Casualty Department

Harold Moroknek and Steven Saal (Westchester, NY) successfully obtained summary judgment dismissing all claims against our clients in a motor vehicle matter in Supreme Court, Suffolk County. The plaintiff brought a claim against our clients, a bus company, our insured driver and a school district, for negligence related to a motor vehicle accident that occurred when the plaintiff was working as a bus monitor for the bus company. The school district had contracted with the bus company for transportation services. In our motion, we argued that the bus company, as the plaintiff’s employer, was protected by the exclusive remedy provision of the workers’ compensation law, that our driver was protected as a “co-employee,” and that the school district could not be negligent for the actions of its independent contractor. The plaintiff sought to argue that she was an employee of the bus company’s parent company and was not precluded by the workers’ compensation Law. The court rejected these arguments and confirmed that the plaintiff, as an employee of the bus company, who received workers’ compensation benefits, could not sustain negligence claims against her employer. It dismissed all claims against our clients. The court further reconfirmed a prior appellate ruling speaking to the corporate structure of the bus company that could protect the company from further suits seeking to disregard the workers’ compensation law.

In another matter successfully handled by Harold and Steven, they obtained summary judgment dismissal of all claims against our client in a premises liability case in Supreme Court, Nassau County. ​The plaintiff brought a claim for injuries sustained due to an alleged slip-and-fall in a bus yard owned by our client. The premises was leased to a transportation company that employed the plaintiff. The motion for summary judgment argued that our client, as an out-of-possession landlord, is only liable for injuries sustained due to a structural defect or specific statutory violation, neither of which were supported by the record. The plaintiff opposed our motion, arguing that since the current property manager did not sign the lease amendment and was not managing the property at the time of the incident, he lacked personal knowledge and could not authenticate the lease. The court rejected these arguments, and the plaintiff’s claims were dismissed in their entirety against our client.

Alex Yoder (Harrisburg, PA) was successful in having a large highway blasting company dismissed on a joint motion for summary judgment with other highway construction companies in a Cumberland County case. The plaintiff sued our client and several other contractors on an active highway construction site, alleging the various construction companies were negligent for failing to properly warn drivers sufficiently ahead of potentially stopped traffic. The plaintiff was recently convicted of DUI and was assigned an interlock device that required him to periodically provide samples while operating his truck, or else the vehicle would be disabled. The plaintiff testified that, while looking for the interlock device on the floor of his truck, he put his head under the dashboard for several seconds while traveling in excess of 70 mph. When he looked up, traffic had stopped, and he rear-ended a tractor trailer. The accident occurred several miles from the active construction, and no other drivers were involved in accidents at or near that location. The court ultimately found the construction defendants were not the proximate cause of the plaintiff’s accident and dismissed all of the defendants, with prejudice. The plaintiff did not appeal the decision.

Kevin McKeon and Adam Fogarty (Mount Laurel, NJ) obtained summary judgment relief for the owner and driver of a tow truck involved in fatal, multi-vehicle crash. ​Our clients’ truck was struck from behind while towing another vehicle. The striking vehicle was a New Jersey Department of Corrections van, which was transporting two inmates and two correctional officers. The impact caused injuries to both occupants of the tow truck and to all four occupants of the Department of Corrections’ van, including fatal injuries to one of the inmates. Our clients were target defendants of the plaintiff correctional officer, who was a passenger in the van, and given the immunity provided to the Department of Corrections and its driver by the workers’ compensation bar. At the conclusion of discovery, the court accepted our motion based upon the argument that a jury could not reasonably find our driver negligent despite the allegation that he had been driving too slowly, and despite the fact that he had received numerous citations for motor vehicle and towing violations. Our argument relied upon the uncontroverted expert opinions reached by the State Police’s accident investigator and our own accident reconstruction expert.

Ralph Bocchino and Nicholas Bowers (Philadelphia, PA) obtained summary judgment in a construction accident case in the Philadelphia Court of Common Pleas. ​Our client was the roofing contractor on a project in Philadelphia. The plaintiff, an employee of a subcontractor of our client, was injured when he fell through a skylight cutout in the roof. He fell approximately fifteen feet and sustained injuries, including a broken hip (requiring ORIF) and fractured vertebra. The plaintiff was hospitalized for one month. The last settlement demand was $2.5 million. We moved for summary judgment based upon arguments that our client, the roofing contractor who did not occupy the site nor control the work, breached no duty of care to the plaintiff. The court agreed and granted summary judgment.

Judith Ring and Angeline Panepresso (Philadelphia, PA) obtained summary judgment and dismissal of all claims against our client in a construction injury/premises liability case in the Philadelphia Court of Common Pleas. The plaintiff brought suit against our client, the general contractor on a building expansion project at a car dealership, which had subcontracted all work associated with the installation of overhead doors on the project. The plaintiff was injured while walking under one of the overhead doors in one of the service bays, when the door unexpectedly came down and struck her in the head. We moved for summary judgment based upon arguments that our client, who had no involvement with the manufacture, purchase, or distribution of the involved door, and who no longer occupied the site and did not control the work, neither owed nor breached any duty of care to the plaintiff. The court agreed and granted summary judgment.

Michael Alberico and Lary Zucker (Mount Laurel, NJ) obtained a summary judgment ruling that the plaintiff in a first-party New Jersey dram shop claim must be found comparatively negligent as a matter of law. ​The judge’s ruling has potential to be applied in all first-party New Jersey dram shop claims. Michael and Lary also obtained a restaurant’s dismissal with prejudice via motion for summary judgment based on the plaintiff’s failure to establish a dangerous condition existed on our client’s property.

Christopher Power (Melville, NY) was successful in having a New York Labor Law case dismissed on summary judgment. Our client owned a parcel of land upon which a building was being erected. On December 14, 2013, a Saturday morning, the plaintiff, an employee of a subcontractor, was at the premises cleaning up the worksite. The plaintiff was standing on top of a company-owned, work van in the parking lot, securing ladders to the roof of the van, when he slipped and fell off the van to the ground, sustaining serious leg and knee injuries. He underwent two knee surgeries and was also told he needed back surgery. The plaintiff sued our client, as the owner of the property, and the general contractor under Labor Law sections 200, 240 and 241(6). Labor Law section 240, also known as the “scaffold law,” imposes absolute liability on the landowner for height-related injuries that occur at construction sites when someone falls off a building or a building under construction. Section 241(6) involves violations of the Industrial Code. At the close of depositions, Chris filed a summary judgment motion to dismiss all allegations of the Labor Law because our client was not directing or controlling the plaintiff when he was injured. Chris further argued that the scaffold law did not apply because the plaintiff fell off a motor vehicle that was in the parking lot adjacent to the construction, and not a building or anything construction-related,. The co-defendant joined our motion, and the plaintiff filed a separate motion for summary judgment. The court granted our motion in its entirety, as well as the co-defendant’s motion, and denied the plaintiff’s motion.

Vlada Tasich and Michael Salvati (Philadelphia, PA) obtained summary judgment on behalf of a property owner in a workplace injury/premises liability case. ​The defendants are two family-owned companies that grow, process and sell mushrooms. Our client owned the property, and the other defendant operated the business there. The plaintiff worked for an independent company that was contracted to load compost into the defendants’ mushroom beds. The plaintiff encountered a problem with the equipment used to lift the compost (the source of the problem is in dispute). A connection between components broke, and a metal pan fell on the plaintiff’s arm, crushing it. The plaintiff alleged he had previously reported the problem to the defendants. Vlada and Mike successfully argued that the defendant who owned the property was a “landlord out-of-possession” and not responsible for injuries to third parties on the premises. The plaintiff argued that his complaint to one defendant about the equipment problem was notice to both because both companies were owned by the same family. The court ruled that the shared ownership of the companies did not impose a legal duty on a defendant that was not otherwise responsible for the property.

Michael Salvati (Philadelphia, PA) obtained dismissal of his client from a suit pending in the U.S. District Court, Eastern District of Pennsylvania, on the basis of lack of personal jurisdiction. ​His client, a Texas-based wholesaler, had sold a kitchen tool to a national retail chain, also based in Texas. The retailer stocked the item in its store in King of Prussia, Pennsylvania. While shopping there, the plaintiff picked up the item, which allegedly fell out of its package and onto her foot, breaking her toe. Mike successfully argued that the wholesaler was based in Texas, had acted entirely within Texas and was not susceptible to jurisdiction in Pennsylvania. Further, because the wholesaler did not deliberately target Pennsylvania with its product, the “stream of commerce” theory of jurisdiction did not apply. The court agreed, did not allow jurisdictional discovery and dismissed our client from the case.

Michael Kelly (Melville, NY) obtained summary judgment, dismissing all claims against our client, in a slip and fall case that involved injuries sustained by a nurse in the bathroom of a suite rented by her employer in the insured’s building. The plaintiff initially claimed the fall was caused by water on the floor but later “adjusted” this theory to include poor lighting, resulting from a delay in the motion detection light operation. The plaintiff moved for partial summary judgment, and we cross-moved for summary judgment, arguing that our client, as a landlord out-of-possession, owed no duty to inspect and clean the floors in tenant spaces, did not install the light fixture and did not assume a duty by course of conduct. The claimed injuries (and exposure) were significant, involving nearly every orthopedic and neurologic system in the spinal column and causing permanent disability.

Bradley Remick (Philadelphia, PA) and Michael Alberico (Mount Laurel, NJ) successfully obtained dismissals with prejudice of an international power tool manufacturer and its subsidiaries via a motion to dismiss, arguing jurisdictional and service failures.

Michael Alberico (Mount Laurel, NJ) also successfully obtained the dismissal, with prejudice, of a Fortune 100 utility company via motion to dismiss, arguing that the plaintiff’s fictitious party pleading was insufficient to overcome the applicable statute of limitations.

Walter Klekotka and Andrew Vallejo (Mount Laurel, NJ) obtained summary judgment for their client, a large retail store, in a premises liability case. The plaintiff brought suit, alleging negligence for a physical altercation between a former employee and a customer. The plaintiff argued that the former employee held himself out as an employee, and the store was negligent in failing to protect the customer from criminal acts. We moved for summary judgment as the assailant was a former employee and there was no foreseeability to put the store on notice for any criminal acts by a third party. At oral argument, we established that the record was clear as to the former employee’s status at the time of the incident and that the opposition arguments (the employee was stocking shelves and wearing clothing similar to the store uniform) were not genuine issues of material fact. The judge agreed and granted summary judgment for our client.

Matthew Noble (Philadelphia, PA) obtained a defense verdict after a two-day trial in Lehigh County. ​On February 27, 2015, the plaintiff purchased a new 2015 Jeep Cherokee from the defendant. The plaintiff claimed that his five and one-half-year-old vehicle was a lemon because the transmission was replaced after two repairs at 20,000 miles and then a battery replacement at 52,000 miles. The plaintiff asserted claims under the Pennsylvania Lemon Law, Magnuson Moss Warranty Act, Uniform Commercial Code, and the Pennsylvania Unfair Trade Practices and Consumer Protection law that the vehicle’s repair history was wholly related to an intermittent and still unrepaired power train issue. The defense successfully proved through witness and expert testimony that the plaintiff’s two mechanical problems were unrelated. The repair work done by the dealership under the warranty was effective, reliable and fixed both problems.

Leo Bohanski (Scranton, PA) obtained summary judgment in a fire loss remediation claim. The plaintiff brought a breach of contract claim against the insurance carrier and the remediation repair company for damages sustained from an alleged faulty remediation effort, after a covered fire loss incident. The insurance carrier filed a motion for summary judgment, invoking the one-year suit limitation clause of the policy. The plaintiff responded by arguing the claim against the insurance carrier fell under Section I of the policy seeking the recovery of depreciation value. The plaintiff asserted that there was ambiguity in the insurance policy with the different sections pertaining to the suit limitation clause. The court ruled that no ambiguity existed in the policy read as a whole and granted the carrier’s motion for summary judgment.

Health Care Department

Charles Gura (Westchester, NY) and Michael Kelly (Melville, NY) obtained an order from the New York Appellate Division, Second Department affirming the lower court’s dismissal of a medical malpractice action. ​The plaintiff, a New York resident, claimed she was improperly prescribed Dilantin by New Jersey physicians after a motor vehicle accident in New Jersey. She further alleged that she suffered an allergic reaction to the Dilantin while recovering from the motor vehicle accident in New York. The lower court dismissed the case due to lack of personal jurisdiction, and the Appellate Division affirmed. The Appellate Division held that New York could not exercise long arm jurisdiction over the defendants since the New Jersey medical providers came into contact with the plaintiff because she sought treatment from them in New Jersey and because the medical providers had no contacts with “New York itself.”

Bradley Goewert (Wilmington, DE) obtained a dismissal of claims against a large health care provider in Delaware. ​The suit accused the hospital and emergency room staff of negligence in treating injuries sustained from an assault. The plaintiff’s claims were dismissed as a result of our motion to dismiss on the statute of limitations and the plaintiff’s failure to effectively toll the statute through an effective notice of intent to investigate.

Matthew Keris and Robert Aldrich (Scranton, PA) obtained entry of judgment of non pros based upon the plaintiff’s failure to timely and properly file a Certificate of Merit (COM) in accord with Pa.R.C.P. 1042.3. ​The plaintiff filed a lawsuit against a nursing home chain and its management company, raising claims of negligence and corporate negligence pursuant to the Wrongful Death and Survival Acts. With the complaint, the plaintiff attached an expert report from a nursing expert but did not attach a Certificate of Merit. The defendants filed a Notice of Intent to Enter Judgment of Non Pros, and judgment was entered after the plaintiff did nothing in response. The plaintiff then filed a Petition to Strike/Open the Entry of Judgment of Non Pros, arguing that the expert report attached to the complaint constituted a Certificate of Merit. The court originally granted the plaintiff’s petition, but ultimately overruled itself after the defendants sought reconsideration. The court found that the plaintiff failed to timely and properly file a Certificate of Merit and, once on notice of the defendants’ intent to enter judgment of non pros, failed to file a correct Certificate of Merit or file a motion to determine whether the plaintiff was required to file a Certificate of Merit. Also, according to the court, the plaintiff failed to follow the local rules of civil procedure at the time of filing the Petition to Strike/Open the Judgment of Non Pros, which resulted in the petition languishing for over six months. The court noted that the plaintiff’s “mistake of law” claim during oral argument did not satisfy the legal mandate for a “reasonable explanation or legitimate excuse for the conduct giving rise to the entry of judgment of non pros.” The court ultimately found that the plaintiff’s repeated failures to comply with the applicable rules placed the case “beyond the purview of equitable relief,” and, therefore, reinstated the entry of judgment and dismissed the plaintiff’s complaint, with prejudice.

Chanel Mosley (Orlando, OH) successfully appealed an emergency restrictive order issued by the Department of Health against a physician’s license. ​After allegations by a patient of sexual misconduct, the Department issued an emergency order restricting the physician’s license, thereby preventing him from treating any female patients in his practice. On appeal, the First District Court agreed that the emergency order was facially insufficient to demonstrate that sexual misconduct occurred or that an immediate threat of danger to the public existed, thereby quashing the emergency order and removing the restrictions on the physician’s license to practice medicine.

Professional Liability Department

Howard Mankoff and Michele Michael (Roseland, NJ) obtained summary judgment in an employment suit. The plaintiff was a former employee who filed suit against our non-profit agency client, asserting claims of gender discrimination in violation of the New Jersey Law Against Discrimination and retaliation in violation of the New Jersey Workers’ Compensation Act. This matter involved a long and contested period of discovery, including extensive discovery demands, complex e-discovery and extensive motion practice. During the course of discovery, we were successful in obtaining a motion for reconsideration concerning the production of e-discovery data and other documentation lacking in relevance and proportionality to the matter. We then filed a motion for summary judgment as to both counts in the plaintiff’s complaint, arguing that the plaintiff failed to establish a prima facie claim of discrimination on the basis of gender, as the plaintiff failed to present any evidence demonstrating discrimination or mistreatment on the basis of gender. We further argued that the plaintiff failed to establish a claim of retaliation under the New Jersey Workers’ Compensation Act because the plaintiff failed to establish any nexus between the termination and the filing of a workers’ compensation claim. Our motion for summary judgment was granted in its entirety, with the court finding that the plaintiff was terminated for legitimate, nondiscriminatory reasons. This was a very important decision for our non-profit agency client, and the agency was able to gain vindication in the resolution of this matter.

Lila Wynne and Kevin Bright (Mount Laurel, NJ) were successful in defeating an Order to Show Cause and ultimately prevailed in the coverage action for an insurance carrier. ​The plaintiff filed an Order to Show Cause to compel the defendants to defend and indemnify it in connection with a leak that occurred at a retail gasoline service center. A company retained to perform recent soil and groundwater sampling at the site punctured a 10,000-gallon underground storage tank. The plaintiff did not have the funding to perform the investigation or remediation of the property and, therefore, filed the Order to Show Cause. The court denied the plaintiff’s application and ultimately dismissed the coverage action against our client.

Lila and Kevin also successfully recovered more than $500,000 in a subrogation lawsuit filed against a fuel oil delivery company that delivered fuel oil to the insured’s underground storage tank while it was leaking. ​The settlement occurred after more than nine hours of mediation via videoconferencing.

Christopher Conrad (Harrisburg, PA) successfully defended a real estate agency and its agents, who represented the buyer/plaintiff in his purchase of a home in Dauphin County. ​The plaintiff claimed the agents failed to disclose to him prior to settlement that there were alleged defects in the A/C system and heat pump, and that the roof was old and needed to be replaced. The plaintiff paid for a home inspection report of the property, which noted the age and condition of the A/C, heat pump and roof, but the plaintiff claimed he never received the report, even though he discussed the report with one of the agents and authorized the agent to reply to the report on his behalf. The reply specifically asked the sellers to make repairs to the roof. As part of the defense, we argued that the plaintiff’s claims were barred by the release language in the agreement of sale, which specifically stated that the plaintiff agreed to release the agency and its agents from claims relating to any defects or conditions on the property, and that the release by its terms survived settlement. In addition, we argued that the plaintiff waived his claims, at least as to the costs to replace the A/C and heat pump, when he declined in writing a home warranty plan that was offered to him prior to settlement by the agents. By signing the home warranty application form stating he was declining the plan, the plaintiff agreed in writing not to hold the agency and agents liable for the repair or replacement of a system that would otherwise have been covered by the plan. We introduced testimony that that the A/C and heat pump would have been covered if they did need to be repaired or replaced. The court found for the agency and agents and entered judgment in their favor.

Mark Kozlowski (Scranton, PA) obtained a dismissal on behalf of a municipality related to a zoning issue. The plaintiff requested a zoning variance after he constructed a fence on a public right of way. The local zoning hearing board granted the request. However, the township filed an appeal with the Court of Common Pleas challenging the zoning hearing board’s ability to grant a variance onto public property. The court agreed with the township and overturned the zoning hearing board’s decision, finding that the Board lacked the authority to give away public property through the grant of a zoning variance. In essence, the court concluded that local zoning laws have no application to the resolution of real estate disputes between parties, and that the Zoning Hearing Board may not allow a trespass by calling it a variance. The plaintiff then filed a complaint against the township for abuse of process and negligence, claiming the township had no right to challenge the zoning hearing board decision. Preliminary objections were filed on behalf of the township, raising several different reasons for dismissal, including governmental immunity and a failure to exhaust administrative remedies. The court sustained the preliminary objections to the fourth amended complaint, finding that there was no version of events that would give rise to a cause of action against the township.

Jack Slimm (Mount Laurel, NJ) obtained an order of dismissal in favor of a municipality in connection with a lawsuit filed by a worker. ​The worker sustained catastrophic injuries as a result of a mishap on the job which caused him to fall from the roof of a condominium project under construction. This was a multi-party action in which Jack’s client, the municipality, issued the permits but failed to carry out the inspections. Notwithstanding, Jack was able to demonstrate immunity under the New Jersey Tort Claims Act, and the court entered the order of dismissal.

Richard Goldstein and Matthew Behr (Mount Laurel, NJ) successfully defended a qui tam action under the False Claims Act, 31 U.S.C. §§ 3729, et seq. In 2016, the relator/plaintiff brought her action against the clients, post-secondary educational institution and its president/CEO, alleging the institution falsified its student eligibility and attendance/academic records in order to receive federal funding related to student financial aid. The relator also alleged that she was terminated from employment in retaliation when she informed the institution’s management team of the irregularities in student records. After three years of investigation, the U.S. Department of Justice declined to intervene, and the relator’s civil claims were permitted to proceed. Pursuant to the District Court’s Individual Judicial Preferences and Procedures, we filed a pre-motion Letter setting forth the clients’ legal arguments in their anticipated motion to dismiss. The District Court held an in-person conference to discuss the respective parties’ positions and ordered the relator to amend her complaint to cure the pleading deficiencies. In effect, this constituted a successful motion to dismiss the initial complaint, forcing the relator to amend. The relator’s attempt to cure the deficiencies noted by our attorneys and the District Court proved to be futile. A motion to dismiss the amended complaint successfully pointed out the continuing pleading deficiencies regarding “materiality” of the purported false claims pursuant to the controlling law. Accordingly, the claims against the individual client president/CEO were dismissed with prejudice. The District Court granted leave for the relator to move to file a second amended complaint; however, the District Court also terminated the entire case administratively, subject to the relator’s anticipated motion to amend, intimating the District Court’s suspicion as to the viability of the relator’s remaining claims. The relator’s failure to timely move to amend will result in dismissal of this qui tam action, with prejudice, in its entirety.

Adam Levy (Mount Laurel, NJ) obtained partial summary judgment on behalf of his client, a high-end residential home architectural professional. ​The issue related to the validity of a limitation of liability clause found in the client’s contract for architectural services. The Princeton home that was the subject of the architectural services contract was originally a planned $4 million build. The budget “blossomed” to $10 million based on various changes made by the owner. Damages against our client were assessed by the plaintiff’s experts at approximately $1.2 million. Pursuant to the court’s ruling that the the limitation of liability clause was valid, our client’s exposure is now limited to the approximate $250,000, representing the fees charged for our client’s architectural services.

Workers’ Compensation

Michele Punturi (Philadelphia, PA) successfully defeated a workers’ compensation appeal involving a claim penalty/termination petition on behalf of a worldwide youth adult development organization. ​A Medical Only Notice of Compensation Payable acknowledged liability for a skull contusion and denied any associated disability. The claimant alleged injuries to the cervical spine, head, eyes, a concussion and post concussive syndrome, resulting in total disability. It was the claimant’s position that the judge failed to render a well-reasoned decision in favoring the opinions of the three defense expert doctors and seven fact witnesses who challenged the mechanism of injury as well as disability. The Appeal Board concluded that the judge summarized the relevant evidence, rendered credibility determinations, provided objective explanations for those credibility determinations and was justified in granting the termination petition. This case demonstrates the impact of a thorough investigation and the importance of strong factual and medical witnesses.

Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition and a petition to review a Utilization Review determination on behalf of a Philadelphia-based transportation authority. ​The case has direct impact on the workers’ compensation system since the termination petition dealt with the issue of a “piecemeal” full recovery—a petition seemingly banned by recent case law. The UR review petition dealt with the systemic flaws in the UR process that resulted in a collateral attack on a previous workers’ compensation judge’s decision regarding reasonableness and necessity of medical treatment. The judge opined that the claimant fully recovered from a work-related knee injury and post-injury surgery, despite part of the meniscus in the knee now being missing. Tony successfully argued that the missing piece of meniscus did not functionally impair the injured worker. Moreover, Tony convinced the court that a partial termination of benefits is proper in this scenario as the original petition was filed only with regard to the claimant’s knee injury and extricated itself from any additional compensable injuries. The judge also agreed that the UR determination issued in the matter collaterally attacked a previous judge’s decision on the issue of reasonableness of chiropractic treatment. This decision exposed the problem of final decisions of the judge on reasonableness of medical treatment being attacked by the UR process when an injured worker switches treating providers or files new prospective reviews.

Tony also successfully defended a large Philadelphia-based law firm in the litigation of a claim petition alleging post-concussion syndrome. ​The claimant slipped and fell at work, injuring his head and neck. The carrier accepted a contusion injury. The claimant alleged multiple additional injuries including cognitive maladies, memory loss, speech problems, vision convergence, photophobia, cranial nerve injuries and balance issues. The claimant testified while wearing sunglasses due to his alleged photophobia condition. Thirteen hours of surveillance video disputed the claimant’s alleged symptoms (including his need for sunglasses). Prior health records revealed the claimant to be treating for all of his alleged cognitive problems before the work incident ever took place. The claimant’s first treating neurologist’s records supported the claimant’s symptoms to be non-anatomical. The carrier’s IME physician found the claimant to have suffered non-disabling contusion injuries which resolved. The judge found in favor of the employer and the carrier, ruling that the claimant’s injuries were limited to contusions and had fully resolved. The claimant appealed the case to the Workers’ Compensation Appeal Board, arguing the judge capriciously disregarded the evidence. The Board held that the claimant’s appeal was a veiled collateral attack on the workers’ compensation judge’s credibility determinations and affirmed the judge. At issue were potential life-time indemnity benefit payments and over $1 million in medical expenses.

Tony successfully prosecuted suspension and termination petitions and defended a claim petition for a local mushroom distribution company. The claimant sustained a work injury when he slipped and fell during the course and scope of his employment. He returned to work in a light-duty capacity and then abandoned the job shortly thereafter. He filed a claim petition to add concussion, neck and low back injuries. Testimony of fact witnesses proved that the claimant abandoned his job in bad faith, while medical testimony proved the claimant to be fully recovered from his accepted injuries. Cross examination of the claimant’s medical expert demonstrated the expert’s lack of knowledge as to the facts of the claim and mechanics of the injury. It was further established through the cross examination of the claimant that he lacked any credibility regarding allegations of the head, neck or low back injuries. The suspension and termination petitions were granted, and the allegations of head/concussion, neck and back injuries were dismissed.

Ashley Eldridge (Philadelphia, PA) and Audrey Copeland (King of Prussia, PA) successfully defended an appeal filed by a co-defendant before the Commonwealth Court. ​A claim petition was preliminarily filed against an uninsured employer, the UEGF, our client and a second insurance carrier. Litigation proceeded on a variety of legal issues, and while the claimant was able to prove an entitlement to workers’ compensation benefits, the primary issue was identifying the liable defendant. Ashley successfully defended the claim petition, and liability was imputed onto the other insurance carrier as the “borrowing employer.” The carrier appealed, arguing that our client was liable, but the Appeal Board upheld the underlying determination. An appeal was taken up to the Commonwealth Court, which affirmed the Appeal Board, finding that the other insurance carrier was liable for workers’ compensation benefits.

Judd Woytek (Allentown, PA) obtained dismissal of a claim petition based upon lack of coverage for the claimant, who was a corporate officer. The claimant suffered injuries, including a degloving of the right leg and a crush injury of the right foot and ankle, as the result of being partially run over by a truck. The claimant was a corporate officer of the employer and was specifically excluded from coverage under the policy of insurance issued by our client. After the judge indicated at a hearing that the documentary evidence we presented clearly showed that the claimant was excluded from coverage, the claimant agreed to dismissal of the claim petition.

Judd also obtained a dismissal of a claim petition in a case where the claimant failed to proceed with his medical evidence in a timely fashion. The claimant alleged bilateral carpal tunnel syndrome and aggravation of primary osteoarthritis of his left thumb. He failed to provide notice of the alleged injury to the employer until after his employment had already been terminated. The claimant testified in support of his claim petition, but then failed to present medical evidence in a timely fashion. The judge granted the claimant two extensions of time, but then dismissed the claim petition without prejudice due to the claimant’s failure to present any medical evidence.

Judd also received a favorable decision from the Appeal Board affirming the modification of a claimant’s benefits based upon a labor market survey. We had successfully litigated a modification petition before the judge based upon a labor market survey and earning power assessment, and the claimant’s benefits were significantly reduced. The claimant appealed to the Appeal Board, which affirmed. The Appeal Board dismissed the claimant’s arguments that the evidence did not support a modification of benefits. The Board affirmed the judge’s decision in its entirety based upon our argument that the judge’s decision was supported by substantial competent evidence.

Robin Romano (Philadelphia, PA) was successful in having a petition for penalties dismissed. The penalty alleged the employer failed to provide proper notice of two Utilization Review requests and determinations and that the claimant, therefore, had no opportunity to file petitions to review these Utilization Review determinations, which had concluded that the treatment by the doctor was neither reasonable nor necessary. The judge found that the claimant failed to establish that he was entitled to a penalty or that the employer violated the Act. The claimant argued that the carrier should have known he was no longer using a post office box, despite never having advised the carrier of the address change, while still admitting that he continued to receive other correspondence from the carrier and others forwarded to him by the post office after the box had been closed for some time. The judge found this testimony lacked credibility.

Shannon Fellin (Harrisburg, PA) secured a favorable decision where the claimant alleged injuries to his back, neck and shoulder while pulling back a hand-cart to avoid hitting a co-worker. The claimant was initially disabled by the panel doctor, then later released to full duty. The claimant’s attorney then referred him to a specialist, who turned out to be a rheumatologist with a workers’ compensation/personal injury practice on the side. The claimant’s medical expert testified that the claimant had been totally disabled for more than one year as a result of a multitude of strains, sprains, irritation, radiculopathy and possible tears. In response, Shannon presented the panel provider, who testified to a full recovery and a release to full duty. Shannon also presented three employer representatives regarding lack of notice, job availability and the claimant’s limited attempt at light-duty work. Ultimately, the judge found the panel doctor and all employer witnesses to be credible. The judge specifically rejected the testimony of the claimant on every issue. The claim and penalty petitions were denied.

Judd Woytek (Allentown, PA) received a decision from the Benefits Review Board (BRB) affirming the denial of a claim for Federal Black Lung benefits. ​The claimant worked as a coal miner for approximately nine years in underground mining. The administrative law judge denied benefits, finding the claimant had failed to establish that he suffered from a totally disabling respiratory condition. The claimant appealed. The denial of benefits was affirmed on appeal. The BRB dismissed the claimant’s arguments that he had additional coal mine employment that would have entitled him to a presumption that his total disability was related to his coal mine employment. The BRB noted that the claimant had failed to prove a total respiratory disability and, therefore, the presumption would not apply irrespective of the number of years of coal mine employment that he proved.

In another matter successfully litigated by Judd Woytek, the claimant alleged he suffered a severely disabling cervical spine injury when he tripped and fell over a rake. He claimed that he did a gymnastic “round off” to try to catch himself and landed on his head. We argued that he was engaged in horseplay and had been attempting a back flip. The claimant was a sole proprietor. We argued several defenses including coverage, notice, and course and scope of employment. The judge found that the claimant had failed to provide notice of his alleged injury to the insurance carrier within 120 days of its occurrence and that, since the claimant was a sole proprietor, the notice provisions of the Act would require him to provide notice to the carrier within 120 days. The claimant did not report the injury to the carrier until over a year later. The claim petition was denied and dismissed.

*Prior Results Do Not Guarantee A Similar Outcome

_{Defense Digest, Vol. 26, No. 3, October 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2020 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}