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What's Hot in Workers' Comp

What’s Hot In Workers’ Comp - News and Results*

What’s Hot in Workers’ Comp, Vol. 28, No. 5, May 2024

May 1, 2024

NEWS

Congratulations to Kacey Wiedt (Harrisburg, PA) on his selection to the Central Penn Business Journal’s 2024 Power List for Law! The honorees are some of the Central Pennsylvania region’s most significant, influential, and respected leaders in their fields, as chosen by the CPBJ’s editorial leadership team and readers. Learn more here.

Robert Fitzgerald (Mount Laurel, NJ) spoke at the New Jersey Self Insurers Association annual conference. On April 24, Bob and fellow panelists presented, “Open Mic: Ask the Workers' Compensation Experts.”

Shareholder Andrea Rock (Philadelphia, PA) is a panelist for an upcoming webinar hosted by the Workers’ Compensation Section of the Philadelphia Bar Association on May 17. In “Got Pain? How to Recognize and Assess Pain Including the Identification of Pain Generators in Work Injuries and Novel Treatment Options,” the panelists will discuss the issues with pain generators, treatment options and their interaction in workers’ compensation litigation. To register, click here. 

 

RESULTS*

Benjamin Durstein (Wilmington, DE) was successful before the Delaware Supreme Court. The court affirmed the decisions of the Industrial Accident Board and the Superior Court, holding that the employer correctly paid for ketamine infusion treatment in accordance with the Delaware Fee Schedule. As Ben argued, it was the claimant’s burden—not the IAB’s or the employer’s—to present evidence regarding the adequacy of the billing codes utilized. The court directed the claimant to the Workers’ Compensation Oversight Panel as the correct forum to address whether the Fee Schedule amount payable for treatment constitutes reasonable compensation.

Robert Schenk (Philadelphia, PA) successfully had a Claim Petition denied and dismissed. The claimant, a clinical physical therapist, filed a Claim Petition for an alleged work-related injury to the knee that occurred on November 2, 2022. Surgery was recommended and, although the claimant had health care benefits and short-term disability available from the employer, she was adamant her claim needed to be processed as a workers’ compensation claim. The claimant did not miss time from work because of the injury. The workers’ compensation judge denied and dismissed the Claim Petition, finding the claimant did not sustain a work-related injury. The judge found it significant that the claimant’s prior history of knee problems required constant medical treatment. The judge also found noteworthy the claimant’s failure to move forward with a recommended knee surgery despite having alternative benefits from her employer. Finally, the judge found significant the medical opinion of the employer’s medical expert, who opined that the claimant had loose bodies in her knee which, from time to time, might cause a transient onset of symptoms, but that the need for surgery was related to the pre-existing degenerative changes.

Michael Duffy (King of Prussia, PA) received a favorable decision granting the employer’s termination petition. In this matter, the claimant had sustained injuries to her low back as a result of a work injury wherein she was struck in her back by a coworker opening a door. The claimant alleged she sustained additional injuries, including multiple disc herniations. After subpoenaing records from various providers, Mike was able to show that the claimant had been in multiple car accidents and had prior injuries to her low back that resulted in treatment lasting up to a few months prior to the work injury. The claimant had denied any prior injuries during her testimony before the workers’ compensation judge. The judge found the employer’s expert credible and terminated the claimant’s benefits.

Michael Sebastian (Scranton, PA): 

  • Received a favorable decision from the Workers’ Compensation Appeal Board. The claimant had injuries to his cervical, thoracic and lumbar spine. He already had a lumbar fusion and was looking to have surgery on his cervical spine. Mike argued that the claimant was a seasonable employee and had a low average weekly wage (AWW). The workers’ compensation judge found that the claimant was a seasonal employee but did not correctly calculate the AWW, and the Appeal Board found that the claimant was a seasonal employee and calculated his AWW at $60.00 per week. They reversed the judge’s decision on the medical bills, finding that the claimant did not meet his burden of proof. They also reversed the judge’s decision, finding that the claimant did not prove he had C6-7 severe spondylosis and right leg radiculopathy.
  • Received a favorable Appeal Board decision on the claimant’s appeal to Judge Snyder’s decision which, in part, suspended the claimant’s benefits. A Claim Petition was filed alleging a work injury and specific loss of half of the left ring and middle fingers and an injury to the left pinky finger. The judge found that the claimant suffered a work injury but did not prove sufficient bone loss to meet the standard for a specific loss. The judge suspended the claimant’s benefits based upon the testimony of the employer’s witness and the claimant’s doctor. During cross examination, the claimant’s doctor testified that the claimant was released to return to work and that a one-armed job was available to the claimant, which he refused. The Appeal Board affirmed the decision on all issues, finding that the bone loss was not a substantial part of the first phalange of a finger. They also upheld the workers’ compensation judge’s findings suspending the claimant’s benefits based upon the claimant’s expert’s testimony that he could perform one-arm work as of the date of the job offer.

*Prior Results Do Not Guarantee a Similar Outcome 

 

What’s Hot in Workers’ Comp, Vol. 28, No. 5, May 2024, is prepared by Marshall Dennehey 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

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CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

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Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

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