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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. 12, December 2024

December 1, 2024

NEWS

Heather Byrer Carbone (Jacksonville, FL) has been recognized as 2024 Florida Trend “Legal Elite NOTABLE - Women Leaders in Law.” Heather is honored for her impact in the field of law, mentorship, and leadership in professional organizations and civic/community service initiatives. Read the news release here.

On November 20, Tony Natale (King of Prussia, PA) was one of the key speakers at the annual Delaware Valley Workers’ Compensation Trust’s (DVWCT) Claim Prevention seminar. This live event was attended by Risk Control employees, managers, police chiefs, and command staff as well as department heads and local government leadership in the townships and municipalities that are administered by the DVWCT. Tony spoke on the importance of presenting unified and global defenses between workers’ compensation, unemployment compensation, internal grievance arbitration and employment law where applicable in cases involving workplace injuries. Tony was able to give examples of this unified directive, citing a current case in litigation involving all of these areas of law and the blue print used to provide a global defense.

On November 15, The Legal Intelligencer published “Goodbye ‘Yellow Freight’ Road?,” by Judd Woytek (King of Prussia, PA). You can read Judd’s article here.
 

RESULTS*

Michael Duffy (King of Prussia, PA) successfully defended against two review petitions where the claimant sought to expand the description of injury from a right shoulder injury to include cervical and lumbar disc herniations, radiculopathy and various psychiatric injuries. The claimant also sought to increase his average weekly wage to a significantly higher expectation rate. The workers’ compensation judge limited the injuries to the right shoulder and rejected the claimant’s expectation rate argument.

Tony Natale (King of Prussia, PA) successfully had a penalty petition, filed against a local university, dismissed on all counts. The claimant sustained an injury to his low back which was accepted as compensable. The claimant returned to work at a modified job, and his benefits were made the subject of a notice of suspension. The claimant worked for several months and never challenged the suspension notice. Thereafter, the claimant left work when his attorney referred him to a new treating doctor. The carrier made some changes to claim data within the WCAIS system (correcting the claimant’s address). As a result of a glitch in the WCAIS system, a new Notice of Compensation Payable was issued based on this data change. The claimant filed a penalty petition, arguing his benefits must be reinstated based on the issuance of the new Bureau document. Tony presented evidence by way of factual testimony and documentary evidence to demonstrate the fallibility of the WCAIS system and exposed the illogical argument made by the claimant’s attorney to the contrary. The court dismissed the penalty in its entirety.

Tony Natale also successfully defended an giant fashion distribution center in the litigation of a Claim Petition. The claimant filed a work injury claim against the fashion center. The matter was assigned to a workers’ compensation judge, and the employer/carrier failed to file a timely answer, relegating all “well pleaded facts” as an admission against interest. As it turned out, the named employer did not have an employer/employee relationship with the claimant, but the late answer acted as an admission of such a relationship based on the pleadings within the claim. Tony was then referred the case to try to mitigate exposure in light of this negative turn of events. Based purely on oral argument detailing the constitutionally offensive result that would be achieved by the interpretation of the case law surrounding late answers, the court dismissed the Claim Petition in its entirety.

Tony Natale also successfully prosecuted a termination petition on behalf of Pennsylvania cabinetry company. The matter originally began as a settlement of a prior 2009 work injury claim. At the settlement hearing, the claimant chose to forego the settlement after learning through Tony’s cross examination of the potential Medicare issues involved in the claim. The employer/insurer moved forward with a new independent medical exam with a renowned orthopedic surgeon. A termination petition was filed, alleging full and complete recovery from the work-related injury, and the court adopted the defense medical opinions as fact. As a result, all benefits were terminated. 

Rachel Ramsay-Lowe (Roseland, NJ) successfully completed a trial on the issue of whether the claimant had a cognitive disorder and whether the carrier should authorized medical treatment for a spinal cord stimulator. After taking testimony of both doctors, the courts agreed with Rachel’s argument that the claimant’s doctor’s report lacked objective medical findings to reach the diagnosis of cognitive disorder and dismissed this from the overall claim. The claimant also requested a hearing to address the carrier’s denial of a spinal cord stimulator. Rachel made the argument the claimant’s injuries are merely a strain/strain of the lumbar spine and that the claimant failed to meet the medical treatment guidelines, which require the claimant receive a psych evaluation to determine if they are a good candidate for the stimulator. In addition, Rachel successfully argued the treatment currently rendered does not show a failed back surgery or a special circumstance where a stimulator should be granted. The court agreed with Rachel’s argument and found the carrier does not have to provide a spinal court stimulator.

Michael Sebastian (Scranton, PA) successfully defended a Claim Petition, which alleged the claimant suffered a work-related cervical injury on June 29, 2023. The claimant testified that he felt a snap in his back, but did not feel the pain right away, and continued to work until July 17, 2024. He then went to the emergency room and subsequently had surgery on July 20, 2023. During cross-examination, the claimant agreed he only suffered a cervical injury, not a low back injury. He further noted he had a prior low back injury on October 19, 2022, for which he filled out an accident report and was sent to a doctor and received treatment. However, the claimant first reported the June 29, 2023, injury on September 1, 2023, and at that time could not recall a specific event that occurred on June 29, 2023. However, he did confirm he heard a snap in his back when the injury did occur. The claimant also agreed he worked full duty, without reporting the incident, until July 17, 2024.

Dr. Martinez, the claimant’s expert, testified the claimant was a partial quadriplegic in the upper and lower extremities. Dr. Martinez opined the claimant had cervical stenosis with myelopathy and, given his underlying condition, was probably going to have surgery at some point in the future but it was aggravated by the constant use of his neck. 

Dr. Henderson, the defense expert, found no evidence of a work-related injury on June 29, 2023, and that the claimant’s symptoms are consistent with cervical stenosis with myelopathy, which is a degenerative condition. Dr. Henderson opined the claimant’s surgery was for a pre-existing condition and the current treatment is unrelated to any alleged work injury. Dr. Henderson reviewed the MRI from from July 17, 2023, noting there were no acute findings. He also reviewed Dr. Martinez’s testimony, noting the claimant did not have disc herniations and that the surgery was not for disc herniations, but for disc issues in the cervical spine that were degenerative in nature. 

The workers’ compensation judge found the claimant to be not credible to the extent he testified he suffered a work-related injury on June 29, 2023, or any disability related to it. He noted the claimant’s demeanor during the hearing was not credible and that his testimony was called into question based upon the employer’s policy that you must immediately report injuries, as he had in the past. The judge also noted the claimant’s description of the work injury, i.e., a snap in his back, conflicted with documentation and the contemporaneous medical records. He also noted that prior similar complaints made on June 26, 2023, and failed to mention a work-related injury in the July 17, 2023, medical notes. The judge noted that subsequent treatment notes also indicate the injury or condition pre-dated the June 29, 2023, work injury date. 

The judge accepted the testimony of Dr. Henderson over Dr. Martinez, noting that Dr. Martinez did not review the cervical MRI films or reports and did not have the medical records immediately pre-dating the work injury, including Dr. Tayoun’s records. The judge found that Dr. Henderson’s history, opinions and testimony were corroborated by the medical records. Further, the judge emphasized that Dr. Martinez, during cross examination, offered inconsistent and illogical explanations that the claimant’s lumbar complaints and lower extremity findings were related to the lumbar condition prior to the work injury, but after that date they were related to the cervical condition. 

Kacey Wiedt (Harrisburg, PA) secured a decision denying the claimant’s Claim and Penalty Petitions. The claimant, a mechanic, alleged he sustained a right ankle fracture, right ankle abscess, and avulsion fracture of the lateral talus as a result of falling off the back of a pickup truck while removing a truck-cap at work. The claimant asserted he was on the clock and on the employer’s premises when the fall occurred. He claimed he was assisting his employer’s friend in removing his truck-cap from his pickup truck. Through employer witness testimony, Kacey was able to show that the claimant was not in the course and scope of employment when he injured his ankle. Kacey proved the claimant assisted the individual with removing the truck-cap for a purely personal reason and not at the direction of his employer. Kacey also showed that the injury occurred shortly after the claimant’s work shift ended and he had clocked out for the day. 

*Prior Results Do Not Guarantee a Similar Outcome 



 

What’s Hot in Workers’ Comp, Vol. 28, No. 12, December 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 © 2023 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

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.

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.

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.