What’s Hot in Workers’ Comp, Vol. 29, No. 9, September 2025

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

RESULTS*

Ryan Hauck (Pittsburgh, PA) successfully defended a Claim Petition that alleged multiple orthopedic fractures and dislocations to the upper extremity, hip and bilateral lower extremitie along with payment of past and future wage loss and medical benefits. The workers’ compensation judge fully adopted our position that the claimant’s injuries did not arise in the course and scope of employment. Through strategic reliance on case law, focused cross-examination and close collaboration with the employer to define property boundaries within a commercial complex, we established that the claimant was injured off the premises during an unpaid lunch break, was not furthering the employer’s interests, and was not engaged in any activity authorized, directed or otherwise related to her employment at the time of her injury. This resulted in a complete denial of the claim and significant savings in litigation spend because the issue was bifurcated before having to participate in costly medical discovery and evidence.

Michael Sebastian (Scranton, PA) was successful in having workers’ compensation benefits suspended on behalf of a multinational food corporation. We filed a Suspension Petition based upon the claimant’s employment prior to being taken out of work. The claimant filed a Reinstatement Petition for a right CTS claim and a Claim Petition for the left CTS claim. The claimant also also filed UR Petitions related to her treatment with Dr. Mercado and Dr. Patel. Prior to the decision, we accepted the left-sided CTS as work related. The issue to be decided by the workers’ compensation judge was whether the claimant was entitled to a reinstatement of benefits because her job required her to work in a cold environment. In the decision, the judge noted that, when the claimant was working, she did not have to touch the cold meat which was on a conveyor belt andshe also wore gloves and cold weather clothing while performing the position. The judge noted that Dr. Martinez did not know the temperature of the claimant’s hands with gloves on nor did he know the temperature of the plant. The judge noted that Dr. Martinez testified that if the claimant’s hand temperature with gloves on was between 70–80 degrees, that should be okay. The employer’s witness testified to an experiment measuring hand temperature with gloves on; her hand temperature with the glove on was initially 87 degrees and, after 3–3.5 hours on the floor, it was 75 degrees. Dr. Talsania testified that cold temperature does not affect CTS. The judge found the claimant’s testimony and Dr. Martinez’s testimony not credible and found the employer’s witness and Dr. Talsania credible in all respects. She also found the UR reports credible concerning the claimant’s treatment. The judge suspended the claimant’s benefits effective May 23, 2024, finding she was capable of performing the quality monitor position in the cold environment. The judge also found that Dr. Mercado’s and Dr. Patel’s treatment after April 11, 2024, were not reasonable or necessary.

Michael Sebastian (Scranton, PA) was successful in having a Claim Petition denied and dismissed. The workers’ compensation judge noted that during her cross examination, the claimant was unsure exactly what day she was injured and that she denied telling co-workers she was injured falling down steps at home. He also noted the claimant denied the histories she gave to the medical providers regarding the location of her back pain, i.e., left vs. right. The judge also noted the claimant reported the date of injury as April 3, 2024, to medical providers and denied having a conversation with the insured. Regarding the employer’s witnesses, he noted that Ms. Woronko testified that the claimant was walking gingerly at work on April 1, 2024, and that she indicated she did something to her back and had to go home, but the claimant did not indicate it was work-related. Mrs. Ellsworth did not recall the claimant getting injured, contrary to the claimant’s testimony. This witness indicated that the claimant told her she was injured at home on Friday when she fell down the stairs. She noted that on April 5, 2024, the claimant was barely able to walk and was breaking down in tears. She also indicated that, had the claimant told her the injury was work-related, she would have reported it. Finally, Ms. Gerrity testified that the claimant had the handbook and went out of work because of her back on April 5, 2024. The claimant called her on a Friday or Saturday, indicating that she had to go to the doctor, but she did not indicate it was work-related. She learned the claimant was claiming it was work-related from another employee, so she told the claimant to fill out an accident report. The judge also accurately summarized the testimony of the claimant’s expert, Dr. Henderson, and our expert, Dr. Banas. On cross examination, Dr. Henderson was unable to explain how the claimant’s symptoms went from the right side to the left side and that the claimant did not complain of S1 joint problems, i.e., left-sided symptoms, until six weeks after the injury. The judge found the claimant not credible due to her inconsistent testimony and did not accept her testimony that she suffered a work-related injury. He found the employer’s witnesses credible and that they sufficiently rebutted the claimant’s testimony. He accepted Mrs. Ellsworth’s testimony that the claimant fell down the stairs at home prior to the alleged incident. The judge also accepted the testimony of Dr. Banas over Dr. Henderson, finding that the claimant only had a lumbar strain and had fully recovered. The judge determined that the claimant failed to meet her burden of proof that she sustained a work-related injury and was not entitled to disability benefits.

Benjamin Durstein (Wilmington, DE) successfully had a Petition to Determine Compensation Due dismissed. Following an evidentiary hearing, the Industrial Accident Board determined that the claimant did not meet the burden to prove there was any accident that constituted an “untoward event” that occurred on February 1, 2022, which is a required element of the Nally successive carrier/subsequent accident analysis. Nally requires that an “untoward event” beyond the normal duties of employment is required in order to shift liability from the first employer/carrier to the subsequent employer/carrier. 

Benjamin Durstein (Wilmington, DE) was successful in having a Petition to Determine Compensation Due dismissed. The Industrial Accident Board denied a claimant’s petition, in which she alleged she injured her right ankle, both upper extremities and low back during the course and scope of her employment on April 12, 2022.  The Hearing Officer did not find the claimant’s account of the accident to be credible given the inconsistencies with her actions before and after the work accident and the lack of supporting evidence.

*Prior Results Do Not Guarantee a Similar Outcome 

 

NEWS

We are proud to highlight the Workers’ Compensation Department’s 13 attorneys who have been recognized in the 2026 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America in the area of Workers’ Compensation Law – Employers. 

Our 2026 Best Lawyers in America:

Our 2026 Best Lawyers: Ones to Watch:

Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. 

 

What’s Hot in Workers’ Comp, Vol. 29, No. 9, September 2025, 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 © 2025 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.