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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. 29, No. 9, September 2025

September 1, 2025

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.

Firm Highlights

Marshall Dennehey Welcomes Special Counsel David Farkouh and Michele P. Rannie to New York City Office

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Marshall Dennehey Welcomes Special Counsel David Farkouh and Michele P. Rannie to New York City Office

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Event

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. 

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

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.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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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Result

Summary Judgment Obtained in Insurance Coverage Case

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case