.

What's Hot in Workers' Comp

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

What’s Hot in Workers’ Comp, Vol. 27, No. 9, September 2023

September 1, 2023

NEWS

Elias Hassinger (Philadelphia, PA) will co-present at the 2023 Philadelphia Bar Association’s Bench-Bar & Annual Conference on September 22, 2023. In “Proper Identification of Pain Generators in Work Injuries/Personal Injuries and Novel Treatment Options,” Eli and the other panelists will explore proper identification of pain generators and novel treatment options and how they may affect the workers' compensation claim.

Michele Punturi (Philadelphia, PA) will co-present “Getting Caught with Your Hand in the Proverbial Cookie Jar” at this year’s ClaimsXchange in Philadelphia. In this presentation, the panel will discuss best strategies for investigating, uncovering, and deterring fraudulent acts while exploring methods to recover monies paid out to fraudulent actors. They will also examine how fraud impacts the claim value and how to counteract its debilitating effects. For more information, visit: https://www.theclaimsx.org/getting-caught-with-your-hand-in-the-proverbial-cookie-jar.  
 


 

RESULTS*

Greg Bartley (Roseland, NJ) successfully defended a case involving the cancellation of a workers’ compensation policy. The case involved a company that had failed to pay their insurance premium on its workers’ compensation policy. The carrier notified the insured company that the premium had not been received and that the carrier was taking the necessary steps to cancel the policy. The carrier complied with rules for policy cancellation pursuant to the New jersey Department of Labor. The case involved a worker who was injured on the day after the policy was cancelled. The company, on the day after the worker’s injury, electronically paid the premium. The day following receipt of the policy premium, the carrier issued a new policy covering the company. When given notice of the claim, the carrier denied it based upon the cancellation of the policy. The petitioner filed a claim petition, alleging that the failure to pay the premium should not deny him coverage, as the payment of the premium and subsequent issuance of the new policy amounted to a mere lapse in coverage and the carrier’s acceptance of the premium should result in the coverage being reinstated as of the date of cancellation, not the date of the new policy. After numerous hearings over more than two years and two judges, who supported the position of the petitioner, Greg argued the case with all parties present. The court agreed that the cancellation was legally effective and, therefore, entered an order of dismissal as to the carrier.

Ben Durstein (Wilmington, DE) was successful in having the Delaware Superior Court affirm the Industrial Accident Board’s decision that the employer correctly paid for ketamine infusion treatments. The Board had found that these treatments were properly paid pursuant to the Delaware Workers’ Compensation Fee Schedule. The court rejected the claimant’s argument that Section 2322(b) of the Workers’ Compensation Act required a higher payment for the “reasonable cost” of the treatment.

Adam Huber (Mount Laurel, NJ) successfully obtained orders for dismissal with prejudice on two Medical Provider Applications. Two separate New Jersey medical providers alleged they were entitled to additional money for medical treatment provided in New Jersey to a New Jersey resident. Each provider claimed that, because the injured worker who received the treatment was a current resident of New Jersey and treatment was rendered in New Jersey, that provided sufficient contact for the court to exercise jurisdiction for a Medical Provider Application and bills should be paid at a usual and customary rate, as opposed to New York’s fee schedule. The worker’s compensation claim that resulted in the Medical Provider Applications was a New York claim, with no New Jersey contacts for the parties at the time of the injury. The injured worker only later moved to New Jersey and received medical treatment with New Jersey providers, who were then paid per the New York fee schedule. The providers’ billed amounts were $221,591.55, $6,157.50, and $6.157.50 for three dates of service. The employer made payments in the amount of $55,488, $1,401.83, and $740.42, respectively, per the New York fee schedule. Adam successfully argued to the court that, because it would not have been able to exercise jurisdiction over the underlying worker’s compensation claim, it would not be able to exercise jurisdiction over the two resulting Medical Provider Applications. Therefore, the providers could not seek additional money in New Jersey based on its usual and customary standard, as opposed to New York’s fee schedule. This saved the employer up to $176,276.30 in potential medical payments. Both Medical Provider Applications were dismissed with prejudice.

William Murphy (Roseland, NJ) successfully obtained orders for dismissal with prejudice where two New Jersey medical providers alleged they were entitled to additional monies for medical treatment provided in New Jersey to a New Jersey resident. The underlying accident involved a truck driver who resided in New Jersey, regularly worked in New Jersey, but sustained injuries in Massachusetts. While the injured worker initially filed a New Jersey workers’ compensation claim, he subsequently opted to pursue his claim in Massachusetts, in part, because Massachusetts allowed him to select his own treatment providers (unlike New Jersey, where the employer designates the treatment providers). Each provider claimed that, because the injured worker was a resident of New Jersey, worked in New Jersey and treatment was rendered in New Jersey, there was sufficient contact for the court to exercise jurisdiction for a Medical Provider Application. As such, they claimed their bills should be paid at New Jersey’s standard of a usual and customary rate, as opposed to Massachusetts’s fee schedule. The providers’ billed amounts were $173,927.52 and $128,088.00. The employer made payments in the amount of $13,872.87 and $7,149.01, respectively, per Massachusetts’ fee schedule. William successfully argued to the court that, because the injured worker had opted to pursue a Massachusetts workers’ compensation claim and had selected these medical providers pursuant to said claim (as a New Jersey claim would have required employer-approval), the payment of these medical providers should be governed by Massachusetts’ workers’ compensation system. Therefore, the providers could not seek additional money in New Jersey based on its usual and customary standard, as opposed to Massachusetts’ fee schedule. This saved the employer up to $280,993.64 in potential medical payments. Both Medical Provider Applications were dismissed with prejudice.

Tony Natale (Philadelphia, PA) successfully defended a claimant’s reinstatement and review petitions and prosecuted the employer’s termination petition. The claimant sustained traumatic injuries when the vehicle he was operating was targeted for collision by a mentally disturbed individual trying to commit suicide. The claim was accepted as compensable, and eventually, the claimant was able to return to work full duty. Nine years later, the claimant alleged his right to reinstatement to total disability and payment of medical bills that quizzically were not submitted to the carrier but were paid, in part, by a personal health carrier. The claimant was also pursuing Heart & Lung benefits, and the township’s bargaining agreement allowed the H&L claim to be governed by the ruling in the workers’ compensation claim. Both sides submitted expert evidence on the issues of full recovery and recurrence of disability and factual evidence on the payment of medical bills. The court found in the favor of the employer on all issues. 

Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition involving a knee injury where claimant’s job duties required him to fill a basket with mushrooms, pivot or sidestep and dump the basket into a slicer machine. During his course and scope of employment, it was judicially determined that he sustained injuries in the form of meniscal tears of the knee and the rather vague “injury” of patellar subluxation. On cross examination of claimant’s medical expert, Tony forced him to admit that the meniscal tears had fully recovered. As for the subluxation, Tony exposed the fact that the expert did not diagnose such a condition in the medical treatment notes but, instead, referred to a “chondromalacia” condition that was NOT judicially part of the work injury. The claimant’s medical expert went as far as to indicate on cross examination that the claimant remained totally disabled from his pre-injury job, even though Tony forced him to admit that he had no idea of the claimant’s pre-injury job. 

Robin Romano (Philadelphia, PA) successfully defended the claimant’s petition to review to add a right hip injury. The claimant had already succeeded in having a claim petition granted that acknowledged the left hip and left hip surgery. The Workers’ Compensation Judge carefully considered the testimony of both medical experts. Importantly, the judge rejected the claimant’s surgeon’s testimony, which found a causal relationship between the right hip and the work injury. Robin presented the defense medical expert, who credibly testified that the mechanism of the original injury would not have caused a right hip injury and, also, that an altered gait, suffered by claimant as a result of the accepted left hip surgery, did not lead to a right hip injury or aggravation of what was clearly pre-existing osteoarthritis. 

Michael Sebastian (Scranton, PA) successfully defended a claim petition alleging a specific loss of the right eye from being hit in the eye with the top of a box. The Workers’ Compensation Judge rejected the claimant’s expert’s testimony that the macular scar, which is in the back of the eye, was caused by the work injury and believed the defense expert, who opined there was insufficient force from the top of the box to cause the injury to the back of the eye. The defense expert testified that the claimant’s loss of vision was unrelated to the work event because the claimant did not have any visible damage to the front of the eye at the time of the accident and that there are dystrophies that can cause macular degeneration in one eye. 

*Prior Results Do Not Guarantee a Similar Outcome
 

What’s Hot in Workers’ Comp, Vol. 27, No. 9, September 2023, 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

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.