What's Hot in Workers' Comp - News and Results*
NEWS
Frank Wickersham and Mike Duffy (King of Prussia, PA) presented a webinar for Lorman Education Services, “Unique Workers’ Compensation Aspects of Independent Contractors and Traveling Employees.” The course provided an overview of the many components considered by the courts in determining whether a worker was in an employment relationship at the time of an injury to determine compensability.
RESULTS*
Michael Duffy (King of Prussia, PA) won on a termination petition for a low back injury that occurred in 2017. Surgery was recommended for the claimant, but he refused. Instead, the claimant had radiofrequency ablation procedures and injections performed over a period of five years. The judge found that Dr. Rushton, the defense medical expert, was more credible than the claimant’s expert.
Ben Durstein (Wilmington, DE) was successful on appeal before the Delaware Supreme Court, which affirmed the Superior Court’s decision. The Supreme Court affirmed an opinion of the Superior Court and the decision of the Industrial Accident Board that denied the claimant’s petition for a recurrence of total disability benefits due to a worsening of her complex regional pain syndrome. The court relied upon the Superior Court’s reasoning and holding that there was substantial evidence to support the Board’s ultimate determination and preference for the medical expert and vocational expert opinions of the employer over those of the claimant’s experts.
Tony Natale (Philadelphia, PA) successfully defended a claim and penalty petition on behalf of a nationwide vision-wear supply company. The judge dismissed the claimant’s petitions on three bases. First, it was established on cross examination that the claimant’s medical expert relied on the wrong mechanism of injury in arriving at his opinions on causation. Second, surveillance showed that the claimant was not disabled as alleged and was able to perform activities contrary to his testimony, and third, the claimant was working for another company despite his allegations to the court and his expert that he could not work.
Tony also successfully prosecuted a termination petition on behalf of a northeastern Pennsylvania trucking company. The claimant was involved in a horrific accident involving an 18-wheeler and a negligent auto driver. The carrier accepted a cervical spine strain injury and paid benefits. Ultimately, an IME was undertaken, and the claimant was pronounced fully recovered. When the termination petition was filed, the claimant alleged additional injuries in the form of cervical radiculopathy and lumbar radiculopathy, the latter allegedly related to a cervical injection causing lumbar radicular complaints. Tony convinced the trial judge that the original injury was limited to a cervical muscle/ligament injury; that the claimant fully recovered from that injury; that the claimant had no true cervical radiculopathy; and that an injection in the neck cannot cause lumbar radiculopathy. Benefits were completely terminated.
Tony successfully defended a Berks County farm and mushroom supplier in litigation surrounding a claim with an alleged shoulder tear and surgery against a backdrop of two additional tears and surgery dependent on the outcome of the case. Based on the direct and cross exam of the expert witnesses, Tony convinced the trial judge that the claimant’s shoulder tear was not work-related. MRI films generated before and after the tear could not be linked to the claimant’s one-armed work that he was performing months before the injury.
Tony successfully prosecuted a modification petition on behalf of a Berks County farm and mushroom supplier. The claimant sustained injuries to his hand and wrist in the form of a strain, CTS and TFCC tear. Tony was able to convince the trial judge that despite these injuries, the claimant was capable of working within modified restrictions. Consequently, the claimant’s benefits were modified in accordance with the job offer.
Tony successfully prosecuted a termination petition and defended a review petition on behalf of a Berks County mushroom farm and supply company. The claimant sustained a shoulder tear at work. After a full recovery petition was filed, the claimant alleged that an unspecified hand injury, along with the shoulder injury, continued to be disabling. Tony convinced the trial judge that the work injury was limited to a shoulder tear and the tear had fully and completely recovered. All benefits were terminated.
Judd Woytek (King of Prussia, PA) successfully defended a claim petition where the claimant was seeking benefits for the time period he had to quarantine after a possible COVID-19 exposure. The claimant admitted that he never tested positive for COVID. The judge agreed with Judd’s argument that the claimant had, therefore, not suffered an injury or contracted an occupational disease under the Pennsylvania Workers’ Compensation Act. The claim petition was denied and dismissed.
Judd also successfully prosecuted a petition to compel a claimant to undergo an MRI of his knee, which the claimant opposed due to allegedly having metal in his eye. The claimant admitted, however, that he had previously had MRIs performed. The judge directed the claimant to undergo x-rays of his eyes and, if clear, to undergo the MRI of the knee.
In a second successfully prosecuted a petition to compel an IME handled by Judd, the claimant had refused to cooperate with the IME doctor’s office and complete informational questionnaires. He also brought a priest along to the IME. The judge ordered the claimant to attend the rescheduled IME and complete the requested questionnaires and forms.
Judd was partially successful in defense of a claim petition and in prosecution of a termination petition. The judge agreed with Judd’s argument that the claimant had failed to present any evidence of disability related to his October 2020 injury until the date of his shoulder surgery in February 2021. The judge also granted a partial termination of benefits with regard to the claimant’s cervical and lumbar injuries.
Finally, Judd was successful in defending the claimant’s appeal from a judge’s decision that denied the claimant’s claim petition and Utilization Review Petition and granted our termination petition relating to a Medical-Only Notice of Compensation Payable. The Appeal Board affirmed the judge’s decision in its entirety by crediting Judd’s arguments raised at oral argument and in his brief.
*Prior Results Do Not Guarantee A Similar Outcome
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