On the Pulse…Important and Interesting Litigation Achievements* . . . We Are Proud of Our Attorneys for Their Recent Victories

Casualty Department

After a seven-day trial, Bradley Blystone and Andrea Diederich (Orlando, FL) obtained a defense verdict in favor of a resort in a case in which the plaintiff alleged that he slipped and fell on the handle of an unattended dustpan in the bathroom at the resort’s pavilion. He was subsequently diagnosed with avascular necrosis of the right hip, permanent back pain and memory problems from post-concussion syndrome. Surgery was performed on his right hip, but it failed to alleviate his pain. The plaintiff sought compensation for lost wages and loss of earning capacity for the remainder of his life, as well as past and future medical expenses, including two future hip replacement surgeries. During closing, the plaintiff and his wife requested an award in excess of $1.2 million. We defended on the lack of credibility of the plaintiff and his experts. After nearly five hours of deliberation, the jury returned a defense verdict.

Tony Michetti (Doylestown, PA) obtained a defense verdict at arbitration on behalf of a water system installer. The plaintiffs retained Tony’s client to install a water treatment system in their home. Part of the process involved the installation of a PVC bushing into a brass fitting. Two days after the installation, the bushing failed, and the plaintiffs’ home sustained major water damage. Suit was brought against the installer and the manufacturer of the bushing. Expert engineers were retained by all parties, and a joint inspection—which included destructive examination of the bushing—was done at a mutually agreed laboratory. Both the plaintiffs’ expert and the manufacturer’s expert concluded that the bushing failed due to the installer’s over tightening the bushing, which caused a fracture along the bushing seam. Tony’s expert concluded that the fracture was caused as a result of defects during the manufacturing process. The arbitration award was against the manufacturer only.

Andrew Wargo and Amelia Leonard (Cleveland, OH) obtained summary judgment on behalf of an employer and its employees in a claim for injuries suffered by a temporary worker when a flash fire erupted from an aluminum shredder at the employer’s facility. The plaintiff, who suffered second degree burns on 10% to 19% of his body, sought compensation for his injuries, past, present and future lost wages, Post Traumatic Stress Disorder, and his wife’s consortium claim in an amount of $950,000. Andrew and Amelia argued that, because the plaintiff was a “borrowed employee” under the state’s Workers’ Compensation Act, he was barred from compensation for his injuries in tort absent proof that the employer’s and co-employees’ acts were intentional, which the defendants explicitly denied. Although the plaintiffs argued that the Workers’ Compensation Act did not apply, as well as submitting an expert report purporting to establish the defendants’ actions were intentional, the court disagreed.

In advance of any depositions being taken, Steve Kaplan (New York, NY) obtained summary judgment on behalf of a scaffold erection contractor in a personal injury action with a low seven-figure exposure. The case was filed in New York County by a construction worker who fell from our client’s scaffolding. Based on affidavits, photographs, email messages and other documentation, Steve established that the scaffolding was properly erected, that it had been altered by unidentified third parties and that, although the scaffold contractor was aware of the hazard posed by the alterations, it had no duty to repair the scaffolding absent a change order from the general contractor, which was not forthcoming. To obtain summary judgment, Steve established that his motion was not premature because depositions would not lead to evidence sufficient to overcome our client’s prima facie entitlement to that relief.

Jim Hanratty (Jacksonville, FL) tried a case in which the plaintiff, a disabled veteran, was leaving the client’s office when he slipped on a wooden handicap access ramp. He alleged that, due to a lack of maintenance, the ramp had accumulated mold and algae, making it unreasonably slippery when wet. The plaintiff fractured his femur, which required the placement of an intramedullary rod and multiple other internal fixations. Although already partially disabled, the plaintiff worked as a truck driver and claimed an inability to drive trucks due to his damaged leg. He called a nationally recognized expert in slip and fall risks to testify on his behalf, as well as an environmental engineer. He boarded in excess of $400,000 in economic damages. The jury returned a defense verdict, finding no negligence.

In a case before the Court of Common Pleas of Northampton County, Pennsylvania, Tony Michetti (Doylestown, PA) obtained a defense verdict on behalf of his client, a snow remover. The plaintiff slipped on ice in the parking lot of the senior independent living facility where she lived. She sustained a tibial plateau fracture and claimed significant residuals compromising her daily activities. The plaintiff presented testimony from a non-treating medical expert that she required a total knee replacement at a future cost of $85,000, in addition to past medical expenses of $20,000. Tony successfully presented evidence that the parking lot was plowed and salted four times throughout the day of the snowstorm and that the defendant had last plowed and salted about 30 minutes before the accident.

After a week-long trial, Jim Hanratty (Jacksonville, FL), won a defense verdict in a case involving product liability and warranty claims arising out of the manufacture of a mobile home. The plaintiffs claimed that the home was defectively designed and manufactured by Jim’s client and that the defects created violations of Florida warranty statutes and the Magnuson-Moss Warranty Act. The plaintiffs claimed respiratory illness, property damage and the need to move out of the property at the recommendation of an indoor air quality expert, which led to the eventual foreclosure of the home. Two other defendants settled within weeks of the trial, leaving our client as the sole target. One of Jim’s tactics was to point to the empty chairs at trial. After a week-long trial, with six expert witnesses, the jury returned a defense verdict.

Health Care Department

Fred Roller, Mary Kate McGrath and Michelle Moses (Philadelphia, PA) obtained a unanimous defense verdict in Bucks County, Pennsylvania, on behalf of an emergency department physician who allegedly failed to diagnose a severe fracture of the tibial plateau shortly after the plaintiff claimed to have been pushed into a swimming pool. The plaintiff ultimately went on to have a knee replacement. Our defense was based on a lack of knee complaints to anyone in the emergency department, including the registration clerk, triage nurse, primary care nurse or our client. It did not help her cause that, two days after the incident, the plaintiff and her husband went to Puerto Rico for 10 days. The plaintiff claimed that she believed all she had was a muscle strain, as diagnosed by our client. The fracture diagnosis was made on her return home. The wrinkle in the case was that there was no evidence of any preceding accident to cause the fracture, and our orthopedic expert opined that the fracture had to have occurred two to three weeks before the pool incident. We argued that we did not know when the fracture occurred, but we knew when it did not. The jury agreed with us after short deliberations.

Following a six-week jury trial where the demand was $12 million at the onset, Rosalind Herschthal (Roseland, NJ) obtained a defense verdict. The plaintiff, a 44-year old woman, claimed our client, an internal medicine physician, was negligent in failing to order a spinal tap after a six-day period of the plaintiff having a fever and severe headaches, in addition to an upper respiratory virus. (The same allegations were made as to the emergency medicine physician who saw her on day four and an internist who was called on the phone the evening of day seven.) The plaintiff alleged the severe headaches and fever were signs of a brain infection and that a spinal tap would have revealed the infection before brain damage occurred. She was diagnosed with Herpes Simplex Encephalopathy (HSE) eight days after the onset of the original symptoms, and was left with temporal lobe scarring and residual cognitive deficits. She claimed she was unable to return to work as a global analyst on Wall Street. Our internal medicine expert asserted that our client complied with the standard of care, and he noted the doctor’s exam included a fundoscopic exam, showing that the optic nerve was normal, which meant there was not brain swelling and no brain infection at that time. All of the defense experts asserted that HSE is a very rare disease and cannot be diagnosed until there are some neurological signs or symptoms. The damage experts for the plaintiff—neurologists and neuropsychologists—contended she was unemployable and would need supervision in the near future for her cognitive deficits. The defense experts asserted her brain injury was minimal and static and that she would not have any further neurologic decline. The jury returned a no cause as to all defendants after nearly five hours of deliberation.

Anthony Williott (Pittsburgh, PA) obtained a defense verdict on behalf of an internal medicine physician in McKean County, Pennsylvania following an eight-day jury trial. The case involved a 69-year-old female who presented to a local hospital complaining of significant chest pain and pressure. After the initial EKG showed ST wave elevation, the ER physician diagnosed the patient with an ST-elevation Myocardial Infarction and called our client, the patient’s primary care physician. Our client arrived about 15 minutes later and ordered a second EKG. He believed the second EKG was worse than the first and, thus, felt the patient qualified for thrombolytic therapy (i.e., clot-buster) because the combination of clinical symptoms and EKG strongly suggested a complete occlusion of the left anterior coronary artery. However, a second ER physician, who had just come on duty 10 minutes earlier, disagreed with our client’s interpretation of the second EKG and of the patient’s clinical symptoms, feeling the second EKG was improved over the first and there was no longer a complete occlusion of the coronary artery. Thus, the patient did not meet the criteria for thrombolytic therapy in his opinion. Our client and the ER physician got into a heated argument over the propriety of thrombolytic therapy, which was witnessed by the patient’s brother. Following administration of the clot-buster by our client, the patient developed a massive intra-cranial hemorrhage, a known risk of the therapy. The patient required emergency brain surgery, including partial lobectomy, and was left with a residual brain injury. The plaintiff claimed the thrombolytic therapy was contraindicated and in violation of hospital policy and published guidelines and that the defendant physician should, instead, have emergently transferred the patient to Erie by helicopter for balloon catheterization. The plaintiff also claimed the client failed to properly monitor the patient post-therapy and should have ordered a CT scan as soon as the patient began to complain of a significant headache, rather than two and one-half hours later when the patient crashed neurologically. The plaintiff called 22 witnesses, including the ER physician who had argued with our client over the propriety of thrombolysis, and the staff cardiologist who wrote the hospital’s protocol for administration of thrombolytic therapy, both of whom testified that our client should not have administered thrombolytic therapy.

Professional Liability Department

In a complex legal malpractice action that involved a series of cases spanning 25 years and invoked the jurisdiction of several state and federal courts, Jack Slimm, Walter Kawalec and Jeremy Zacharias (Cherry Hill, NJ) obtained a decision from the U.S. District Court of Appeals for the Third Circuit denying the appellant’s motion for re-hearing. The case arose out of a Family Court matter in Camden County involving alimony and child support. The plaintiff brought common-law fraud and Section 1983 claims against his ex-wife and her attorney (our client). The District Court granted our motion for summary judgment, and the Third Circuit affirmed. Then, after the plaintiff/appellant moved for re-hearing, the Third Circuit denied that petition under the Rooker-Feldman Doctrine and the statute of limitations.

Wendy Smith (Roseland, NJ) prevailed before the New Jersey Superior Court Appellate Division, which affirmed a trial court decision dismissing a unit owner’s consumer fraud claim against the developer based upon the unit owner’s failure to establish an ascertainable loss. The unit owner, who had lost his unit due to foreclosure, argued he had sustained significant out-of-pocket loss by virtue of the down payment on his apartment, therefore, establishing ascertainable loss. Wendy successfully argued that the plaintiff’s failure to prove the actual value of the property by competent expert testimony was fatal to his claim. The Appellate Division agreed based on the plaintiff’s failure to produce an appraisal or an expert report as to the value of the condominium or any depreciation thereof.

Sharon O’Donnell (Harrisburg, PA) successfully defended a whistleblower investigation conducted by the U.S. Department of Labor, Occupational Safety and Health Administration. It was alleged that our client, an environmental cleaning contractor, violated the Surface Transportation Assistance Act when one of its drivers logged more than 10 hours on the road and then returned to work several hours later for another shift that required him to acquire, transport and dispose of a brine solution. The employee sustained severe burns to his skin when the brine leaked out of the hose used to transfer the hot brine from its holding tank to the transport tank. Shortly thereafter, he was fired for a culmination of subsequent policy infractions, which he claimed was retaliation for reporting an OSHA violation regarding the brine transfer. Sharon proved that the employee’s own negligence caused his burn injuries and that the subsequent infractions were further evidence of irresponsibility and disregard for corporate policies that track this heavily regulated industry.

Phillip Harris (Tampa, FL) obtained dismissal from the Equal Employment Opportunity Commission. The complainant was a student mentor for a Tampa area YMCA. The complainant alleged that the school discriminated against her due to her Hispanic national origin. Specifically, the complainant argued that her manager refused to allow her access to her cell phone during working hours while allowing Caucasian employees to text and make calls whenever they wanted. The respondent argued that many other employees had been denied access to their phones and proffered a legitimate business interest—the YMCA wished to ensure that all employees were giving 100% attention to its members while on the clock. The employees were given access to business phones for emergency reasons. After both parties extensively briefed the issues, the EEOC issued a determination of No Cause to believe that discrimination had occurred.

After a two-day bench trial under Pennsylvania’s bad faith statute, the judge entered judgment in favor of our client. Brooks Foland and Allison Krupp (Harrisburg, PA) were successful in this insurance bad faith case in Philadelphia County, Pennsylvania in which the judge found that our client did not act in bad faith in the handling of the plaintiff’s UM claim. The court found that plaintiff’s counsel created confusion in requesting our client consent to settle with the tortfeasor, although plaintiff’s counsel had presented the claim as a UM claim and not as a UIM claim. The claim was further complicated by issues of choice of law, joint and several liability, credits and set-offs. The judge ruled that our client’s handling of the claim did not even amount to negligence or bad judgment.

Brigid Alford (Harrisburg, PA) and Terry Sachs (Philadelphia, PA) we successful before the Superior Court of Pennsylvania in an insurance coverage case that involved claims by an insured business owner for coverage under a commercial general liability policy. The insured was transporting chairs and tables for his business on his truck; as he rounded a curve, some chairs fell onto the path of an oncoming motorcyclist, who reportedly sustained serious injury. The insured sought coverage not only from his vehicle policy, but also from his CGL policy, citing the claimants’ “non-vehicle” allegations, such as the insured improperly loaded the vehicle and failed to secure the load. Our client denied coverage on the basis that the claim fell within the motor vehicle exclusion of the CGL policy and filed declaratory judgment actions against the insured and the injured claimants. The Luzerne County Court of Common Pleas granted summary judgment in favor of our client, and the Superior Court affirmed. The Superior Court held that the allegations in the complaint against the insured fell within the exclusion because they were claims “arising out of” the use of a vehicle, which included loading and unloading the vehicle. The Superior Court later denied the insured’s and the claimants’ application for rehearing en banc.

Trish Monahan (Pittsburgh, PA) and Terry Sachs (Philadelphia, PA) were successful before the Third Circuit Court of Appeals in an insurance coverage and bad faith case. The case involved claims by an insured for coverage under a Business Owners and Technology Professional Liability policy issued by our client. The insured was sued by two other participants in a prior business venture who sought a declaratory judgment as to the ownership of certain intellectual property. The insured counterclaimed, and when the other parties answered the counterclaim, they included claims for attorneys fees, expenses and costs for the insured’s wrongful conduct under the fee-shifting provisions of the federal and state statutes relating to copyright infringement and misappropriation of trade secrets. Our client denied coverage because the claims against the insured did not constitute a covered “occurrence” under the policy, the insured had not been sued for malicious prosecution and the policy excluded claims for infringement of intellectual property rights. The insured filed suit against our client, seeking coverage on the basis that the counterclaim answers amounted to “malicious prosecution” claims that fell within the policy’s coverage, and also claiming bad faith. The U.S. District Court for the Western District of Pennsylvania granted summary judgment in favor of our client as to both coverage and bad faith, and the insured appealed. At a Third Circuit mediation, the insured continued to demand $1 million. This past March, the Third Circuit affirmed in a unanimous unpublished decision.

Ray Freudiger and David Oberly (Cincinnati, OH) obtained summary judgment on behalf of an insurance agent and agency who sold the plaintiff property and liability insurance on its business. A fire loss occurred, and the insured discovered that it did not have business interruption coverage. It sued the agent and the agency for negligence, breach of contract and estoppel for failing to procure business interruption coverage. Ray and David successfully argued that an insurance agent only has a duty to seek coverage that has been requested by the insured. Even though the agent incorrectly reassured the insured the day after the fire that it had business interruption coverage, there was no evidence of any reliance by the insured, and the insured could have readily determined the lack of business interruption insurance by reading the policy.

In this legal malpractice case, Dennis Roman and Charlene Seibert (Pittsburgh, PA) obtained summary judgment. The plaintiff was seeking in excess of $2 million stemming from a trial court judge’s determination in underlying litigation that our lawyer-clients had waived, on behalf of their former clients, challenges to the sufficiency of the evidence supporting the verdict. The underlying litigation arose from the events of 9/11. On the day of the terrorist attacks, a property manager of an apartment complex entered the residence of a Muslim tenant under the pretext of changing furnace filters, snooped through his apartment and then reported to police the residence as containing items suspicious of terroristic activities. The tenant, a physician, was then arrested and interrogated by the FBI, terminated from his job and subjected to national publicity. The FBI uncovered no evidence of terrorist activity, and no charges were ultimately pursued. The tenant sued in federal court for violations of his civil rights and invasion of privacy. Our lawyer-clients defended the property manager and apartment complex at trial, where the jury found in favor of the tenant on the invasion of privacy claims, entering a verdict for the plaintiff for $2.45 million. On a post-trial Rule 50 motion, the trial judge found that the defendants failed to file a motion during trial specific to the invasion of privacy claims and, therefore, waived such issues for post-trial consideration. In the subsequent legal malpractice lawsuit, the court granted summary judgment on the basis that the plaintiffs, the former clients, were unable to establish that our lawyer-clients were the proximate cause of their claimed loss. The court agreed with our analysis that the issue of causation—whether the verdict in the underlying litigation would have been overturned post-trial or on appeal “but for” the attorney’s waiver—was a question of law for the court to decide alone, not a jury, and that consideration of expert testimony offered by either side was inappropriate. The court also agreed with us that, upon reviewing the trial court record and applying the standard of review applicable in the underlying action, the evidence was sufficient to have supported the jury’s verdict on both invasion of privacy theories of recovery. Because the plaintiffs could not establish that the verdict would have been overturned had a “proper” Rule 50 motion been made during trial, the plaintiffs could not establish that our lawyer-clients were the cause of actual loss to plaintiffs.

Arthur “Terry” Lefco and Gregory Fox (Philadelphia, PA) obtained a defense verdict in a legal malpractice bench trial in Philadelphia County. The plaintiff, the owner of what was, at the time it was built in the late 1700s, the tallest privately owned commercial building in Philadelphia, claimed that our client failed to timely commence an underlying property damage lawsuit against the neighboring pizza shop. According to the plaintiff, almost $400,000 in damage was allegedly caused to his building by vibrations coming from the pizza shop’s dough mixer and water from the pizza shop’s rainwater conductor. Although Terry and Greg were ready to prove that such a claim never would have succeeded for a number of reasons, including the fact that the plaintiff was not even the owner of the building at the time it was allegedly damaged, the judge’s sua sponte decision to bifurcate the case, and to first hear the issue of whether our client actually missed the statute of limitations, ultimately mooted those issues. After hearing all evidence on the SOL question, the judge agreed with Terry’s and Greg’s arguments that, notwithstanding the fact that the statute of limitations may have expired prior to our client commencing the underlying case, our client was entitled to rely on the plaintiff’s statements to him as to the date of loss and he timely filed the matter within two years of that date. The judge, therefore, entered a defense verdict.

Paul Krepps and April Cressler (Pittsburgh, PA) obtained summary judgment in defending an extensive pro se prisoner case. The plaintiff named eight employees and officials of the jail as defendants. Although the complaint was vague, the magistrate judge determined that the plaintiff made claims of several counts of deliberate indifference to serious medical needs and several claims of excessive force against multiple defendants. The defendants moved for dismissal via summary judgment at the outset, but the entire motion was denied on the basis that the plaintiff should be given the opportunity to engage in discovery. The magistrate judge noted that, if the plaintiff’s recitation of facts were “supported by adequate evidence,” the plaintiff would be entitled to summary judgment. The plaintiff served written discovery and filed discovery motions once he received responses. His motions were denied. At the close of discovery, the defendants moved for summary judgment as to all claims. The magistrate judge granted summary judgment as to the medical claims but recommended the denial of all use of force claims on the basis that the “verified” complaint created issues of fact, precluding summary judgment. Objections to the magistrate’s Report and Recommendation were filed with the district court. The district court judge entered an order directing the magistrate judge to reconsider her denial of summary judgment. On further review, the magistrate judge recommended dismissal of the entire complaint. Once again, the plaintiff filed objections, and we responded to those objections. The district court granted summary judgment to the entire complaint and adopted the Report and Recommendations of the magistrate judge, as amended.

Christopher Conrad (Harrisburg, PA) successfully defended an investigation by the U.S. Department of Education, Office for Civil Rights (OCR) against our client, a local school district, which was alleged to have violated the rights of a qualified student with a disability under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. After being expelled from high school for drug-related offenses, the student was placed in an approved private school with which the district contracts to provide special education and related services for its students. Though the student was attending a private school, the district ultimately remained responsible for her education and for ensuring that she was afforded all rights under Section 504 and the ADA. While at the private school, the student was involved in an incident where she caused significant damage to school property and posed a physical threat to herself and staff. The student’s behavior prompted school staff to utilize safe crisis management techniques, including physical restraint, in order to help the student to de-escalate. The student suffered no physical injury, but she and her parent nonetheless claimed the use of restraint under the circumstances was unwarranted and violated her civil rights. Working in collaboration with the district, the private school and its counsel, Chris was able to demonstrate that the use of restraint under the circumstances was justified and necessary in order to prevent harm and further damage and that the school staff involved, all of whom were well trained in safe crisis management, utilized restraint techniques that were consistent with their training and with the district’s and the private school’s respective policies.

At a FINRA arbitration in New York, Samuel Cohen (Philadelphia, PA) obtained a dismissal on a directed verdict. Sam represented a broker-dealer in a dispute with its former customer regarding the unauthorized use of her account information. The claimant was a customer of the broker-dealer’s Jericho, New York branch, where her ex-husband also worked as a broker. In the claimant’s request for attorney’s fees in a separate divorce court proceeding, she claimed to be destitute and alleged that her ex-husband was in the better financial position. Knowing the claimant was misrepresenting her financial circumstances in the divorce proceeding, the ex-husband gained unauthorized access to the claimant’s account information. He attached a printout of the claimant’s account portfolio to his cross-motion for attorney’s fees, while accusing the claimant of misrepresenting her financial circumstances. Despite being advised of the ex-husband’s unauthorized access to the claimant’s account information, the judge in the divorce proceedings found that the claimant had not been forthcoming in presenting her financial circumstances to the court and denied her motion for attorney’s fees. The claimant then sued our broker-dealer client in FINRA arbitration for failure to supervise, negligence, breach of fiduciary duty, invasion of privacy and theft of private financial client information as a result of her ex-husband’s access to her account and submission in the divorce proceeding. In addition to legal arguments based upon failure to state a claim, Sam used the divorce court opinion in the FINRA arbitration to prove the claimant sustained no damages.

Workers’ Compensation

Judd Woytek (Allentown, PA) obtained a favorable decision in a Federal Black Lung claim for his clients. Judd successfully argued to the Administrative Law Judge that the miner had failed to prove he was totally disabled due to coal workers’ pneumoconiosis. The judge found that the miner had worked in the coal mines for 13 years and that he was suffering from clinical pneumoconiosis, but that he had failed to prove he suffered from a totally disabling respiratory or pulmonary condition or that he was totally disabled due to pneumoconiosis. The judge, therefore, denied the miner’s claim for benefits.

In a second Federal Black Lung claim, Judd Woytek (Allentown, PA) successfully argued that a miner’s widow was not entitled to survivor’s benefits under the Black Lung Benefits Act. The miner had not successfully obtained benefits during his lifetime, but the widow alleged that his death at 102 years of age was caused by coal workers’ pneumoconiosis. Judd proved through medical evidence that the miner did not definitively have coal workers’ pneumoconiosis and that he was not totally disabled due to pneumoconiosis at the time of his death. Therefore, the judge found that the widow could not meet her burden of proof.

Tony Natale (Philadelphia, PA) successfully litigated an appeal before the Workers’ Compensation Appeal Board on behalf of a local Fortune 500 financial institution. The claimant slipped and fell while performing her job duties on the employer’s property and alleged she was plagued by repetitive traumatic stress. Tony litigated the original claim petition and was successful in having it dismissed before the Workers’ Compensation Judge. At the appeal level, the claimant argued that the burden of proof applied by the judge to the repetitive stress claim was improper. In a very complex oral argument and brief, Tony convinced the Appeal Board that the standard of proof applied by the judge did not constitute an error of law. The Appeal Board dismissed the claimant’s appeal in its entirety.

Judd Woytek (Allentown, PA) successfully defeated a claim petition in which the claimant had alleged she slipped and fell on the snow-covered parking lot of the employer’s premises, sustaining a concussion, post-concussion syndrome and cervical pain. The Workers’ Compensation Judge accepted Judd’s argument that the claimant failed to sustain her burden of proving she actually slipped and fell on the employer’s premises. The claimant lived only a few blocks from the employer’s place of business, and Judd submitted medical records contemporaneous with the claimant’s fall indicating that the claimant had absolutely no recollection of the fall itself or where it occurred. During her testimony, however, she was adamant that she had fallen between rows of cars on the employer’s parking lot. Despite the fact that both the claimant’s treating physician and our IME doctor found that she had indeed sustained a concussion, Judd was able to convince the judge to deny the claim petition based upon the “coming and going” rule. The judge concluded that the claimant was unable to prove that she slipped and fell on the parking lot, or her employer’s premises, and that she was “commuting” to work when the she slipped and fell. The judge also denied the claimant’s penalty petition and found that the issuance of the notice of denial seven days late did not warrant a penalty.

Ashley Talley (Philadelphia, PA) obtained a defense verdict in a workers’ compensation matter where penalties were requested for denying coverage to a claimant who was laid off from a modified job with the defendant. Arguing that the defendant committed a statutory violation by improperly stopping wage loss benefits by the use of a second Notice of Temporary Compensation Payable, counsel requested an assessment of penalties and requested to depose the adjuster, both of which were denied by the Workers’ Compensation Judge. Adopting the defendant’s argument, the judge held that the employer was not estopped from denying subsequent indemnity liability (although medical benefits remained payable) and that coverage was properly denied in a manner that did not constitute a statutory violation. As such, both petitions were dismissed in their entirety.

John Zeigler (Harrisburg, PA) successfully defended a motion against a trucking company by claimant’s counsel that would have precluded the defendant from being able to present evidence disputing the existence of an employment relationship where a truck driver suffered a significant hand crush injury. The case was assigned to defense counsel after the requisite time allowed for timely submission of an answer to a claim petition. John argued the claim petition was not well pled and, thus, the claimant still had the burden of proving all necessary elements of an employment relationship, which is a legal determination. The Workers’ Compensation Judge credited the defendant’s argument that, despite a late answer in which all well-pled facts would be deemed admitted, precedent supported that the claimant must present evidence supporting the existence of an employer/employee relationship at the time of injury.

Tony Natale (Philadelphia, PA) successfully defended a Reading area mushroom distribution plant in the litigation of a claim petition. The claimant alleged that long hours of non-stop sitting at work caused lumbar spine maladies, including disc herniations, aggravation of pre-existing degenerative disc disease and lower extremity radiculopathy. The claimant alleged he became totally disabled from employment as a result of these alleged workplace injuries. Tony cross examined the claimant’s medical expert and established clear and convincing proof that the expert’s chart notes were devoid of any opinions linking the claimant’s work duties to the diagnoses. Under cross examination, the claimant’s expert admitted that her chart notes voiced causation opinions that were in opposition to her testimony. The Workers’ Compensation Judge focused on these inconsistencies when denying and dismissing the claim petition.

Tony Natale (Philadelphia, PA) also successfully defended an international money transfer network in the litigation of a claim petition in which the claimant alleged a traumatic injury in the form of aggravation of right hip and right knee arthritis as a result of confined travel in an automobile during the course and scope of employment. The claimant alleged total disability from work and sought hip and knee replacement surgery. On cross examination of the claimant, Tony established that the timing of his alleged disability due to this injury was contemporaneous with his discharge from employment for cause. Tony further presented credible opinions from an orthopedic surgeon that the alleged hip and knee injuries were actually normal arthritic changes that were not incident to employment. The Workers’ Compensation Judge ruled that no work-related injury had taken place, and the claim petition was dismissed.

Tony Natale (Philadelphia, PA) successfully defended a local mobile cardiac outpatient telemetry service regarding claim and penalty petitions arising out of a fall at work. The claimant alleged that she fell off her chair at work, injuring her head, arms, low back and legs. She underwent surgery on her upper extremity and alleged lumbar disc herniations, resulting in scorching pain into her lower extremities, with additional surgery imminent. The claimant alleged that her injuries and surgery were compensable and that the carrier violated the Workers’ Compensation Act by failing to accept as compensable the conditions alleged. The parties presented competing orthopedic surgeon testimony. Through the discovery process, Tony uncovered the fact that the claimant was involved in a motor vehicle accident in close proximity to the time of her alleged work injury and that she had not reported that accident to her treating surgeon. Tony was able to use this evidence to argue against the credibility of the claimant and her treating expert. The Workers’ Compensation Judge reviewed all evidence in the case and dismissed both the claim and penalty petitions.

Tony Natale (Philadelphia, PA) also successfully prosecuted a termination petition for a local university. The claimant injured his low back after he slipped while exiting a transport vehicle during the course and scope of his employment. Medical evidence revealed the claimant had a congenital pre-existing anomaly in his spine that contributed to his complaints of pain. Tony presented the deposition of an orthopedic surgeon, a treating physician and a surveillance investigator to prove the claimant’s full and complete recovery from the work injury.

*Prior Results Do Not Guarantee A Similar Outcome

_{Defense Digest, Vol. 22, No. 2, June 2016}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}