What’s Hot in Workers’ Comp - News and Results*
NEWS
Heather Byrer Carbone (Jacksonville, FL) has been recognized as 2024 Florida Trend “Legal Elite NOTABLE - Women Leaders in Law.” Heather is honored for her impact in the field of law, mentorship, and leadership in professional organizations and civic/community service initiatives. Read the news release here.
On November 20, Tony Natale (King of Prussia, PA) was one of the key speakers at the annual Delaware Valley Workers’ Compensation Trust’s (DVWCT) Claim Prevention seminar. This live event was attended by Risk Control employees, managers, police chiefs, and command staff as well as department heads and local government leadership in the townships and municipalities that are administered by the DVWCT. Tony spoke on the importance of presenting unified and global defenses between workers’ compensation, unemployment compensation, internal grievance arbitration and employment law where applicable in cases involving workplace injuries. Tony was able to give examples of this unified directive, citing a current case in litigation involving all of these areas of law and the blue print used to provide a global defense.
On November 15, The Legal Intelligencer published “Goodbye ‘Yellow Freight’ Road?,” by Judd Woytek (King of Prussia, PA). You can read Judd’s article here.
RESULTS*
Michael Duffy (King of Prussia, PA) successfully defended against two review petitions where the claimant sought to expand the description of injury from a right shoulder injury to include cervical and lumbar disc herniations, radiculopathy and various psychiatric injuries. The claimant also sought to increase his average weekly wage to a significantly higher expectation rate. The workers’ compensation judge limited the injuries to the right shoulder and rejected the claimant’s expectation rate argument.
Tony Natale (King of Prussia, PA) successfully had a penalty petition, filed against a local university, dismissed on all counts. The claimant sustained an injury to his low back which was accepted as compensable. The claimant returned to work at a modified job, and his benefits were made the subject of a notice of suspension. The claimant worked for several months and never challenged the suspension notice. Thereafter, the claimant left work when his attorney referred him to a new treating doctor. The carrier made some changes to claim data within the WCAIS system (correcting the claimant’s address). As a result of a glitch in the WCAIS system, a new Notice of Compensation Payable was issued based on this data change. The claimant filed a penalty petition, arguing his benefits must be reinstated based on the issuance of the new Bureau document. Tony presented evidence by way of factual testimony and documentary evidence to demonstrate the fallibility of the WCAIS system and exposed the illogical argument made by the claimant’s attorney to the contrary. The court dismissed the penalty in its entirety.
Tony Natale also successfully defended an giant fashion distribution center in the litigation of a Claim Petition. The claimant filed a work injury claim against the fashion center. The matter was assigned to a workers’ compensation judge, and the employer/carrier failed to file a timely answer, relegating all “well pleaded facts” as an admission against interest. As it turned out, the named employer did not have an employer/employee relationship with the claimant, but the late answer acted as an admission of such a relationship based on the pleadings within the claim. Tony was then referred the case to try to mitigate exposure in light of this negative turn of events. Based purely on oral argument detailing the constitutionally offensive result that would be achieved by the interpretation of the case law surrounding late answers, the court dismissed the Claim Petition in its entirety.
Tony Natale also successfully prosecuted a termination petition on behalf of Pennsylvania cabinetry company. The matter originally began as a settlement of a prior 2009 work injury claim. At the settlement hearing, the claimant chose to forego the settlement after learning through Tony’s cross examination of the potential Medicare issues involved in the claim. The employer/insurer moved forward with a new independent medical exam with a renowned orthopedic surgeon. A termination petition was filed, alleging full and complete recovery from the work-related injury, and the court adopted the defense medical opinions as fact. As a result, all benefits were terminated.
Rachel Ramsay-Lowe (Roseland, NJ) successfully completed a trial on the issue of whether the claimant had a cognitive disorder and whether the carrier should authorized medical treatment for a spinal cord stimulator. After taking testimony of both doctors, the courts agreed with Rachel’s argument that the claimant’s doctor’s report lacked objective medical findings to reach the diagnosis of cognitive disorder and dismissed this from the overall claim. The claimant also requested a hearing to address the carrier’s denial of a spinal cord stimulator. Rachel made the argument the claimant’s injuries are merely a strain/strain of the lumbar spine and that the claimant failed to meet the medical treatment guidelines, which require the claimant receive a psych evaluation to determine if they are a good candidate for the stimulator. In addition, Rachel successfully argued the treatment currently rendered does not show a failed back surgery or a special circumstance where a stimulator should be granted. The court agreed with Rachel’s argument and found the carrier does not have to provide a spinal court stimulator.
Michael Sebastian (Scranton, PA) successfully defended a Claim Petition, which alleged the claimant suffered a work-related cervical injury on June 29, 2023. The claimant testified that he felt a snap in his back, but did not feel the pain right away, and continued to work until July 17, 2024. He then went to the emergency room and subsequently had surgery on July 20, 2023. During cross-examination, the claimant agreed he only suffered a cervical injury, not a low back injury. He further noted he had a prior low back injury on October 19, 2022, for which he filled out an accident report and was sent to a doctor and received treatment. However, the claimant first reported the June 29, 2023, injury on September 1, 2023, and at that time could not recall a specific event that occurred on June 29, 2023. However, he did confirm he heard a snap in his back when the injury did occur. The claimant also agreed he worked full duty, without reporting the incident, until July 17, 2024.
Dr. Martinez, the claimant’s expert, testified the claimant was a partial quadriplegic in the upper and lower extremities. Dr. Martinez opined the claimant had cervical stenosis with myelopathy and, given his underlying condition, was probably going to have surgery at some point in the future but it was aggravated by the constant use of his neck.
Dr. Henderson, the defense expert, found no evidence of a work-related injury on June 29, 2023, and that the claimant’s symptoms are consistent with cervical stenosis with myelopathy, which is a degenerative condition. Dr. Henderson opined the claimant’s surgery was for a pre-existing condition and the current treatment is unrelated to any alleged work injury. Dr. Henderson reviewed the MRI from from July 17, 2023, noting there were no acute findings. He also reviewed Dr. Martinez’s testimony, noting the claimant did not have disc herniations and that the surgery was not for disc herniations, but for disc issues in the cervical spine that were degenerative in nature.
The workers’ compensation judge found the claimant to be not credible to the extent he testified he suffered a work-related injury on June 29, 2023, or any disability related to it. He noted the claimant’s demeanor during the hearing was not credible and that his testimony was called into question based upon the employer’s policy that you must immediately report injuries, as he had in the past. The judge also noted the claimant’s description of the work injury, i.e., a snap in his back, conflicted with documentation and the contemporaneous medical records. He also noted that prior similar complaints made on June 26, 2023, and failed to mention a work-related injury in the July 17, 2023, medical notes. The judge noted that subsequent treatment notes also indicate the injury or condition pre-dated the June 29, 2023, work injury date.
The judge accepted the testimony of Dr. Henderson over Dr. Martinez, noting that Dr. Martinez did not review the cervical MRI films or reports and did not have the medical records immediately pre-dating the work injury, including Dr. Tayoun’s records. The judge found that Dr. Henderson’s history, opinions and testimony were corroborated by the medical records. Further, the judge emphasized that Dr. Martinez, during cross examination, offered inconsistent and illogical explanations that the claimant’s lumbar complaints and lower extremity findings were related to the lumbar condition prior to the work injury, but after that date they were related to the cervical condition.
Kacey Wiedt (Harrisburg, PA) secured a decision denying the claimant’s Claim and Penalty Petitions. The claimant, a mechanic, alleged he sustained a right ankle fracture, right ankle abscess, and avulsion fracture of the lateral talus as a result of falling off the back of a pickup truck while removing a truck-cap at work. The claimant asserted he was on the clock and on the employer’s premises when the fall occurred. He claimed he was assisting his employer’s friend in removing his truck-cap from his pickup truck. Through employer witness testimony, Kacey was able to show that the claimant was not in the course and scope of employment when he injured his ankle. Kacey proved the claimant assisted the individual with removing the truck-cap for a purely personal reason and not at the direction of his employer. Kacey also showed that the injury occurred shortly after the claimant’s work shift ended and he had clocked out for the day.
*Prior Results Do Not Guarantee a Similar Outcome
What’s Hot in Workers’ Comp, Vol. 28, No. 12, December 2024 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.