What's Hot in Workers' Comp - News and Results*
NEWS
Two attorneys from our Workers’ Compensation Department were selected 2022 “Top Lawyers” by Delaware Today Magazine. Congratulations to Keri Morris-Johnston and Benjamin Durstein of our Wilmington, Delaware, office.
Alex Possino’s (Pittsburgh) article “Navigating Uncharted Territory: How to Avoid Danger Zones in the Evolving Landscape of Medicaid Liens” was published in the September 2022 edition of CLM Magazine. You can read the article here.
Andrea Rock’s (Philadelphia) article “Can you add Andrea’s article: When Filing a Petition Can Result in an Award of Attorney Fees” was published in The Legal Intelligencer on October 6, 2022. You can read the article here.
RESULTS*
Ben Durstein (Wilmington) successfully handled a case on behalf of the State of Delaware where the Industrial Accident Board denied the claimant’s petition to determine compensation due in its entirety. The Board reasoned that there was no objective evidence of an injury and the claimant’s subjective complaints were not credible.
In another matter handled by Ben, the Industrial Accident Board granted the employer’s motion for reargument in part. Specifically, the Board agreed with Ben that the employer’s offer, made 30 days prior to the hearing, was equal to or greater than the Board’s award in all respects, except it did not include an offer for a medical witness fee. The attorney fee was reduced from $5,000 in the initial decision to 30% of the claimant’s medical expert’s fee (which is capped at $2,000).
Tony Natale (Philadelphia) successfully prosecuted a termination petition and defended a review petition (challenging the nature of injury) on behalf of local professional veterinary clinic. The claimant was injured when a large dog pulled her down during a walk. Injuries to the claimant’s shoulder were accepted as compensable. The claimant treated for her shoulder for a period of time and then stopped. Nearly a year later, she re-initiated treatment for her shoulder and added the neck to the equation with potential surgery. The matter entered litigation on the issues of full recovery and the efficacy of additional injuries. The court accepted defense evidence supporting a full recovery and rejected any new injuries.
Tony also successfully proved that the claimant of a Berks County mushroom facility refused available employment within her physical restrictions. The claimant sustained injuries to various body parts, including her neck. A job offer was made to the claimant for a visual inspection position that required no physical duties. The claimant refused the job, alleging that visually inspecting product would aggravate her neck symptoms. Tony was able to submit into evidence a video depicting the job in question and presented medical evidence documenting the claimant’s ability to return to the position. The court accepted all defense evidence as the most credible and found the claimant refused available employment in bad faith.
Rachel Ramsay-Lowe (Roseland) successfully excluded the cervical spine from an established claim. The claimant injured the lumbar spine and at home alleged he passed out from the lumbar spine pain, causing a neck injury. Rachel presented hospital records revealing no injury to the cervical spine and that the claimant did not seek any medical treatment to the cervical spine until seven months after this alleged incident.
Kristopher Starr (Wilmington) handled a case where the claimant had been awarded medical expenses for an acknowledged spinal impairment. The claimant had undergone nine surgeries and presented testimony of two treating physicians, an orthopedic surgeon and a pain management physician. Kris successfully convinced the Board to award the employer a termination of temporary total disability benefits. The claimant was also denied a finding of displaced worker status. The claimant’s change from permanent impairment to RUE reduced from 60% to 33% the rating based on the employer’s expert. However, the Workers’ Compensation Fund filed a motion for reargument. Kris has filed the employers’ response, and we await the Fund’s decision.
Kris also successfully handled a case on behalf of a logistics company where the claimant filed a petition for disfigurement. The claimant alleged anterior neck surgical scarring, with a profoundly altered gait, and had demanded 90 weeks of disability. The Board awarded only 16 weeks.
Judd Woytek (King of Prussia) was successful in defending a review petition in which the claimant was seeking to expand the description of injury to include major depressive disorder and general anxiety disorder. The claimant had contracted COVID in the workplace and believed she gave it to her husband who subsequently passed away. She also sought penalties for failure to pay for psychiatric treatment. The Workers’ Compensation Judge denied and dismissed the claimant’s petitions.
In another review petition case, Judd was successful in defending an appeal of a decision in which the judge had denied the claimant’s review petition to expand the injury, in part, and did not award litigation costs to the claimant’s attorney relating to their unsuccessful petition. Based upon Judd’s arguments, the Appeal Board affirmed the judge’s decision in its entirety.
In a third matter, Judd successfully limited a claim for a foot and ankle injury to a closed period of less than four months. The judge found our expert credible and terminated benefits as of the date of our IME resulting in saving thousands of dollars for medical treatment the claimant had received after the date of the IME/date of termination of benefits.
*Prior Results Do Not Guarantee A Similar Outcome
What’s Hot in Workers’ Comp, Vol. 26, No. 11, November 2022 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 © 2022 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.