What's Hot in Workers' Comp - News and Results*
NEWS
At our firm’s annual shareholder meeting held on December 6th, Ben Durstein (Wilmington) and Kelly Scifres (Jacksonville) were elected as Shareholders.
Angela DeMary (Mount Laurel) spoke at the 33rd Annual New Jersey Workers’ Compensation Bench-Bar Conference on December 13, 2022. Her presentation was titled “Moving Forward Together in a Time of Change.”
Bill Murphy (Roseland) authored “To Be or Not To Be: The Independent Contractor Versus Employee Debate Continues,” which was published in the December 2022 issue of CLM Magazine. You can read the article here: https://736506f6.flowpaper.com/CLMDecember2022/#page=16
On November 29, 2022, Michael Sebastian (Scranton) presented “Workers' Compensation Best Practices” at the Northeastern Pennsylvania Industrial Resource Center (NEPIRC) Executive Meeting.
Frank Wickersham (King of Prussia) will be speaking at the January 24, 2023, National Workers’ Compensation Insurance ExecuSummit. To see Frank’s presentation, “State of the Union – Medical Marijuana,” in person, you can register at: http://www.workerscompconference.com/
RESULTS*
Audrey Copeland (King of Prussia) convinced the Commonwealth Court to affirm a workers’ compensation judge’s decision to deny the claimant's petition to review a Utilization Review (UR) determination, and to reject the claimant's argument that the judge was barred by the rules of collateral estoppel and issue preclusion from ruling on UR petitions.
Audrey Copeland (King of Prussia) persuaded the Pennsylvania Supreme Court to deny the claimant’s petition for allowance of appeal in a workers’ compensation matter where the claimant challenged the constitutionality of Act 111 and its Impairment Rating Evaluation (IRE) provisions.
Keri Morris-Johnston (Wilmington) successfully defended a claim for a total knee replacement following a compensable knee injury. Keri argued the treatment was neither reasonable nor necessary because the claimant failed to attempt conservative care. The Industrial Accident Board agreed and denied the benefits.
Keri Morris-Johnston (Wilmington) successfully defended a COVID-19 claim involving a registered nurse. The plaintiff alleged she was exposed to COVID-19 while caring for a patient and infected both of her adult sons. One son died from COVID-19. Keri argued that COVID-19 was not an occupational disease and that she could not establish she contracted COVID-19 at work. The Industrial Accident Board agreed, resulting in a significant win for the employer.
Tony Natale, with the aid of Paralegal, Pamela Del Percio (Philadelphia), successfully prosecuted a suspension petition where the claimant refused to attend an Impairment Evaluation after receiving 104 weeks of indemnity benefits due to his injury. The court initially issued an order compelling the claimant’s attendance and the claimant maintained his refusal to attend the evaluation, citing to the fact that he was COVID positive and required to quarantine. Tony demanded that verification of the virus be made part of the evidence record. In response, claimant’s attorney submitted into the evidence record a COVID testing result which was an at-home test. Pam reviewed the testing result and found it was a fake—there was a pornographic image contained in the window of the positive testing result, and Pam determined through internet research that this fake test was being used all over the United States. The claimant’s attorney was unaware that the test was fake and maintained it as part of the evidence record. The court determined, based on the evidence, that benefits were suspended and actually concluded as a matter of law that the claimant committed fraud (a decision of first impression in Pennsylvania). A formal criminal fraud action will likely follow.
Judd Woytek (King of Prussia) obtained a suspension of benefits based upon a good faith offer of employment made by the employer, which the claimant refused. The claimant turned down the job and then quit. Therefore, the Workers’ Compensation Judge found in our favor and suspended benefits.
Judd Woytek (King of Prussia) obtained a termination of benefits on a claim where the claimant failed to appear and defend against our petition at three hearings.
Judd Woytek (King of Prussia) obtained a favorable outcome on a petition to review benefits filed by the claimant, seeking to increase her average weekly wage. The judge agreed with Judd’s argument that the average weekly wage was lower than originally calculated, based upon case law relating to the claimant being out of work for non-work-related conditions and remaining an employee of the employer during the year preceding the injury.
Judd Woytek (King of Prussia) obtained a termination of benefits on a claim that was accepted for a low back strain. However, the claimant had filed a review petition, seeking to expand the injury to include 10 disc herniations and two disc protrusions. The judge found completely in our favor, denied the claimant’s petition, and granted us a full termination of benefits as of the date of our IME.
Judd Woytek (King of Prussia) was successful in defending a Yellow Freight motion by establishing that the employer was never served with the notice of assignment of the claim petition to a judge. While the claimant’s attorney had properly served the claim petition itself on the employer, Judd correctly argued that it is the notice of assignment that triggers the employer’s obligation to file an answer within 20 days. Judd was able to prove that the employer’s address on the notice of assignment had the wrong zip code and that the employer was never served. Therefore, the judge found that the employer had a reasonable excuse for its late answer to the claim petition.
*Prior Results Do Not Guarantee a Similar Outcome
What’s Hot in Workers’ Comp, Vol. 26, No. 12, December 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 Warner Coleman & Goggin, 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.