.

Benjamin K. Durstein

Portrait of Benjamin K. Durstein

As a member of the Workers' Compensation Department, Ben represents employers, insurance carriers and third-party administrators in defense of workers' compensation claims before the Industrial Accident Board and Delaware courts.

Ben earned his Bachelor of Arts degree from the University of Delaware in 2007, and went on to receive his juris doctor from Widener University School of Law in 2012.  After law school, he served as a judicial law clerk to the Honorable James T. Vaughn, Jr., who was then President Judge of the Delaware Superior Court.

Ben is a member of Delaware Claims Association, Delaware State Bar Association Workers’ Compensation Section and the Randy J. Holland Delaware Workers’ Compensation American Inn of Court.  He is admitted to practice in the State of Delaware.

    • Widener University Delaware Law School (J.D., cum laude, 2012)
    • University of Delaware (B.A., 2007)
    • Delaware, 2013
    • The Best Lawyers: Ones to Watch©, Workers’ Compensation Law – Employers (2024-2025, 2027)
    • Top Lawyer, Workers' Compensation Employer Defense, Delaware Today Magazine (November 2022)
    • Delaware Claims Association
    • Delaware State Bar Association; member, Workers' Compensation Section
    • Randy J. Holland Delaware Workers’ Compensation American Inn of Court
    • Ethics and the Duty to the Tribunal and Opposing Counsel, panelist, Delaware State Bar Association and the Industrial Accident Board Workers' Compensation Seminar 2023, Wilmington, Delaware, May 2, 2023
    • Strategies to Limit Exposure and Minimize Risk, Marshall Dennehey Workers' Compensation Seminar, October 27, 2022
    • Do’s and Don’ts in the Practice of Workers Compensation, Delaware State Bar Association William D. Rimmer Workers’ Compensation Seminar 2022, Wilmington, Delaware, May 3, 2022
    • Are You Coming or Going – Do You Know Your Course and Scope?, Marshall Dennehey webinar, October 26, 2020

Results

Petition to Terminate Ongoing Receipt of TPD Benefits Granted on Basis that Claimant Voluntarily Removed Himself from the Workforce

The Industrial Accident Board (IAB) granted our petition to terminate the ongoing receipt of temporary partial disability (TPD) benefits on the basis that the claimant had voluntarily removed himself from the workforce. The claimant was a correction officer who suffered head injuries in an altercation with an inmate. He was out of work for a time and eventually released to return to work on modified duty. His restrictions were permanent and, because they could not be accommodated by his employer, he was placed on TPD. After more than a year with no indication of an attempt to return to the workforce, we challenged his ongoing entitlement to receive TPD. We worked with the employer to obtain documentation regarding the claimant’s job search (or lack thereof), other sources of income (pension, Social Security) and recreational/social activities since he had been separated from employment. In addition, we put forward both medical and vocational expert testimony at the hearing. As a result, the IAB reasoned that the claimant was able to work in a medium-duty job, that jobs were available within his restrictions, the he had conducted a minimal job search since his work release more than a year and a half earlier, and that his description of his daily activities was consistent with a person content with a retirement lifestyle rather than someone who intended to continue to work. Accordingly, he was no longer entitled to wage replacement benefits.

Petition to Terminate Temporary Partial Disability Benefits Granted

We were successful in having our petition to terminate the ongoing receipt of temporary partial disability benefits granted on the basis that the claimant had voluntarily removed himself from the workforce. The Industrial Accident Board reasoned that the claimant was able to work in a medium-duty job, that jobs were available within his restrictions, the he had conducted a minimal job search since his work release more than a year and a half earlier, and that his description of his daily activities was consistent with a person content with a retirement lifestyle rather than someone who intended to continue to work. Accordingly, he was no longer entitled to wage replacement benefits.

Thought Leadership

What's Hot in Workers' Comp

Industrial Accident Board Denies EMT’s Motion to Amend Injury Date, Citing Statute of Limitations and Inexcusable Neglect

July 1, 2025

The Industrial Accident Board dismissed a workers’ compensation claim after determining that the claimant’s attempt to amend the alleged date of injury was both untimely and the result of inexcusable neglect. The claimant initially reported an injury occurring on May 26, 2023, but later acknowledged—well after the two-year statute of limitations had expired—that the incident had actually taken place in March 2023. Arguing that amendment should “relate back” to his original petition, the claimant sought to preserve the claim despite the revised date. However, the Board applied Superior Court Rule 15(c) and found that the amendment failed to arise from the same occurrence and that the delay in correcting the date was unjustifiable. As a result, the motion to amend was denied, and the petition was dismissed as time-barred. The claimant worked as an EMT for the employer. On August 21, 2023, he reported that a few months earlier, on May 26, 2023, he had injured his low back while moving a patient in a stretcher. The claim was denied by the employer due to the late reporting of the event and because there was no evidence to support that a work accident occurred on that day. On December 1, 2024, the claimant filed a Petition to Determine Compensation Due that sought acknowledgment of injuries sustained at work on May 26, 2023. On February 23, 2025, the employer inquired as to whether the correct date of loss was asserted because medical records reflected a similar incident on March 20, 2023. On April 8, 2025, the claimant responded that, upon review of his text messages, the accident at work had actually occurred in March 2023, not May 26, 2023. Upon request, the claimant produced screenshots of the text messages and represented to the employer that the correct accident date was actually March 20, 2023, or March 21, 2023—the claimant worked a night shift from the 20th to the 21st. The employer objected to an amendment of the date of loss, now more than two years after the alleged accident. The claimant filed a motion to amend the petition and contended that the amendment should “relate back” to the original filing date of December 13, 2024, which was within the two-year statute of limitations.  The Board determined that the best way to analyze the issue of “relation back” was to apply Superior Court Rule 15(c) because the Workers’ Compensation Act, Administrative Procedure Act and the Board Rules do not contain such a provision. To relate back, Rule 15(c) requires that the amendment “arise out of the conduct, transaction or occurrence set forth in the original pleading.” Additionally, Delaware courts will reject motions to amend when the moving party has shown inexcusable neglect. The Board concluded that the claimant’s proposed amendment failed on both fronts: (1) it did not arise out of the same occurrence as the original pleading and (2) his conduct constituted inexcusable neglect. The Board reasoned that the proposed change of the date of injury by more than two months was not a trivial amendment of a few days or a week. The revised claim occurred on a completely different day and time. Moreover, the Board emphasized that the claimant’s delay in reporting and subsequent failure to correct the date until after the statute of limitations had elapsed resulted in prejudice to the employer and constituted inexcusable neglect. Lastly, the Board held that no provision of the savings statute applied to grant the claimant an additional year to make a timely filing of the petition. The claimant’s motion to amend was denied, and the pending petition was dismissed.    What’s Hot in Workers’ Comp, Vol. 29, No. 7, July 2025, 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 © 2025 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.

What's Hot in Workers' Comp

Petition to terminate total disability benefits for claimant who had light-duty restrictions that could not be accommodated denied; claimant had reasonable expectation of returning to pre-injury job with same employer when his condition improved.

February 1, 2025

On November 4, 2023, the claimant injured his left knee in a compensable work accident that required surgery to his patella. He had to switch doctors after his first treating surgeon passed away. On March 26, 2024, the claimant was released to return to light-duty work, but with no use of the stairs. He briefly returned to work, but the employer was not able to accommodate those restrictions because his job required using steps connecting multiple levels of the plant.  The claimant was issued a note on June 17, 2024, that removed the stairs restriction. He briefly returned to a modified-duty position with those restrictions, but a few days later, he was taken back out of work with a more restrictive, light-duty note.  On August 5, 2024, the employer filed a petition to terminate total disability benefits on the basis that the claimant was capable of returning to work and there were jobs within his restrictions available.  The parties stipulated that the claimant continued with light-duty restrictions and that jobs identified within a labor market survey were available and within those restrictions. Therefore, the sole issue to determine entitlement to temporary total disability benefits was whether the claimant qualified as a “Hoey displaced worker.” The legal standard was whether the claimant had a reasonable expectation of returning to work for the employer.  The Industrial Accident Board concluded he did and confirmed the claimant was informed he would not be able to return to work without a lifting of his restrictions. However, he was also told to keep the employer updated about his medical appointments and any changes in restrictions. He was never separated from employment or told to look for employment elsewhere.  The claimant’s testimony, that he expected to improve with physical therapy and return to his pre-injury job, was found to be credible by the Board. The termination petition was denied.    What’s Hot in Workers’ Comp, Vol. 29, No. 2, February 2025 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 © 2025 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.

Firm Highlights

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.