On the Pulse…Important and Interesting Litigation Achievements…We Are Proud of Our Attorneys for Their Recent Victories*
Casualty Department
Jason Banonis (King of Prussia, PA) obtained summary judgment on behalf of a client in Monroe County, Pennsylvania, in an apartment complex slip and fall on snow and ice case. The court determined that the evidence adduced by the plaintiff did not meet the requirements for the Hills and Ridges Doctrine (i.e., that snow and ice had accumulated on the ground in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians). The court also concluded that there was no proof of a dangerous condition or notice of the condition to establish a breach of duty.
In a lawsuit seeking $279 million in alleged property damages, Tom Birris, Stuart Sostmann and Darren Newberry (Pittsburgh, PA) successfully defended their client, a subcontractor of a railroad repair shop, against any and all liability. The case involved the August 2016 rupture of a railroad tank car containing 178,000 lbs. of liquefied chlorine at the plaintiff’s chlorine manufacturing plant in West Virginia. The tank car had recently been returned to the plaintiff after undergoing extensive repairs in the spring of 2016. The plaintiff filed suit against three parties as a result of the chlorine release: its fleet maintenance manager, the railcar repair shop that performed the 2016 repairs to the tank car and our client, a subcontractor of the railroad repair shop involved in the aspect of the repairs which the plaintiff claimed were performed negligently. At the time of the 2016 repairs, the tank car was 37 years old and had several characteristics associated with it that were known in the railroad industry to cause cracks in the tank’s shell. It was undisputed at trial that there was a small, pre-existing crack in the tank shell prior to the 2016 repairs at issue and that, but-for this pre-existing crack, the tank car would not have ruptured in August of 2016, which was the first time the tank car was loaded with chlorine since the repairs had been completed. Allegations of comparative negligence were asserted by all of the defendants against the plaintiff for its decision to repair, rather than scrap, the tank car in 2016. During trial, the plaintiff asserted it was entitled to $278 million in replacement-value property damage associated with alleged damage to its equipment at its 500-acre chlorine manufacturing plant. The plaintiff requested, and the trial judge granted, a jury instruction providing that the jury could award replacement value damages. The nearly six-week trial encompassed over 30 witnesses and 10 expert witnesses. After deliberations, the jury awarded only $12.8 million in damages, assessing the railcar repair shop with 40% of liability, the plaintiff’s fleet maintenance manager with 20% of liability and the plaintiff itself with the remaining 40% of liability. No liability was assessed to our client.
Joanna Buchanico (Philadelphia, PA) successfully briefed and argued for trial coordination of 23 lawsuits in Lebanon County. The 23 lawsuits, filed in five separate jurisdictions, stemmed from a 64-vehicle pileup in Lebanon County with three fatalities. Joanna’s clients were named defendants in every case. Five cases were filed in Philadelphia County, and all the plaintiffs requested the cases be tried in Philadelphia County. The plaintiffs’ arguments were rejected by Judge Bradford Charles, who wrote a 56-page opinion granting the defendants’ requests for coordination.
Patrick Carey and Michael Garcia (Erie, PA) obtained summary judgment relief on behalf of an amusement park in a lawsuit for alleged personal injury sustained at the park’s lazy river attraction. The plaintiff, his wife, and three minor children were business invitees at our client’s amusement and water park. The plaintiff alleged he sustained injury when he attempted to board an inner tube on the lazy river attraction, which was staffed by certified lifeguards. The plaintiff claimed that the lifeguards negligently failed to assist and/or help him get onto the inner tube and were further negligent for failing to observe him while he attempted to do so. As a result of the lifeguards’ alleged negligence, the plaintiff claimed his inner tube flipped backwards, resulting in his head striking the floor of the shallow watercourse. During their depositions, the plaintiff and his wife conceded that the extent of the lifeguards’ assistance to visitors of the attraction was gathering vacant inner tubes and pushing them towards people waiting in line. Moreover, the plaintiff testified he made one initial unsuccessful attempt to climb on an inner tube before ultimately “over engineering it” on his second attempt, which caused the inner tube to flip backwards. The court agreed that under the “no-duty” rule, the lifeguards did not owe the plaintiff a duty because the alleged risks associated with climbing onto an inner tube in the lazy river attraction were common, inherent, expected or frequent risks associated with the activity. Furthermore, the plaintiff was unable to satisfy an exception to the “no-duty” rule because he could not prove the employees deviated from an established custom or duty. The trial court’s decision granting summary judgment and dismissing the plaintiff’s claims, with prejudice, was ultimately affirmed on appeal to the Pennsylvania Superior Court.
Melissa Dziak and Robert Aldrich (Scranton, PA) successfully obtained summary judgment on behalf of their client, a car dealership. The dealership rented a vehicle to the co-defendant, who was having his personal vehicle serviced at the dealership. The co-defendant was involved in an auto accident with the plaintiff while operating the dealership’s rental. The plaintiff was operating a motorcycle, and significant damages were alleged. Melissa and Rob filed a motion for summary judgment pursuant to the Graves Amendment, which states that an owner of a motor vehicle who rents a vehicle to a person shall not be vicariously liable for harm to persons or property that arises out of the use or operation of that vehicle during the period of the rental, so long as certain additional criteria is met. The court agreed with our arguments raised in the motion and dismissed our client with prejudice.
Matthew Gray (Melville, NY) successfully argued and obtained a full withdrawal of an arbitration matter filed against a major insurance company. The applicant/plaintiff-provider filed an arbitration matter, originally totaling $305,695.15 in medical expenses, claiming the insurer owed payment for unpaid medical bills stemming from a March 19, 2021, automobile accident. The applicant/plaintiff-provider’s position was that the entire amount was owed because our client had not reimbursed the medical provider for the services rendered. It was our client’s position that the treatment rendered was billed for in gross excess of the applicable New York State Workers’ Compensation Medical Fee Schedule, and that after an internal fee scheduling audit, limited recovery and paid the applicant/plaintiff-provider in full, in the amount of $22,180.23. After many months of arguments, the applicant/plaintiff-provider recognized that the fee audit was proper and legitimate and withdrew, with prejudice, the entire matter.
Kimberly House (Philadelphia, PA) received an order granting in part and denying in part a motion for summary judgment in Philadelphia. This was an auto accident case where the plaintiff was a passenger on a bus owned and operated by our client, the only defendant. The bus backed into a pole in a parking lot, and the plaintiff claimed he was injured as a result. We moved for summary judgment on several grounds, including lack of an expert on causation, no evidence to support a negligent entrustment claim, and the claim against an “unknown driver” was improper under the law. The court granted in part and denied in part the motion for summary judgment. The court dismissed the claim against the unknown driver as well as the claim for negligent entrustment. The claim for respondeat superior remains in the case.
Timothy Jeager (Roseland, NJ) was successful in obtaining summary judgment on behalf of a restaurant client in a slip and fall case. The court ruled the restaurant, a tenant in a multi-tenant shopping center, owed no contractual duty or common law duty to the plaintiff, a customer of the restaurant, who fell in the parking lot of the shopping center while walking to the rear door of the restaurant.
Jennifer Meyers (Westchester, NY) won two appeals before the Appellate Division, Second Department. Jennifer represented an out-of-possession landlord in a personal injury action which became the subject of two appeals. The plaintiff worked in retail and was allegedly injured due to a claimed defect to the front door. After we moved for summary judgment, the plaintiff opposed our motion and made an entirely new allegation of liability against our client. She also sought to amend her bill of particulars to assert this new claim. The plaintiff’s motion to amend was granted, and our motion for summary judgment was denied with leave to renew after additional discovery relating to the plaintiff’s new claim. We appealed this decision, and the Appellate Court unanimously reversed the decision granting the plaintiff’s motion to amend and reversed its order denying summary judgment, finding that our insured was an out-of-possession landlord. With respect to the second appeal, after the plaintiff was given leave to amend her bill of particulars, we conducted further discovery and moved for summary judgment a second time, and we won this motion. The court agreed with our position that our client was an out-of-possession landlord and that the plaintiff had failed to demonstrate notice. The plaintiff appealed this decision, which the Appellate Court unanimously dismissed.
Thomas O’Malley and Carol VanderWoude (Philadelphia, PA) obtained dismissal via preliminary objections of all claims asserted against our client, a day care center, in a shooting case venued in Philadelphia. The case arose from the shooting death of a student’s father. The shooter had been previously convicted of manslaughter and assault and was an employee of the day care center’s long-time food service vendor. While the decedent was dropping off his youngest child at day care, he got into an argument with the shooter, who was on the premises delivering food. The decedent subsequently drove away with his seventeen-year-old son in the passenger seat, and the shooter followed in his work van. A few blocks away from the day care center, the shooter pulled up alongside the decedent’s vehicle and repeatedly fired a handgun at the decedent. The decedent’s son survived the shooting. The food service vendor, its affiliated entities, the day care center and the shooter were named as defendants. The claims against the day care center included negligence per se, negligent hiring, negligent supervision, negligent undertaking to render services, negligent infliction of emotional distress, violations of the Unfair Trade Practices & Consumer Protection Law (UTPCPL), negligent misrepresentation and negligent infliction of emotional distress as to the decedent’s seventeen-year-old son who witnessed the shooting. The plaintiffs’ negligence per se claims centered on alleged violations of the Child Protective Services Law (CPSL), the Public Welfare Law (PWL) and the Pennsylvania School Code (School Code). Among other things, the plaintiffs took the position that the day care center had a duty to ensure that its service vendor’s employees did not have criminal records because those employees foreseeably came into contact with children and parents. On behalf of the day care center, we filed preliminary objections seeking dismissal of all claims asserted against it. After briefing, the Philadelphia Court of Common Pleas granted our preliminary objections. The case subsequently resolved with no contribution whatsoever from our client.
Christopher Power (Melville, NY) received a defense verdict in a New York Labor Law case in Suffolk County, New York. The plaintiff, a pipefitter employed at a construction site, claimed he tripped and fell over a 2’ x 4’ metal stud, causing him to sustain a shoulder injury and subsequent surgery. The plaintiff sued the owner and general contractor under the New York State Labor Law. At his deposition in 2018, the plaintiff produced a photograph showing a loose metal stud lying on the floor of the construction site. When questioned as to who took the photograph, he stated that his friend Brian, a co-worker, took the photo but that he was not there when it was taken. Four days later, Chris visited Brian and showed him the photograph produced. Brian denied ever taking the photograph and showed Chris the one photograph that he did take, of the plaintiff merely sitting on a bench after the incident. With Brian’s permission, Chris took a picture of that photograph and had Brian sign an affidavit stating that he did not take any photo of a loose stud. During trial, the plaintiff again produced the photograph (which was entered into evidence) and testified that it was taken by his friend and co-worker, Brian. The plaintiff also testified that he was not wearing sunglasses at the time of his fall, despite an email from a co-worker to his employer who witnessed the incident stating that he was. The email also stated that the plaintiff tripped and fell while trying to squeeze between two vertical metal studs while wearing a work backpack and carrying two energy drinks. When the plaintiff rested his case, Chris called the eyewitness to the stand, who testified that the plaintiff tripped and fell trying to fit through two vertical studs while wearing a backpack and sunglasses. He further testified that the plaintiff tripped over a fixed plate on the floor, not a loose stud. Chris then called the plaintiff’s friend and co-worker, Brian, to the stand, who testified that he did not take the photograph produced by the plaintiff and did not give the photograph to the plaintiff. Not surprisingly, the jury rendered a defense verdict.
Bradley Remick and Shane Haselbarth (Philadelphia, PA) prevailed on an appeal to the Third Circuit, which affirmed the district court’s rejection of the plaintiffs’ request for class certification in a product liability and warranty action. The named plaintiffs were several property owners and communities of common ownership who alleged they have yellow-jacketed, corrugated stainless steel tubing (CSST) transporting natural gas through their structures. The flexible, yellow CSST is the modern heir to the black iron pipe formerly universal in the building industry. The flexible CSST offers advantages, including ease of installation, but the plaintiffs assert there are latent product defects that risk failure in the event an electrical surge makes its way to the tubing, either from an in-house event or nearby lightning strike. The district court denied the plaintiffs’ request for nationwide and Pennsylvania-wide class certification of their disparate claims because of a failure of record proof on the elements of ascertainability of a sufficiently numerous class, predominance of typical and common claims, and an inability to demonstrate proof of liability and damages issues on a class-wide basis. The Third Circuit granted the plaintiffs’ request for interlocutory review of the class certification decision, but nevertheless affirmed the district court’s ruling on largely the same bases. Without passing on the merits of the product defect claims, the Third Circuit recognized that there was no basis to grant class-wide treatment given the differences in everything from notification to putative class members, liability and damages proofs, and the law governing claims. Thus, the denial of class certification was affirmed, and the case will proceed on an individual basis only.
Health Care Department
Robert Aldrich (Scranton, PA) obtained an entry of judgment on behalf of his client, an urgent care physician. The plaintiff filed suit in magisterial district court in Wayne County. She alleged the physician negligently sutured a hand laceration, leading to dehiscence and the need for subsequent surgery. The plaintiff sought recovery of medical expenses and pain and suffering. At the bench trial, Rob sought dismissal based upon the plaintiff’s lack of expert support for her claims, as is required in medical malpractice claims. The court agreed and entered judgment in the defendant’s favor.
Matthew Keris and Robert Aldrich (Scranton, PA) successfully obtained partial summary judgment on behalf of a nursing home and its corporate defendants. In the complaint and throughout discovery, the plaintiff raised claims of overarching neglect in addition to a fall that occurred during physical therapy. The plaintiff alleged negligence, corporate negligence, and punitive damages premised upon allegations of understaffing, Department of Health violations, and putting profits over patient care. The plaintiff sought to hold not only the nursing home, but also its management company and a holding company, liable for such claims. Matt and Rob sought partial summary judgment. They asked the court to limit the plaintiff’s claims to the fall only and argued that neither the record evidence nor the plaintiff’s expert reports supported the all-encompassing claims of neglect. The court agreed and narrowed the claims, thereby significantly hampering the plaintiff’s attorney’s “playbook,” often used in nursing home cases. The court limited the trial claims to the fall only. The court also dismissed punitive damages and dismissed the holding company defendant outright.
Professional Liability Department
Brigid Alford (Harrisburg, PA) and Pooja Mehta (Philadelphia, PA) successfully tried an uninsured motorist case in the United States District Court for the Eastern District of Pennsylvania. The jury returned a $15,000 verdict, $10,000 below the offer of judgment in place at at the time trial began. The plaintiff’s last demand before trial had been $1,250,000. The court had dismissed the bad faith count earlier in the case.
Brigid Alford and Brian Wauhop (Harrisburg, PA) received an order and opinion from the Middle District of Pennsylvania granting our client carrier’s motion to dismiss a bad faith count, which had been raised as part of a property damage/contract claim under a homeowner’s policy.
Samuel Cohen (Philadelphia, PA) and Jeremy Zacharias (Mount Laurel, NJ) were successful in opposing a motion for recusal before the Honorable Linda Grasso Jones, J.S.C. The plaintiff, a pro se litigant and a former financial advisor, sued individuals over the sale of his book of business. The first case was the subject of a comprehensive bench trial before Judge Grasso Jones, resulting in a defense verdict. While the first case was pending on appeal, the plaintiff filed the instant matter, alleging the parties and their attorneys from the first case fraudulently concealed documents and committed fraud upon the court, leading to an improper defense verdict. In this matter, the plaintiff sought to recuse Judge Linda Grasso Jones from presiding over this matter based on her alleged bias and incapacity to sit fairly. The motion argued that the judge disregarded inconvenient facts, the New Jersey Court Rules, binding precedent, the Rules of Professional Conduct and the Code of Judicial Conduct. Sam and Jeremy successfully opposed the plaintiff’s motion, arguing that the plaintiff did not meet the standard under New Jersey law to move for recusal of a sitting judge. They further argued that the plaintiff’s motion was simply an improper collateral attack on the judge’s various orders of the first case. The court agreed and denied the plaintiff’s motion.
Scott Dunlop, Christian Marquis, Nicole Carnevale and Morgan Randle (Pittsburgh, PA) successfully obtained judgment in favor of a local borough and its employees/agents following numerous rounds of motions to dismiss in the Western District. The plaintiff, a construction contractor, brought suit alleging the borough violated its constitutional civil rights by failing to issue it a grading permit in the time it perceived as reasonable. The matter is more generally described as a land use dispute, involving the plaintiff’s excessive dumping and destruction of a local sewer line, thus jeopardizing the health and safety of the local residents. In support of dismissal, we argued that no substantive due process rights were violated and that the civil conspiracy claim as to the individual defendants failed as a matter of law. The court agreed and granted the plaintiff leave to amend. Failing to heed our position, the plaintiff filed an additional complaint, to which we again moved to dismiss. The court agreed with our arguments and dismissed the federal claims, with prejudice.
Ray Freudiger (Cincinnati, OH) recently received dismissal of two charges filed with the Ohio Civil Rights Commission. The charging party had been removed from two of the employer’s stores. He claimed it was due to discrimination because of his race and disability (he had a service animal with him). Ray submitted a position statement along with affidavits of employees and managers, explaining that the charging party was removed because he was videoing other customers without their consent and making racially charged comments to employees and customers.
In a case handled by Ray and Brad Haas (Pittsburgh, PA), they won summary judgment on behalf of an insurance agent and broker in the Franklin County Ohio Court of Common Pleas. The plaintiff, who owns a restaurant, sustained personal injuries in a car accident while on a business errand. He collected the tortfeasor’s liability limits of $100,000 and then filed underinsured motorist claims with his own insurance carrier who had issued the personal auto and commercial auto policies. The underinsured claims were denied by the carrier. There was no UIM coverage under the personal auto policy because the $100,000 UIM limits equaled the liability carrier’s limits. Further, although the plaintiff had $1 million UIM limits on his commercial policy, the Mazda he was driving at the time of the accident was not listed on the commercial policy; rather, it was listed on the personal auto policy. The court granted our motion for summary judgment on several bases: (1) the statute of limitations began to run when the Mazda was first put on the personal auto policy, not when the accident occurred; (2) despite the plaintiff’s and the agent’s friendship and long-standing business dealings, there was not a fiduciary relationship between the agent and insured customer; and (2) the agent’s alleged statement to the plaintiff that he was covered in “every single possible way you can think of” did not amount to a misrepresentation of fact.
Karen Grethlein and Josh Byrne (Philadelphia, PA) obtained dismissal of a declaratory judgment action against our clients, a national firm and its principal who specialize in identifying and reclaiming lost property for consumers who do not realize such lost property exists. The plaintiff brought this declaratory judgment action on the heels of having suffered a smarting defeat in an attempted class action lawsuit against our clients. In that underlying litigation, the lower court dismissed the plaintiff’s lawsuit twice, and the Third Circuit affirmed the lower court’s dismissal. The plaintiff brought this action to preempt any attempts by our clients to someday bring a Dragonetti claim against him for filing the class action lawsuit in the underlying litigation without probable cause. We filed a motion to dismiss the plaintiff’s declaratory judgment action, asserting that his lawsuit was improper because it was asking the court to make a decision on an issue that had not yet arisen. The court granted our motion and soundly rejected the plaintiff’s claims, issuing an opinion that decisively stated, “No amendment would save [plaintiff’s] Amended Complaint.” The lawsuit against our clients was dismissed with prejudice.
Mark Kozlowski (Scranton, PA) obtained summary judgment in Carbon County, Pennsylvania, in a negligence action brought against a local school district. The plaintiff, a former high school athlete, was working out in the District’s weight lifting facility when a cable snapped on a leg curl machine, striking his head and causing significant injury. In his suit against the District, the plaintiff alleged negligence in the operation, inspection, and maintenance of the gym and, more specifically, the leg curl machine. Following discovery, the District moved for summary judgment, arguing that the leg curl machine at issue was personalty and not part of the District’s real property and, accordingly, the Pennsylvania Political Subdivision Tort Claims Act (PSTCA) prevented recovery. The court agreed and concluded the District was immune under the PSTCA since all evidence showed that the leg curl machine was not a fixture of the building and, therefore, the “real property” exception to local governmental immunity did not apply.
Trish Monahan (Pittsburgh, PA) successfully handled a pension rights action before the Commonwealth Court on behalf of a municipality. A police chief in a small municipality alleged that a scrivener’s error in his employment contract erroneously referencing Act 600 entitled him to an Act 600 pension plan upon retirement, even though his existing pension plan had been organized pursuant to Act 15. The police chief had never contributed to an Act 600 pension plan, which would have provided for much higher benefits and for which the municipality had no funds set aside to pay because it had never established an Act 600 plan. The Commonwealth Court held that the police chief’s pension rights existed only under Act 15 because the municipal pension ordinance was established under Act 15, not Act 600. Pennsylvania law requires an ordinance to establish pension rights, which cannot be conferred only by agreement, without an ordinance. This decision was very important to the municipality we represented, which did not have funds to pay Act 600 pension benefits to the police chief upon his retirement. The opinion affirms well-established law that a municipality cannot contract for benefits if there is no enabling law for the benefits.
Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) obtained the dismissal of an ethics grievance on behalf of an attorney specializing in special education law. The grievant filed her ethics grievance based upon allegations of fraudulent and unethical practices, accusing the attorney of taking legal fees from a settlement, and alleging the attorney was prohibited from doing so based on the terms of the settlement agreement. Specifically, the grievant alleged that the attorney failed to safeguard funds from an irrevocable trust for a special needs child, the grievant’s son. In fully investigating this grievance, the District Ethics Investigator concluded that, based on the evidence received, the interviews conducted and the submissions prepared on behalf of the attorney, the investigation did not reveal clear and convincing evidence that the attorney engaged in unethical conduct.
In another case handled by Jack and Jeremy, they successfully argued before the Appellate Division that the trial court was correct in dismissing a case on summary judgment. The New Jersey Appellate Division affirmed a trial court’s decision granting summary judgment in a $10 million tortious interference and defamation case filed by borrowers against the attorneys for a lender bank. This case arose out of an underlying deficiency and foreclosure action filed by a bank due to the plaintiff’s failure to repay a multi-million dollar loan used to finance the purchase of real estate. During the course of negotiations to resolve the debt, the bank’s counsel had discussions with the plaintiff’s new lender. The plaintiff alleged that during these discussions, the defendant attorney called the plaintiff a “wannabe gangster.” The Appellate Division held that the trial judge correctly concluded that a statement made by the bank’s attorney to a potential new lender calling the plaintiff a “wannabe gangster” was mere name calling and not actionable defamation. Jack and Jeremy argued on appeal that this pejorative was simply name calling and did not rise to the level of actionable defamation or slander. The claims for tortious interference were based upon the lost opportunity since the new lender rescinded its conditional commitment after the alleged statement was made. The Appellate Division also held that the trial court was correct in holding that the statements were protected under the litigation privilege. The Appellate Division held that the litigation privilege is not confined to the courtroom, but extends to all statements or communications in connection with judicial proceedings.
Workers’ Compensation Department
Ross Carrozza (Scranton, PA) prevailed on an appeal of a black lung decision. The case involved a coal miner who worked underground mining for over 23 years. The claimant originally appealed the Administrative Law Judge’s decision denying benefits, contending that the judge erred in weighing the evidence in failing to find total disability. After careful consideration, the Benefits Review Board found that the judge’s denial of the claimant’s benefits was appropriate and that the claimant had not established total disability, a change in condition, or a mistake in fact on the appeal. Consequently, the employer prevailed.
Benjamin Durstein (Wilmington, DE) won on appeal that affirmed a decision of the Industrial Accident Board which denied a claimant’s petition for a recurrence of total disability benefits due to a worsening of her complex regional pain syndrome. The Delaware Superior Court concluded that there was substantial evidence to support the Board’s ultimate determination and preference for the employer’s medical expert’s and vocational expert’s opinions, over those of the claimant’s experts.
Benjamin again prevailed before the Industrial Accident Board in a matter where the Board denied the claimant’s petition for additional compensation due on all counts and granted the employer’s petition for review to terminate total disability benefits. Specifically, the Board concluded that: (1) a proposed left ankle reconstruction surgery was not reasonable and necessary; (2) there was insufficient evidence to prove a compensable left knee injury; (3) there was insufficient evidence to prove a compensable lumbar spine injury; and (4) the claimant was capable of unrestricted return to work.
In a final victory for Benjamin, he successfully contested an evidentiary motion before the Industrial Accident Board. The Board denied a claimant’s motion to exclude surveillance evidence produced after the “30-day deadline,” reasoning that the probative value of the evidence outweighed the prejudice to the claimant. The evidence was deemed admissible for impeachment purposes.
Keri Morris-Johnson (Wilmington, DE) successfully defended a workers’ compensation claim where the Delaware Superior Court affirmed the Industrial Accident Board, finding that the claimant was not in the course and scope of employment when the injury occurred.
Tony Natale (Philadelphia, PA) successfully defended a regional energy efficiency service agency against a claim petition wherein the claimant attempted to use the COVID pandemic to support payments of disability. The claimant alleged that a work-related auto accident disabled him from employment at the time he was subject to an economic lay-off due to the pandemic. Tony convinced the court that, at the time of layoff, the claimant was capable of performing his pre-injury job duties despite alleged restrictions due to the motor vehicle accident. The judge also found the claimant to have made a full and complete recovery from the work injury during the pandemic lay-off and that the claimant demonstrated no good reason for his failure to return to work once the pandemic restrictions dissipated. The claim petition was denied and dismissed.
In another matter handled by Tony on behalf of a Berks County mushroom farm, he succeeded in arguing for dismissal of a claimant’s appeal to a Workers’ Compensation Judge’s decision that terminated and suspended benefits awarded for injuries to the claimant’s head, neck, and back while in the course and scope of employment. The central allegation on the claimant’s appeal was that he had a reasonable excuse to continue to miss work, despite being released to return to work by various experts. The claimant argued that obligations to sick members of his family trumped the employer’s request for him to return to work. The claimant also argued that he was not fully recovered from his work injuries and tried to convince the Appeal Board that other injuries existed which were not addressed by the judge. The appeal was dismissed in its entirety based on Tony’s argument that the claimant attempted to undermine credibility determinations made by the judge regarding medical experts and further tried to amend the Workers’ Compensation Act by changing the law as to refusal of available employment.
Finally, Tony successfully prosecuted two cases involving abandonment of available employment and ultimate full recovery from an accepted work injury. In the first case, Tony successfully prosecuted termination and suspension petitions on behalf of a Berks County food distributor. He was able to use the claimant’s own treating physician to certify that she fully recovered from her work-related injuries and that she was fully capable of continuing to work in a job position she had abandoned without just cause. The termination and suspension petitions were both granted by the judge.
In the second case, Tony successfully defended a Berks County can corporation in a claim petition involving a hand injury with subsequent discharge from employment due to abandonment of open and available work. The claimant sustained a thumb injury while working as a machine operator, and the employer accepted a medical only injury. The claimant continued to work his full-duty job, despite the injury, until he was discharged for cause—walking off of the job. The claimant tried to convince the court that he left work due to “high blood pressure” issues and that he was entitled to disability benefits. However, the employer’s fact witnesses disputed this allegation. The claimant then underwent surgery and alleged that his surgery disabled him from all employment and that he was still entitled to benefits. The employer presented fact witness testimony confirming that one-armed work was available to the claimant, despite his surgery, and that had he not been discharged for cause, but for job abandonment. The judge dismissed the claimant’s request for disability benefits.
Rachel Ramsay-Lowe (Roseland, NJ) successfully defended an appeal where the Judge of Workers’ Compensation found the claimant not credible. The judge also found that the claimant’s expert was not competent, as the expert rendered an opinion in reliance upon an incomplete medical history.
Andrea Rock (Philadelphia, PA) successfully defended a claim by limiting liability of benefits based upon strong medical expert testimony. In her claim petition, the claimant alleged that she sustained a contusion to the back of her head, a concussion, bilateral shoulder pain and neck pain. The judge found the claimant credible and that an incident did occur in the course and scope of her employment. However, the judge also found the employer’s medical expert credible. The employer’s medical expert found that the claimant was fully recovered as of the date of the Independent Medical Examination. This limited the receipt of indemnity and medical to fourteen months, rather than an ongoing claim.
Robin Romano (Philadelphia, PA) successfully prosecuted multiple petitions. They included a petition to terminate benefits regarding an accepted and infected lower leg laceration, a petition to review to expand the nature of injuries on the notice of compensation payable to include the lower back, a petition to review the average weekly wage, two utilization review petitions regarding treatment to the low back, and a petition to modify and suspend based upon the claimant’s return to work without the knowledge of the carrier. Also at issue were two penalty petitions, one alleging late wage loss payments, which, after testimony by the adjuster, was dismissed by the judge as baseless.
Michael Sebastian (Scranton, PA) successfully defended claim and penalty petitions filed that alleged a left hand and thumb injury requiring surgery. The judge granted the claim petition and awarded the payment of medical benefits. However, he did not order the payment of any indemnity benefits based on a post-injury termination for cause and based upon the testimony of the employer’s witnesses that work, even one-armed work, was available to the claimant. The judge terminated the claimant’s benefits based upon an IME report.
Michael also successfully defended a claim petition that alleged a work-related hernia. His defense expert found the claimant fully recovered, and the court agreed. He also successfully defended an appeal in this case, alleging that the claimant did not provide notice of the hernia within 120 days. The Appeal Board reversed the Workers’ Compensation Judge’s finding that the claimant did not provide notice that the hernia was work-related.
Judd Woytek (King of Prussia, PA) successfully defeated a claim petition and obtained a termination of benefits. The injury was accepted for a foot contusion for medical benefits only. The claimant claimed much more severe injuries and sought wage loss benefits after his termination from employment. Judd successfully argued that the injury was limited to a contusion from which the claimant had recovered and that his termination was for cause. The Workers’ Compensation judge denied the claim petition and granted our termination petition.
Judd also successfully obtained withdrawal of a claim petition based upon jurisdiction. In this case, the claimant was a truck driver who lived in Delaware. His injury occurred in Tennessee, where the employer is based. The claimant had attended orientation at the employer’s facility in Pennsylvania, but was not hired there or directed out of that location. Judd was able to convince claimant’s counsel to withdraw the claim petition based upon lack of jurisdiction for a claim in Pennsylvania.
Finally, Judd, along with Audrey Copeland (King of Prussia, PA) in our appellate department, obtained a favorable decision from the Commonwealth Court in a case involving a pre-Protz Impairment Rating Evaluation. The claimant had stipulated to a change in his benefit status from total to partial based upon an IRE performed in 2014. After Protz, the claimant sought reinstatement of total disability status. The Workers’ Compensation Judge granted the claimant’s petition and reinstated temporary total disability status as of the date the claimant had filed his petition in 2018. The Appeal Board affirmed. The Commonwealth Court, however, agreed with Judd and Audrey’s arguments that the claimant was not entitled to a reinstatement to total disability status because he had stipulated to the change in his disability status. The court held that the claimant was bound by the stipulation despite the intervening change in the law.
*Results do not guarantee a similar result.
Defense Digest, Vol. 27, No. 5, December 2021 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. © 2021 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.