What's Hot in Workers' Comp - News and Results*
NEWS
Michele Punturi (Philadelphia, PA) presented “Survivor: Workers' Compensation Edition” for the CLM Workers’ Compensation and Retail, Restaurant & Hospitality Conference, which was held virtually. Michele spoke with a panel of employers and claims professionals as they discussed ways to mitigate exposure and bolster defenses with strategic risk management and claims management tactics that result in favorable resolution and immunity from litigation.
Three attorneys from the Workers’ Compensation Department have been selected to the 2020 edition of Pennsylvania Super Lawyers magazine. Niki Ingram (Philadelphia, PA) was named a Super Lawyer for the 15th straight year. Pennsylvania Rising Stars include Raphael Duran and Ashley Eldridge (Philadelphia, PA). A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Each year, no more than five percent of the lawyers in the state are selected for this honor. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html.
Heather Carbone (Jacksonville, FL) authored the article "COVID-19 and Workers’ Compensation Claims: How Can a Person Prove They Contracted the Illness on the Job?” The article appeared in the Jacksonville Daily Record. Click here to read the full article. Heather, along with Kimberly Simmons, director of Safety and Claims Management at Fidelity National Financial Inc., co-authored “Be Kind and Keep It Simple: Managing Litigated Workers’ Compensation Claims Through Advocacy and Empathy,” which was published in CLM Magazine, June 2020. Click here to read this full article.
Frank Wickersham (King of Prussia, PA) authored "Medical Marijuana: Reasonable and Necessary Medical Care for Injured Workers?,” which appeared in The Legal Intelligencer's Cannabis Law Supplement. Click here to read the article.
RESULTS*
Tony Natale (Philadelphia, PA) successfully defended a large Philadelphia-based law firm in the litigation of a claim petition alleging post-concussion syndrome. The claimant slipped and fell at work, injuring his head and neck. The carrier accepted a contusion injury. The claimant alleged multiple additional injuries including cognitive maladies, memory loss, speech problems, vision convergence, photophobia, cranial nerve injuries and balance issues. The claimant testified while wearing sunglasses due to his alleged photophobia condition. Thirteen hours of surveillance video disputed the claimant's alleged symptoms (including his need for sunglasses). Prior health records revealed the claimant to be treating for his alleged cognitive problems before the work incident ever took place. The claimant's first treating neurologist records supported the claimant's symptoms to be non-anatomical. The carrier's IME physician found the claimant to have suffered non-disabling contusion injuries which resolved. The judge found in favor of the employer and carrier, ruling that the claimant's injuries were limited to contusions and had fully resolved. The claimant appealed the case to the Workers' Compensation Appeal Board, arguing the judge capriciously disregarded the evidence. The Board held the claimant's appeal was a veiled collateral attack on the workers' compensation judge's credibility determinations and affirmed the judge. At issue were potential life-time indemnity benefit payments and over $1 million of medical expenses.
Michael Duffy (King of Prussia, PA) recently won a case on appeal, reversing the judge’s decision. The carrier issued a Notice of Temporary Compensation Payable, agreeing to pay both indemnity and medical benefits for a lumbar strain allegedly sustained by the claimant. The 90-day period began on April 22, 2018 and ended July 20, 2018. On June 21, 2018, the claimant filed a claim petition for workers’ compensation benefits, alleging a low back injury. On July 17, 2018, the carrier issued a Notice Stopping Temporary Compensation Payable stopping benefits as of June 5, 2018, and a Notice of Compensation Denial. Thereafter, the claimant filed a petition for penalties, averring the carrier violated the Act by failing to stop benefits within five days of receipt of the last payment of benefits. Accordingly, the NTCP converted to a Notice of Compensation Payable (NCP). The judge ordered the carrier to reinstate disability benefits due to its failure to stop the claimant’s benefits within five days of the last payment. The carrier appealed, arguing that the Interlocutory Order was a final adjudication, merely labeled as “Interlocutory.” The carrier argued, because the judge’s order drastically altered the procedure and burdens of the litigation, it was a final adjudication and the carrier had a right to appeal. The carrier further argued that, even when a defendant fails to file a Notice Stopping within five days after the last payment but does so within the 90-day NTCP timeframe, the NTCP does not convert to an NCP. Nevertheless, the Board agreed that the Interlocutory Order was, in fact, a final adjudication and reversed the judge’s order. The Board found that the NTCP was properly stopped and denied within the 90-day NTCP timeframe, so it did not convert to an NCP.
Robin Romano (Philadelphia, PA) was successful in having a petition for penalties dismissed. The penalty petition alleged the employer failed to provide proper notice of two Utilization Review Requests and Determinations, which found the treatment of Dr. Palmaccio was neither reasonable nor necessary, and therefore, the claimant had no opportunity to file petitions to review these Utilizations Review Determinations. The judge found that the claimant failed to establish that he is entitled to a penalty or that the employer violated the Act. The judge also found not credible or persuasive the claimant’s argument that the carrier should have known the claimant was no longer using the post office box, despite the claimant never having advised the carrier while admitting that he continued to receive other correspondence from the carrier.
Judd Woytek (Allentown, PA) obtained dismissal of a claim petition based upon lack of coverage for the claimant, who was a corporate officer. The claimant suffered injuries, including a degloving of the right leg and a crush injury of the right foot and ankle, as the result of being partially run over by a truck. As a corporate officer of the employer, the claimant was specifically excluded from coverage under the policy of insurance issued by our client. After the judge indicated at a hearing that the documentary evidence presented clearly showed the claimant was excluded from coverage, the claimant agreed to a dismissal of the claim petition.
In another case handled by Judd, he obtained a dismissal of a claim petition where the claimant failed to proceed with his medical evidence in a timely fashion. Claimant alleged bilateral carpal tunnel syndrome and aggravation of primary osteoarthritis of his left thumb. He failed to provide notice of the alleged injury to the employer until after his employment had been terminated. The claimant testified in support of his claim petition, then failed to present medical evidence in a timely fashion. Although the judge granted the claimant two extensions of time, he dismissed the claim petition without prejudice due to the claimant’s failure to present any medical evidence.
Finally, Judd successfully litigated a modification petition before the judge based upon a labor market survey and earning power assessment. As a result, the claimant’s benefits were significantly reduced. The claimant then appealed to the Appeal Board, which affirmed, dismissing the claimant’s arguments that the evidence did not support a modification of benefits. The Appeal Board affirmed the judge’s decision in its entirety based upon Judd’s argument that the judge’s decision was supported by substantial competent evidence.
Ben Durstein (Wilmington, DE) successfully defended claimant’s petition for a recurrence of total disability benefits as of April 5, 2019. Claimant relied on the medical expert testimony of her treating physician who performed ketamine infusions and stellate ganglion injections to treat her complex regional pain syndrome diagnosis. The employer’s medical expert was found to be more persuasive than claimant’s expert. The Board reasoned that there had been little change in claimant’s condition from when she had gone on temporary partial disability and that she remained able to work in some capacity. Both doctors testified that the right upper extremity is the primary site of her CRPS and that the right lower extremity was affected to a lesser extent. Although claimant’s expert testified there had been a spread to the left upper extremity, it was not an accepted body part. Even if it were considered, there were no restrictions from any doctor regarding same.
The Board found claimant’s expert’s opinion did not support a recurrence as of that date. The Board noted the employer’s expert agreed with significant restrictions on the claimant for her condition, but these did not preclude her from working.
The claimant also presented an employability argument based on the testimony of a vocational rehabilitation expert. The Board was not convinced by claimant’s vocational expert’s testimony that claimant was unemployable with the restrictions from either doctor.
The Board denied the claimant’s petition.
*Prior Results Do Not Guarantee A Similar Outcome
What’s Hot in Workers’ Comp 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. 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 © 2020 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.