NEWS

Thank you to everyone who attended our first ever “virtual” Teach ‘n’ Treat webinar series! The support for the event was overwhelming, and all of the speakers did an excellent job presenting engaging and relevant content on important issues in workers’ compensation.       

For our Florida clients, we are hosting a free one-hour webinar on pre-existing conditions, major contributing cause and apportionment on Thursday, November 12, from 10:00 - 11:00 a.m. The course is approved for one hour of CEU credit. You can find more details and register here. 

Everyone is also invited to join us for the complimentary one-hour webinar: Navigate the Medicare Maze: A Practical Guide to Understanding Medicare Set-Asides. Ross Carrozza and Anthony Natale, co-chairs of our Medicare Set-Aside Practice Group, will offer practical advice to simplify the Medicare Set-Aside process. You can find more details and register here.

On October 13, 2020, The Philadelphia Legal Intelligencer published Michele Punturi’s (Philadelphia, PA) article “Keep Your Eyes on the Road – Distracted Driving and Workers’ Compensation Claims.” Read the article here.

On September 15, 2020, Jessica Julian (Wilmington, DE) spoke at the Workers’ Compensation Annual Seminar sponsored by the Delaware State Bar Association and Industrial Accident Board. Jessica’s topic was “In the Beginning: Initiating the Employer’s Defense.” Jessica also presented “Overview of Delaware Workers’ Compensation” to the City of Dover on October 14^th.

RESULTS*

Lori Strauss (Philadelphia, PA) successfully defended against a claim petition filed against a group home facility. The claimant alleged that he suffered a significant, disabling knee injury while carrying an air conditioner at work during the early hours of his shift. The claimant worked his entire shift, performing his full work duties for the remainder of his day. The claimant testified that he reported the work injury to a representative of the human resources department upon his completion of the shift. We offered testimony from three members of the human resources department who all disagreed with the claimant’s testimony. Additionally, we offered video from three cameras located in the facility which showed the claimant moving freely and that the claimant did not enter the human resources office suite on the day of the alleged incident. The judge found the claimant and his doctor not credible and further found all of employer’s witnesses and evidence to be more credible and convincing. The claim petition was denied and dismissed.

Michele Punturi (Philadelphia, PA) successfully defended against a claimant’s appeal that granted a termination of all benefits in relation to the work injury, including medical. The claimant asserted the judge erred with the facts and the law and the decision was not based upon substantial competent evidence of record as the claimant continues to suffer from his work injury and disability. Contrary to the claimant’s assertion and as accepted by the Appeal Board, the defense presented very cogent evidence, based upon the comprehensive evaluations by two Board Certified physicians with upper extremity specialties, supporting no objective findings and no findings supportive of any subjective complaints as they relate to the upper extremity injury. Further, a detailed cross-examination of the claimant’s medical expert further established the expert could not and did not offer an explanation to support that the claimant was not fully recovered, and he was challenged on the exact mechanism of injury, nature and extent of medical treatment, and a lack of causation, which he could not counter with any substantial competent evidence.

Michele also successfully defended against the claimant’s appeal. The court denied the claimant’s petition to review compensation benefits, seeking an entitlement to a reinstatement of benefits based on  an unconstitutional IRE. The court relied upon Whitfield v. WCAB (Tenet Health Systems, LLC.), 188 A.2d 599 (Pa. Cmwlth. 2018), in finding the claimant failed to meet his burden of proof by not presenting testimony to support his legal argument. While the defense did not agree with the judge’s reasoning, the defense adamantly argued it was the claimant’s position that the issues were purely legal such that no testimony of the claimant was warranted. Despite repeated requests, claimant’s counsel chose a legal strategy to not present the claimant’s testimony. The claimant further argued for nunc pro tunc relief as the interests of justice required that the matter be remanded to the judge for the claimant to testify as to ongoing disability. The defense presented a strong argument that the claimant’s position was misguided, unfounded and without any merit, and the Appeal Board agreed. Failure to take the claimant’s testimony was waived and attempts to re-litigate the matter on a remand were clearly prejudicial and contrary to the defendant.  

Michele successfully defended against the claimant’s appeal denying the claimant’s claim petition and granting a termination petition. The injury was accepted as a medical only lumbar strain, but the claimant asserted the injury should be expanded to include bilateral lower extremity radiculopathy resulting in total disability. It was the claimant’s position that the judge erred in granting the claim and the termination petitions, and the Appeal Board disagreed with this position on the basis of detailed cross-examination of the claimant and substantial medical evidence  supported by the defense medical expert. The defense emphasized that the claimant’s medical expert, who attempted to expand the nature of the injury, could not substantiate the opinion because the diagnostic study films were contrary to that opinion and were evident of a chronic, age-related degenerative condition absent of any post-traumatic indications.

Tony Natale (Philadelphia, PA) successfully prosecuted a de novo request for hearing to challenge the Pennsylvania Bureau of Workers’ Compensation Fee Review Section’s final determination holding that an injured worker’s shoulder surgery expenses must be paid by the insurance carrier and employer. Tony argued that the work-relatedness of the shoulder surgery is currently in dispute, thus barring the Bureau’s attempt to force payment. Tony also proffered the argument that due process of the provider remained intact since the challenge to work-relatedness must be adjudicated before a provider has standing to challenge the amount or timeliness of payment. The court’s decision quashed the Bureau’s determination and held that no surgical expenses are payable.

Tony also defended a national car insurance underwriter/carrier in an appeal before the Workers’ Compensation Appeal Board. In the underlying action, the claimant alleged that her job activities caused her to succumb to carpal tunnel syndrome that needed surgical repair. The judge found the claimant’s conditions not to be work-related. On appeal, the claimant argued that the judge’s conclusions of law were not reasoned and not supported by the record. Tony convinced the Board that there was substantial evidence to support the judge’s findings and conclusions and that the Board, therefore, does not have standing to overturn on review.

Tony also successfully prosecuted a termination petition and Petition to Review a Utilization Review Determination on behalf of a Philadelphia-based transportation authority. The case has direct impact on the workers’ compensation system since the termination petition dealt with the issue of a “piecemeal” full recovery—a petition seemingly banned by recent case law. The UR Review petition dealt with the systemic flaws in the UR process that resulted in a collateral attack on a previous judge’s decision regarding reasonableness and necessity of medical treatment. The judge opined that the claimant fully recovered from a work-related knee injury and post-injury surgery despite part of the meniscus in the knee now missing. Tony successfully argued that the missing piece of meniscus did not functionally impair the injured worker. Moreover, Tony convinced the court that a partial termination of benefits is proper in this scenario because the original petition was filed only to the claimant’s knee injury and extricated itself from any additional compensable injuries. The judge also agreed that the UR Determination issued in the matter collaterally attacked a previous judge’s decision on the issue of reasonableness of chiropractic treatment. The decision exposed the problem of final decisions of a judge on reasonableness of medical treatment being attacked by the UR process when an injured worker switches treating providers or files new prospective reviews.

Tony successfully prosecuted suspension and termination petitions and defended a claim petition for a Berks County mushroom distribution company. The claimant sustained a work injury to his upper extremity when he slipped and fell during the course and scope of his employment. He returned to work in a light-duty capacity and then abandoned the job shortly thereafter. He filed a claim petition to add concussion, neck, and low back injuries. Testimony of fact witnesses proved that the claimant abandoned his job in bad faith while medical testimony proved the claimant to be fully recovered from his accepted injuries. Cross examination of the claimant’s medical expert demonstrated the expert’s lack of knowledge as to the facts of the claim and mechanics of the injury. It was further established through the cross examination of the claimant that he lacked any credibility regarding allegations of head, neck, or low back injuries. The suspension and termination petitions were granted by the court and the allegations of head/concussion, neck and back injuries were dismissed.

John Swartz (Harrisburg, PA) was successful defending against a claim petition for a left foot injury, allegedly to be traumatic plantar fascitis and aggravation of pre-existing plantar fascitis and tendonitis. John was successful in defending the claim by showing that the claimant had longstanding left foot complaints, as well as a previous surgery. In addition, the claimant’s testimony was rejected by the judge for his misrepresentation that he did not have a CDL license when he initially testified. After further discovery, John was able to obtain information that the claimant did have an active CDL license at the time he testified, having a physical examination for his CDL and obtaining his license a month before he testified initially. The claimant’s credibility was also impeached in other parts of his testimony. He alleged a lack of funds for medical treatment when he had medical insurance through his spouse and had just received a $10,000 stimulus unemployment check. The judge rejected his testimony in its entirety for these reasons. The judge further rejected the medical evidence the claimant submitted from a podiatrist versus a board-certified orthopedic surgeon. The judge found the claimant had suffered no traumatic injury and his complaints were due to his pre-existing plantar fascitis condition in his left foot.

John was also successful in defending another claim petition which was completely denied by the judge. The claimant had alleged he suffered low back and knee injuries from a specific work incident. He did not report any knee injury until six weeks post injury. The employer had accommodated the claimant’s work restrictions. Eventually, he was discharged for making threats to the employer’s representatives. He then filed a claim alleging his knee injury and the surgery he had for his knee within six months were related to the initial injury. This was rejected by the judge. It had been established he initially did not report any type of knee injury from the work incident to his employer. In addition, medical evidence established his previous knee complaints and symptoms. He was also actively involved in coaching his son’s wrestling and baseball teams. Medical evidence from the defendant showed that the right-knee condition was not related to the initial work injury. Therefore, the claimant’s claim petition was completely denied even though he had an accepted low-back injury.

*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.}