Weber Gallagher Simpson Stapleton Fires & Newby LLP

February 22, 2011 : Zachary M. Rubinich and Christopher J. Rubinate Obtain Favorable Judge Decision Denying Claim Petition and Penalty Petition

Zachary M. Rubinich, a partner in the firm's Philadelphia office recently obtained a favorable Decision and Order on February 14, 2011 from a Workers' Compensation Judge in Berks County, Pennsylvania which denied and dismissed a Claim Petition and Penalty Petition. The Judge accepted employer's legal arguments and determined that claimant failed to sustain his burden of proof on both the Claim Petition and the Penalty Petition.

This was a significant Decision since the employer chose to defend against claimant's allegations that he suffered a compensable, disabling exposure to hydrofluoric acid while working at a refinery in Philadelphia. The Judge rejected claimant's testimony about his ongoing alleged neurologic and dermatologic conditions as being work related. The Judge accepted the testimony of employer's medical expert Dr. Richard Bennett over the testimony of claimant's medical expert Dr. Bruce Grossinger. The Judge rejected Dr. Grossinger's medical opinion that claimant had suffered "significant central nervous system effects of the hydrofluoric acid inhalation exposure which caused headaches, dizziness, aggravation of asthma, hair loss and eczema." Instead, the Judge accepted testimony from employer's medical expert, Dr. Bennett, who noted the lack of objective evidence in the medical records and diagnostic studies of any hydrofluoric acid exposure. Moreover, the Judge accepted Dr. Bennett's conclusions that claimant had pre-existing asthma and dermatologic issues. The Judge denied in its entirety the Claim Petition. The Judge also denied in its entirety the Penalty Petition alleging that employer had violated the Pennsylvania Workers' Compensation Act by failing to properly investigate and accept this injury claim as compensable.

This favorable Decision resulted in an ongoing annual indemnity exposure cost-savings to the employer of $36,000. Claimant's request for payment of medical bills, hospital bills and diagnostic study bills for neurologic, asthma and dermatologic issues was also denied by the Judge. The Judge then denied claimant's counsel's litigation cost request of $4,700 and denied a Quantum Meruit attorney fees request of $5,275. The Judge found that employer's contest of both the Claim Petition and Penalty Petition was reasonable based upon the conflicting medical evidence in the case.

Mr. Rubinich was assisted throughout this litigation by Christopher J. Rubinate, Esquire. Mr. Rubinate is an Associate in Weber Gallagher's Philadelphia office.