PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
7/1/2023 – 7/31/2023
IMPAIRMENT RATING EVALUATIONS
Terry Brown v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 26, 2023
Issue:
Whether retroactive application of Act 111 is unconstitutional?
Background:
In 2011, Claimant suffered an injury during the course and scope of her employment with Employer when she fell and hit her right arm on a step. For this injury, she received weekly TTD benefits. In 2020, there was an Impairment Rating Evaluation (IRE) pursuant to Act 111 of 2018. The Claimant had a whole person impairment rating of 30%, based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition, Second Printing (AMA Guides). Employer filed a Modification Petition and the WCJ granted Employer’s Petition and modified benefits to partial as of the IRE date. The Board affirmed the WCJ’s decision.
Holding:
The constitutionality of Act 111 was upheld by the Court in Pennsylvania AFL-CIO, finding that it was not an unconstitutional delegation of legislative authority. Specifically, this Court held the amendment to the Act providing for IREs did not violate the state constitutional restriction on delegation of the General Assembly’s legislative authority. Further, it is clear that the General Assembly intended for the 104-week and credit weeks provisions of Act 111 to be given retroactive effect.
Affirmed.
Nancy Mastrome v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 11, 2023
Issue:
Whether the WCJ correctly reinstated Claimant’s TTD status effective the date she filed her reinstatement petition, or whether her TTD status should have been reinstated as of the date of the earlier IRE modification?
Background:
In 2001, Claimant was injured in a motor vehicle accident during the course and scope of her employment as a bicycle patrol police officer with the City of Philadelphia (Employer). Employer issued an Amended Notice of Compensation Payable (NCP). In 2012, Claimant underwent an IRE pursuant to former Section 306(a.2) of the Workers’ Compensation Act which resulted in a total whole-person impairment rating of 5% (which met the less than 50% requisite). Employer filed a petition for modification of benefits based upon the IRE. Thereafter, the parties stipulated to a modification of Claimant’s benefit status from TTD to TPD effective May 21, 2012. By a Decision and Order circulated on October 24, 2012, the WCJ approved the Stipulation reducing Claimant’s benefits to TPD status. On July 31, 2019, Claimant filed a reinstatement petition seeking a return to TTD status effective July 31, 2019 based upon the Supreme Court’s decision in Protz II. On February 2, 2021, the WCJ granted Claimant’s reinstatement petition, reinstating Claimant’s TTD status effective July 31, 2019, the date the reinstatement petition was filed, pursuant to Whitfield. Claimant then appealed to the Board, arguing that her reinstatement of benefits should have been effective as of the May 21, 2012 modification date. The Board affirmed.
Holding:
The Court has repeatedly declined to give full retroactive effect to Protz in circumstances, such as this, where the claimant was not actively litigating the change in her disability status at the time Protz was decided. Consistent with this precedent, Claimant’s disability status was properly reinstated to TTD as of the date she filed her reinstatement petition.
Affirmed.
MODIFICATION BASED ON LABOR MARKET SURVEY/EARNING POWER ASSESSMENT
City of Pittsburgh v. Rosemary Borelli (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 20, 2023
Issue:
Whether the WCJ evaluated Employer’s Modification Petition using the proper standards?
Background:
Claimant was working for Employer as a police officer when she sustained an injury on June 28, 2016. Employer acknowledged the injury as a thoracic and cervical strain. Subsequently, Employer issued Heart and Lung Act benefits, in which it expanded the injury description to include a strain of the left shoulder. After a brief period of receiving Heart and Lung benefits, Claimant began receiving temporary total disability benefits. Employer filed a Modification Petition based on an Earning Power Assessment (EPA) which found Claimant to be physically able and qualified to perform several jobs. The parties also submitted several Review Petitions. The WCJ concluded that Claimant had restored her earning power with such a job in the amount of $420.00 per week. The WCJ declined to consider the other positions found by the Labor Market Survey/EPA, which the WCJ found to be too speculative. The WCJ granted the Modification Petition, and reduced Claimant’s benefits by $420.00. The Board affirmed.
Holding:
The WCJ credited expert opinion testimony that jobs within Claimant’s physical and vocational capabilities were available in Claimant’s local area, and modified Claimant’s benefits accordingly. The WCJ is not required to determine whether Claimant followed through in good faith on the referrals, which is a question that became largely obsolete following the passage of Act 57. Under Section 306(b)(2), it was not even necessary in the first place for Employer to investigate whether Claimant had applied for the positions found by the LMS/EPA. When an employer seeks to establish a claimant’s earning power through expert testimony on jobs open and available to the claimant, the employer must still convince the factfinder that positions within the injured worker’s residual capacity are actually available. The WCJ has exclusive province over questions of evidentiary weight and is free to accept or reject the testimony of any witness, in whole or in part. Thus, the determination of whether all or any of the positions described were “actually available” lies firmly within the WCJ’s discretion. The WCJ had no duty to evaluate Employer’s Modification Petition pursuant to the Kachinski standard, but only in accordance with Section 306(b)(2) of the Act. Furthermore, the WCJ was within his discretion to accept or reject the LMS/EPA testimony that job positions other than the security officer position were open and available to Claimant. The WCJ’s explanation of that determination was adequate for the purpose of issuing a reasoned decision pursuant to Section 422(a) of the Act. Accordingly, we affirm the Board’s order.
Affirmed.
OCCUPATIONAL DISEASE – LIABLE EMPLOYER
City of Chester v. John Gresch and Nether Providence Township (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decision: July 6, 2023
Issue:
Whether the Board erred in its application of the “liable employer” doctrine, because the Township was the more recent employer to expose Claimant to a group 1 carcinogen.
Background:
Claimant worked for the City as a firefighter for approximately 37 years, from May 28, 1977, to April 1, 2014, eventually achieving the rank of battalion chief. Following his retirement, Claimant began to work as a fire marshal for Nether Providence Township (Township) and has worked for the Township since September 10, 2015. In November 2017, Claimant was diagnosed with kidney cancer. Claimant filed a claim petition against the City, alleging that he had developed kidney cancer after exposure to carcinogens while working as a firefighter for the City. The City denied liability and filed a petition for joinder against the Township. The WCJ granted Claimant’s petition against the City, and denied the City’s petition to join the Township, concluding that the Township was not liable for Claimant’s cancer. The City appealed to the Board, which affirmed.
Holding:
Section 301(c)(2) of the Act, 77 P.S. §411(2), states that where a claimant works for more than one employer for a period of more than one year, the liable employer is the employer which last exposed a claimant to the occupational hazard. However, if a claimant’s exposure occurred while employed by multiple employers, only one employer will be liable. Further, if the actual exposure to the hazards of an occupational disease, at these multiple employers, is less than one year, then the liable employer will be the employer that exposed the claimant to those hazards for the longest period. Claimant was employed by the City and the Township during the 300 weeks prior to his diagnosis of kidney cancer. Although Claimant worked for the Township more recently, for two years immediately preceding his diagnosis, Claimant credibly testified that he responded to six or seven fires in total while employed by the Township. In contrast, Claimant responded to 12 fires per month while employed by the City. It was therefore obvious that Claimant’s actual exposure to the relevant group 1 carcinogens was far greater while employed by the City than the Township. Thus, the City was liable for the payment of Claimant’s workers’ compensation benefits.
Affirmed.
PENALTY PETITION
Robert J. Egizio v. Consol Pennsylvania Coal Company, (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion.
Decided: July 27, 2023
Issue:
Whether the WCJ’s denial of Claimant’s Fourth Penalty Petition was an error of law?
Background:
Claimant was working for Employer as a miner when he sustained an injury to his left knee in 2014. Employer covered Claimant’s medical expenses but did not issue a Notice of Compensation Payable (NCP) or any other Workers’ Compensation Bureau (Bureau) documents. In 2015, a physician determined that Claimant was fully recovered from his knee injury and released him back to full-duty work. Claimant continued to receive his regular wages and work his usual number of hours following his work injury. The WCJ accepted the testimony that Claimant had fully recovered from his 2016 injury. The WCJ suspended Claimant’s benefits for the 2014 injury and terminated benefits for the 2016 injury. The WCJ denied all three Penalty Petitions, concluding that Employer did not violate the Act. The Board regarded the WCJ’s suspension of Claimant’s benefits for the 2014 injury as legal error and modified the decision to reflect that Employer was entitled to a termination of benefits for both the 2014 and 2016 injuries. On appeal to the Court, the Court agreed with Claimant that the WCJ’s decision to suspend Claimant’s benefits for the 2014 injury was supported by the evidence and that the Board erred in terminating Claimant’s benefits and reinstated the WCJ’s suspension. The Court agreed that partial disability benefits were not due. There was no appeal. While the above petitions were on appeal before the Board, Claimant filed a fourth Penalty Petition in 2020. Claimant alleged that Employer violated the Act by failing to pay partial disability benefits following his 2014 injury. The WCJ concluded that Employer had not committed a violation of the Act. The Board affirmed, concluding that Employer cannot be penalized for failing to pay wage loss benefits for a non-existent wage loss.
Holding:
The WCJ’s denial of this fourth Penalty Petition does not contradict the WCJ’s previous finding that Claimant worked with a wage loss after the 2014 injury. Claimant was not entitled to partial disability benefits when that decision was issued. While it is true that the WCJ’s 2019 decision found Claimant to have worked with a wage loss, the decision was inconsistent on that question. The WCJ’s decision therefore created a discrepancy, which the Board resolved by holding that the finding of a wage loss was in error. The Court agreed with the Board that Claimant’s wage loss was “nonexistent”, and Claimant did not seek to appeal from that earlier decision, which is now final. The WCJ correctly concluded that, in the light of this Court’s and the Board’s prior decisions, it is impossible to find that there was a violation of the Act, let alone to award the payment of any benefits or penalties.
Affirmed.
YELLOW FRIEGHT MOTION
Alvin Hollis v. C&R Laundry Services LLC (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: July 31, 2023
Issues:
Whether the WCJ erred by determining that the left rotator cuff pathology injury was not well-pled in his Claim Petition? Whether the WCJ erred by finding that Claimant fully recovered from his work injuries?
Background:
Claimant filed a Claim Petition against C&R Laundry Services, LLC (Employer) alleging that he sustained a work-related injury while in the course of his employment as a truck driver. Claimant alleged that he sustained a left rotator cuff pathology/cervical left side radiculopathy, cervical, thoracic, lumbar sprain/strain. Claimant’s counsel made a Yellow Freight motion to have all facts alleged in the Claim Petition deemed admitted because of Employer’s failure to file a timely answer. The WCJ granted the Yellow Freight motion and ordered that Temporary Total Disability (TTD) benefits be paid for the period of August 6, 2019, through October 16, 2019. The WCJ found Claimant not credible with respect to the continuation of ongoing symptoms after his IMEs with Employer’s medical experts. The WCJ admitted all well-pled facts in the Claim Petition and recognized that Claimant was entitled to a rebuttable presumption of the continuation of his alleged ongoing disability. The WCJ determined that Claimant’s “left rotator cuff pathology” was not a well-pled fact, as it was not a medical diagnosis, and, thus, was not legally sufficient or definitive of Claimant’s alleged shoulder injury. Claimant needed to present competent medical evidence to sustain his burden of proof about his alleged shoulder injury. The WCJ determined that Employer rebutted Claimant’s allegation of a left rotator cuff pathology and left rotator cuff tendinopathy from the work injury and established Claimant’s experience of a shoulder strain and sprain and recovery. Claimant filed a timely appeal with the Board, which affirmed.
Holding:
Although the body part of the injury is well-pled, the injury itself is not. Claimant did not define the “pathology” or provide a medical diagnosis in his Claim Petition. Claimant merely described his condition as “pathology,” which “deals with all aspects of disease, but with special reference to the essential nature, the causes, and development of abnormal conditions, as well as the structural and functional changes that result from the disease processes.” Whether it is a disease or injury, “left rotator cuff pathology” can be any number of conditions, such as tendinopathy or bursitis, tear or sprain, which are different medical diagnoses. Thus, the WCJ did not err in concluding that “left rotator cuff pathology” was not a well-pled allegation. Because “left rotator cuff pathology” was not well pled, Claimant was not entitled to a presumption of ongoing disability related to this injury under Yellow Freight. The burden remained with Claimant to prove the existence of the shoulder injury or disease, the work-related cause, and ongoing disability. Employer could rebut any allegations of a left shoulder injury.
Affirmed.
JUDICIAL DISCRETION
Jeffrey Rice v. Spirac USA, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 3, 2023
Issue:
Whether the WCJ’s decision was based on competent evidence, capriciously disregarded evidence, and was manifestly unreasonable?
Background:
Claimant is a Regional Sales Manager for Employer. Claimant allegedly contracted necrotizing fasciitis by an exposure to Escherichia coli (E. coli) bacteria while on a one-day overnight business trip to Little Rock, Arkansas. The WCJ denied the Claim Petition, concluding that Claimant failed to meet his burden of persuasion, particularly as to the timing of the bacterial exposure. The Board affirmed.
Holding:
A medical expert’s opinion is not rendered incompetent unless it is based solely on inaccurate information. Contrary to Claimant’s assertions, employer’s expert’s testimony and report were both internally consistent, consistent with each other, and fully supported by the medical records reviewed. Concerning whether the expert disregarded, or did not know, particular facts, that goes to the weight given the expert’s testimony, not its competency. If the testimony is sufficiently definite and unequivocal to render it admissible, it is competent. The WCJ noted that the relevant infection, necrotizing fasciitis, with sepsis, requiring amputation of the right leg above the knee, was not in dispute. The issue was whether the infection was initiated by an E.coli exposure during the one-day trip to Arkansas. No incident is asserted, and, while environmental factors have been presented, the determinative causal factor is medical in nature. The WCJ is the ultimate factfinder and is empowered to determine witness credibility and evidentiary weight. The WCJ, therefore, is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses. The WCJ made it clear that he did not believe Claimant contracted E. coli in Arkansas because he believed the medical testimony that, based on the medical evidence, Claimant contracted E. coli before his trip to Arkansas. Substantial evidence supported the WCJ’s findings. Accordingly, the WCJ’s credibility rationale was supported by the record as a whole. The WCJ’s decision was not manifestly unreasonable. A capricious disregard only occurs when the WCJ deliberately ignores relevant, competent evidence. Where there is substantial evidence to support a WCJ’s factual findings, and those findings in turn support the conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon capricious disregard.
Affirmed.
Tradesmen International, LLC, et al. v. Demetrius Brown (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Opinion
Decided: July 14, 2023
Issues:
Whether Claimant’s medical rendered a legally sufficient opinion that Claimant’s work-related injury was the cause of his disability and incorrectly shifted the burden of proof on the issue of causation to Employer?
Background:
Claimant worked as a plumber for a Contractor, who subcontracted him to Employer. While working, Claimant tripped and fell when walking up some steps at a job site and was injured. He continued to work for the rest of his shift that day. He did not report the incident when it happened because he did not think he had suffered a major injury. He continued to work the following week with pain. About 5 days later, he reported to the emergency room (ER) at Abbington Hospital because his right hand was swollen. He had developed an infectious tenosynovitis in the tendons of his fourth and fifth fingers and underwent surgery. Claimant then reported his injury to Employer’s foreman. Employer issued a Notice of Compensation Payable (NCP) on March 31, 2020. On April 23, 2020, claimant submitted a Claim Petition seeking full disability benefits from February 21, 2020, and ongoing. The WCJ granted the Claim Petition in part. The WCJ ordered Employer to pay Temporary Total Disability (TTD) benefits from February 21, 2020, until June 26, 2020, which is the date the WCJ found claimant was fully recovered from his work injury. The Board affirmed. Employer appealed.
Holding:
The WCJ carefully considered and weighed the expert medical testimony on causation, and the Board did not err when it affirmed the WCJ in this regard. The Board did not err in accepting claimant’s evidence. Questions of credibility, conflicting medical evidence, and evidentiary weight fall within the WCJ’s authority, and the WCJ is free to accept the testimony of any witness, including medical witnesses, in whole or in part. When faced with conflicting evidence, the WCJ must adequately explain the reasons for rejecting or discrediting competent evidence. The WCJ discussed why he accepted some testimony and rejected other testimony. He carefully parsed out portions of testimony he found credible, and those he did not. The WCJ did not incorrectly shift the burden of proof on causation to Employer. While the WCJ found that Employer’s expert did not provide a viable opinion on causation, the WCJ also acknowledged Employer did not carry this burden. Thus, the WCJ concluded Brown met his burden of proof regarding causation and did not improperly shift the burden of proof to Employer.
Affirmed.
UPMC Pinnacle Hospitals v. Renee Orlandi (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 21, 2023
Issues:
Whether the Board erred by affirming the WCJ in expanding the description of Claimant’s work injury because the causation testimony was equivocal and therefore incompetent? Whether the Board erred by failing to rule on its objections? Whether the Board erred by interpreting the WCJ’s order as intending to award Claimant wage loss benefits from the date of the surgery?
Background:
Claimant sustained a work-related injury. Employer issued a medical-only Notice of Temporary Compensation Payable (NTCP) accepting a left shoulder sprain. Employer filed a termination petition asserting that Claimant fully recovered from her injuries per an independent medical examination (IME). Claimant filed a review petition seeking to expand the description of injury. The WCJ granted Claimant’s review petition and denied Employer’s termination. The Board modified the description of injury to be consistent with claimant’s expert’s diagnoses. The Board noted that even if the WCJ erred in accepting claimant’s expert’s testimony, it would be harmless error since Claimant’s testimony relating her condition to her work duties was also found credible and an exacerbation of her cervical issues was an obvious injury. Finally, the Board noted that even though the WCJ had not expressly awarded Claimant wage loss benefits in his decision, the order’s language indicated that the WCJ clearly intended to do so as of when she went out of work for her surgery.
Holding:
Claimant’s Doctor’s Causation Testimony: Medical testimony is unequivocal if a medical expert testifies, after providing foundation for the testimony, that, in his professional opinion, he believes or thinks a fact exists. However, there are no magic words that a doctor must recite to establish causation. Based on the evidence as a whole, Claimant’s medical causation testimony was competent. He consistently related her condition to her work duties and did not express uncertainty that her condition was related to her work duties. Once he knew of Claimant’s work duties, he did not opine that any of the other possible causes were equally or more likely to be the cause than her work duties. To the extent that the causation testimony relied on a belief that Claimant had no prior left shoulder issues, a doctor’s assumptions, even if based on incomplete information, will not invalidate their testimony if their conclusions are supported in the record and therefore borne out by other evidence. There is an accepted injury and Claimant’s review petition burden was to establish the greater extent of her injury and its work-relatedness, not to establish a work-related injury in the first place.
Employer’s Objections to Claimant’s Causation Testimony: The WCJ did not include Employer’s objections in the exhibit list at the beginning of his decision and did not address them in the decision. Any error in this regard by the WCJ was harmless because the testimony was ultimately deemed credible and persuasive. This causation testimony was competent, supported by the record, and found credible and persuasive by the WCJ, who would have had discretion to deny Employer’s objections had they been properly preserved. Employer’s objections are therefore both waived and meritless.
Claimant’s Eligibility for Wage Loss Benefits: The WCJ’s decision did not expressly award Claimant wage loss benefits. However, the WCJ credited the testimony that Claimant’s surgery, which ultimately took her out of work, was due to her accepted work-related injury. The correction of the “error” here did not require a change in the WCJ’s factual or legal analysis or additional factual findings or conclusions of law. There was no need to litigate wages in this matter. Employer was on notice that Claimant would be undergoing surgery attributed to the work injury and would be out of work for a period of time to heal. The record as a whole supports that determination as well as the reasonable inference that Claimant’s ensuing three months of disability were also due to her injury.
Affirmed.
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
07/01/2023 – 07/31/2023
LIABILITY OF A LICENSED ENTITY
Morona S. Construction, LLC v. The Diamond Agency, LLC et. al.
Superior Court of New Jersey, Appellate Division
No. A-3918-21; 2023 WL 4540402
Decided: 07/14/2023
Background:
Plaintiff’s complaints alleged that it had procured liability and workers’ compensation insurance from Lambrus Ciuia for several years. Ciuia was employed by Diamond and was believed to be a licensed insurance agent. Plaintiff stated that Ciuia would renew policy coverages. On September 24, 2020, two of plaintiff’s employees were injured and when plaintiff sought coverage from Travelers in defense of its employees’ workers’ compensation petitions, Travelers denied the request, claiming that the last policy issued to plaintiff expired in April 2019.
Plaintiff’s complaint sought declaratory judgment against Travelers to compel defense of the workers’ compensation petitions, and alleged Diamond and Ciuia were negligent in failing to procure the appropriate insurance. Travelers’ answer asserted a counterclaim that plaintiff did not pay the required deposit premium for the policy renewal making the policy expire on its own terms in April 2019.
Defendants’ answer asserted that the Affidavit of Merits Statute (AMS) was an affirmative defense and they moved to dismiss the complaint based on plaintiff’s failure to serve an affidavit of merit (AOM). Plaintiff filed a cross-motion alleging discovery violations and seeking to amend the complaint. This amended complaint was identical to the original except it included an additional count for breach of contract.
The judge sent counsel a letter a few days after oral argument directing them to take limited discovery on the licensure status of Diamond. Defendants supplied the certification of Henry Pareja, the owner of Diamond, which established Diamond’s licensure status. Pareja was deposed, and three days later, plaintiff moved to file a different amended complaint naming Pareja as a defendant. The judge heard oral argument on defendant’s motion to dismiss and plaintiff’s cross-motion to amend the complaint. He issued a decision on May 2, 2022, dismissing plaintiff’s complaint for failure to file an AOM, and denying plaintiff’s motion to amend.
Plaintiff moved for reconsideration and Travelers filed a brief supporting the motion with respect to the dismissal of the complaint against Ciuia. The judge issued a June 28, 2022 order partially granting the motion for reconsideration by reinstating the complaint only to the liability of Ciuia. This court granted plaintiff leave to appeal from the May order. Plaintiff argues the judge erred in dismissing the complaint against Diamond because it sought to hold Diamond vicariously liable under a theory of respondeat superior, and therefore an AOM was not required.
Holding:
The court agrees that plaintiff’s initial complaint can be read as asserting vicarious liability against Diamond under respondeat superior, and that no AOM was required because of the common knowledge exception to the AMS. The court also concludes that the judge mistakenly exercised his discretion in denying plaintiff’s motion to amend.
This court held that in granting defendant’s motion to dismiss, the judge concluded that plaintiff plead the case as a direct negligence claim and not as a vicarious liability claim. However, the court believes that the judge’s interpretation of the complaint was too conservative, and he misapplied the standard for a motion to dismiss. The court holds that in reviewing the complaint’s factual allegations it adequately sets forth a cause of action against Diamond under a respondeat superior theory of liability.
This court then does an analysis of the Haviland case recently decided by the state Supreme Court, which considered whether a plaintiff has to submit an AOM in support of a various liability claim against a licensed entity, based on the alleged negligent conduct of an employee who is not a licensed entity under the AOM statute. The court in Haviland concluded that the plaintiff’s injuries were alleged to have occurred from the negligence of a person who was not a licensed person under the AMS, stating the AOM statute does not require the submission of an AOM to maintain a vicarious liability claim against a licensed healthcare facility based on the conduct of its non-licensed employees.
This court stated that Haviland did not control here, as radiologists like the defendant in Haviland are not licensed persons under the AMS, but insurance producers like Ciuia are. The court held that because plaintiff’s claim against Ciuia was for negligence by a licensed person in his profession, the AMS mandated that the plaintiff serve an AOM even though its claim against Diamond was based on the theory of respondeat superior, unless an exception applies, as it does in this matter.
This court held that the common knowledge exception to the AMS applies only when expert testimony is not needed to prove a professional defendant’s negligence. Therefore, at this stage, a lay person was capable of understanding plaintiff’s allegations that defendants furnished a certificate of insurance demonstrating renewed coverage for the calendar year as they had for several years prior to 2020 but the coverages were not in place, without expert testimony. This court reversed the order dismissing plaintiff’s claim for failure to comply with the AMS.
This court then addressed plaintiff’s amended complaint. The original judge denied plaintiff’s motion to file an amended complaint that added a count against Diamond and Pareja for negligent supervision of Ciuia and a count for breach of contract because it would be futile given the failure to file an AOM. This court disagrees and reverses.
The judge denied the motion to amend based on his conclusion that an AOM was necessary to support the negligence claim and amending the complaint was futile because an AOM was not filed in a timely manner, however, since this court concluded that the negligence claim did not need an AOM, the denial of the amendment relied on an impermissible basis and a mistaken understanding of the applicable law. Therefore, the court reversed the order denying plaintiff’s motion to amend the complaint without addressing the merits of the new claims.
Finally, this court ordered that if, upon remand, plaintiff files the proposed amendment asserting a direct claim for negligent hiring, training, or supervision against Pareja and Diamond, the court shall conduct a Ferriera conference to decide whether plaintiff is required to file and serve an AOM to support the cause of action.
Reversed and Remanded.