Superior Court denies New Jersey contractor's appeal

By Nicholas Malfitano | Jul 27, 2015

The Superior Court Of Pennsylvania  

HARRISBURG – On Thursday, the Superior Court of Pennsylvania affirmed the judgment of the Philadelphia County Court of Common Pleas, denying an appeal made by a Ventnor, N.J., contractor who felt he was entitled to more compensation than the $100,000 he was granted last fall in a legal malpractice case.

Brought before Senior Judge William H. Platt, Judge Judith Ference Olson and Judge Anne E. Lazarus, Lazarus authored the opinion released July 22 denying Gerald Cohen consideration for a greater amount in compensation, pursuant to a high-low agreement between Cohen and Michael G. Dryden and Willig, Williams & Davidson.

Cohen initially filed suit in February 2012, in connection with an injury he sustained in the course of his work approximately 10 years ago.

Cohen was an employee of the St. Mary Medical Center and was injured on July 10, 2005, while transporting a patient. For four months following his injury, Cohen received treatment at the Triad, a medical care facility available only to St. Mary’s employees.

In November 2005, Cohen began occupational therapy with Chester Ganczarz, an occupational therapist and fellow employee of St. Mary. On March 2, 2006, Cohen suffered injuries to his neck and shoulder, allegedly as a result of therapy provided by Ganczarz.

The following month, Cohen hired Michael G. Dryden and his law firm, Willig, Williams & Davidson, to represent him in a dual-capacity Workers’ Compensation claim, covering both the initial July 2005 injury and the March 2006 treatment-related injury.

Through an agreement reached with St. Mary in April 2007, Cohen received Workers’ Compensation benefits for both injuries. A compromise and release of all injuries and claims towards St. Mary on this matter was approved by a Workers’ Compensation judge in 2008.

Concurrently, Cohen, represented by different counsel, had also filed a medical malpractice claim against St. Mary and Ganczarz for the second injury in March 2006, but subsequent to the release approval in 2008, both defendants were granted summary judgment in that separate case.

The Superior Court then considered Cohen’s claims that Dryden and his law firm committed legal malpractice in the Workers’ Compensation matter that prevented him from recovering on his medical malpractice claim against St. Mary and Ganczarz.

Prior to trial, the parties agreed to stipulated damages, through a high/low agreement, as follows: if the Court found against Dryden on the issues presented, Cohen would receive damages of $500,000; if the court found in favor of Dryden on either of the issues, it would enter a finding in favor of Cohen for $100,000.

On Sept. 4, 2014, Judge Jacqueline F. Allen of the Philadelphia County Court of Common Pleas ruled Cohen could not have recovered in his medical malpractice claim under the dual-capacity doctrine and awarded Cohen $100,000 pursuant to the high/low agreement. Cohen’s post-trial motions were denied and he filed a timely notice of appeal to the Superior Court.

On appeal, Cohen argued St. Mary acted as both his employer and medical provider, and the applicable dual-capacity doctrine should have garnered him the $500,000 in the previously reached high-low agreement. Cohen also felt he was not acting in the scope of his employment when the March 2006 injury occurred, but the Superior Court disagreed.

“In Pennsylvania, the general rule has long been that injuries sustained during the course of treatment for work-related injuries are also classified as work-related and are compensable under and subject to the immunity from suit afforded to employers under the Workers Compensation Act,” Lazarus said.

Lazarus stated though Pennsylvania has discussed the dual-capacity doctrine, it has never been explicitly adopted.

“Cohen suffered a compensable work injury during the course of his employment by St. Mary. The only treatment sought by Cohen was for the work-related injury, which was not present before the initial accident,” Lazarus said. “But for the work-related injury, Cohen would not have sought treatment from Ganczarz, and would not have suffered the second, treatment-related injury. Accordingly, the second injury is derivative of the initial work-related injury and the exclusivity provision of the WCA is a bar to legal action by Cohen.”

The appellant was represented by Elliott B. Platt, in Philadelphia.

The appellees were represented by Eugene J. Maginnis, also in Philadelphia.

The Superior Court of Pennsylvania case 3128 EDA 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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