State News

Ever since the decision in Dever v. New Jersey Mfrs. Ins. Co., No. A-3102-11T2, (App. Div. Oct. 23, 2013), plaintiffs’ counsel have been arguing that respondents do not have a lien for medical bills paid in workers’ compensation from a work-related car accident where the plaintiff had PIP coverage.  But civil courts have not been following Dever, and workers’ compensation carriers won another big decision on this issue in Talmadge v. Burn, No. A-3160-14T1 (App. Div. June 22, 2016).

Tina Talmadge was injured while working for Child and Family Services, Inc.  She was driving her own car when her vehicle was struck by a car driven by Ms. Burn.  Plaintiff underwent a cervical fusion procedure, and The Hartford Insurance Company (workers’ compensation carrier) paid $127,000 in medical and indemnity benefits.  The Hartford sought reimbursement of two thirds or approximately $84,500 and intervened in the civil case from which plaintiff recovered $250,000 as damages.   Plaintiff conceded that she owed two thirds of the indemnity benefits but argued that The Hartford had no right to a lien on medical benefits because as a no-fault insured, she herself could not recover medical benefits from the other no-fault insured Burns.  She contended that if she could not make a recovery of medicals in her law suit, The Hartford could not either as its rights are derivative of her own rights.

Both the trial judge and the Appellate Division rejected plaintiff’s arguments. The Appellate Division initially observed, “When an employee suffers an automobile accident while in the course of employment, workers’ compensation is the primary source of satisfaction of the employee’s medical bills, as provided by the collateral source rule, N.J.S.A. 39:6A-6, which ‘relieves the PIP carrier from the obligation of making payments for expenses incurred by the insured which are covered by workers’ compensation benefits.'” 

The Court went on to discuss how the PIP statute interacts with the workers’ compensation statute.  “In instances where an employee, as a result of a work related automobile accident injury, also has a claim for recovery against a third party, the Legislature overcame the possible ‘inequity of double recovery’ by including section 40, which requires an injured employee to refund paid workers’ compensation benefits once recovery is obtained from the tortfeasor, thereby avoiding duplication of the workers’ compensation benefits by the tort recovery.”

The Appellate Division concluded, “The employer’s workers’ compensation carrier’s lien, which includes medical expenses paid, must be satisfied from plaintiff’s $250,000 recovery from Burn.”  It did not matter that plaintiff could not recover the medicals from the other party in her law suit.  The Court made clear that this was still a double recovery.  In this practitioner’s opinion, the Appellate Division got it right in Talmadge.Dever is an outlier case because the workers’ compensation carrier was not even a party to that decision.  The dispute in that case involved the UIM carrier, and the comments in Dever regarding the workers’ compensation lien were what is known as “dicta,” the expression of an opinion that went beyond the facts before the court.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

 Each year thousands of Granite State workers are injured on the job. Many of these injuries are minor and the worker loses no time from work and requires little to no medical attention. A  small portion of the reported injuries are more severe, and workers miss time from work and require extensive medical treatment to return to their pre-injury status. The New Hampshire Department of Labor releases a biennial report that contains information regarding the number and types of injuries, the industries in which the injuries occur, and the number of cases litigated before the Department every year.[1]

The most recently published biennial report found that the majority of injured workers sustain minor ailments that do not result in lost time from work. In fiscal year 2013, there were 38,998 reported workplace injuries and 644,000 non-agricultural employees in New Hampshire, resulting in an incident rate of 6.1%. Lost time from injuries occurred in 3,530 cases: less than 10% of all injuries.

The causes of injuries in New Hampshire are diverse. Greater than 10 percent of the injuries in fiscal year 2013 were the result of an object hitting an employee (4,101), while nearly 19 percent were the result of an employee lifting an object (7,359). The most common injury type involved a muscle pull or strain which accounted for 13,926 of the 38,998 injuries, or approximately 36% of all injuries. Bruises, cuts, or puncture wounds accounted for another 37% of the reported injuries (14,591).

The biennial report also provides a breakdown of the industries that account for the majority of workplace injuries. While nearly a third of reported injuries (13,156) were not classified by industry, the remaining two thirds (25,842) were. Health Care and Social Assistance resulted in the most reported injuries, tallying 5,013 out of 25,842, or approximately 19% of classified injuries. Motor Vehicle and Parts Dealers came next with approximately 12% (3,086) of all reported injuries. Accommodation and Food Services, Educational Services, and Metal Manufacturing separately accounted for approximately 7% of all reported injuries, with 1,893, 1,755, and 2,022 injuries reported respectively. These five industries account for more than half of all classified injuries in the state.

Looking at these numbers, it is clear that New Hampshire is a safe state in which to work, with only slightly more than 6% of employees injured each year and less than 10% of all injuries resulting in lost time from work. It should come as no surprise that a large percentage of all injuries result from employment in Health Care and Social Assistance or Motor Vehicle and Parts Dealers since these industries employ thousands of people in New Hampshire and require substantial amounts of physical work.

Of the thousands of incidents that result in injuries to Granite State workers, only approximately 5% result in litigation before the New Hampshire Department of Labor. When litigating a case, injured employees and insurance carriers or employers are usually represented by counsel.

[1] http://www.nh.gov/labor/documents/biennial-report-2012-2013.pdf

 Earlier this year the New Hampshire Supreme Court published its decision in the matter of Appeal of Raymond Cover. The result of the decision is that part-time employees injured at work have a right to reinstatement under New Hampshire law (RSA 281-A:25-a).

The Court dealt with the validity of New Hampshire Administrative Rule, Lab 504.05 (b) (3) and whether part-time employees are entitled to reinstatement under the Workers’ Compensation Act. The statute, RSA 281-A:25-a, states “[a]n employee of an employer who employs 5 or more employees, who has sustained an injury, shall be reinstated by the employer to the employee’s former position of employment upon request for such reinstatement… .”  At the time of this litigation, Lab 504.05 (b) (3) stated, “[a]n employer shall not be obligated to provide the former position to… a part time employee as defined by the employer’s personnel policy.” The Court found that “the rule impermissibly modifies the statute and is therefore invalid.” The Court reiterated its longstanding edict that the Workers’ Compensation Law should be read “liberally to give the broadest reasonable effect to its remedial purpose and resolve all reasonable doubts in favor of the injured worker.” Since RSA 281-A:25-a does not specifically exclude part-time employees from the right to reinstatement, while Lab 504.05 (b) (3) does, the Court stated that “the rule cannot be characterized as a rule that merely fills in the details to effectuate the purpose of the statute.” 

Acknowledging the likelihood of the Court deciding in this fashion, the Department of Labor had already began the process of altering Lab 504.05 (b) (3) earlier this year. The rule now omits the language quoted above and provides for reinstatement to any full time or part time employee (though temporary employees are still exempt and some other qualifications apply).

The Court also went into some detail in dismissing a jurisdictional argument. The employer argued that the only way to challenge the validity of the Department of Labor rule was through a Declaratory Judgment action brought in Superior Court with the Department of Labor as an opposing party.

Raymond Cover had challenged the validity of Lab 504.05(6)(3) before the Department of Labor Hearing Officer initially and the Compensation Appeals Board on appeal.  RSA 541-A:24 provides that parties “may” challenge a Department of Labor administrative rule at the Superior Court via a Declaratory Judgment action, including the Department of Labor as a party. The employer argued “that the word ‘may’… is meant to express a right … to challenge a rule’s validity [and] if that right is exercised, then the action must be filed” in Superior Court and include as a party the agency that adopted the rule. The Court disagreed. The Court focused on the definition of the word “may” to mean “permissive, not mandatory” and cited three prior cases in which the Court had reviewed the validity of agency rules under similar circumstances. The Court found that it could exercise subject matter jurisdiction over Mr. Cover’s appeal. 

Employers should know that all full-time and part-time employees are likely eligible for reinstatement to their job within 18 months of a compensable workplace injury. Some qualifications still apply, and your labor and employment or workers’ compensation attorney can likely provide helpful counsel on this issue.

 In Appeal of Northridge Environmental, LLC, the New Hampshire Supreme Court held that home care services provided to the injured worker by his non-medically trained spouse qualify as a compensable medical expense under New Hampshire’s workers’ compensation law.

In Northridge, the claimant sustained serious injuries at work.  After his release from the hospital he required constant care that included cleaning of his wounds and assistance with moving, bathing, and dressing, all of which was provided by his spouse. The claimant sought payment for his spouse’s services from his workers’ compensation carrier, under the theory that but for his spouse’s care he would have needed to hire a medical professional to perform the home care.

The New Hampshire Department of Labor initially denied reimbursement for the spouse’s home care services and the Compensation Appeals Board (CAB) upheld the decision. After an initial appeal to the New Hampshire Supreme Court, the case was remanded to the CAB with instructions to revisit the issue and determine whether, and to what extent, the services provided by the claimant’s wife were reimbursable. On remand, the CAB determined that the claimant was entitled to reimbursement for the services his spouse provided, noting that RSA 281-A:2, XII-b of the workers’ compensation statute “does not exclude a spouse as a home health care provider and should include a spouse as a home health care provider because the workers[‘] compensation statute is a remedial statute and a spouse is not excluded as a provider.” Appeal of Northridge, Case No.: 2014-0776, March 22, 2016, 2. The Court affirmed the decision of the CAB and stated that “the CAB did not err when it decided that the petitioner was entitled to reimbursement for his wife’s services.” Id., 5.

The workers’ compensation carrier also had objected to the CAB’s finding concerning the amount of reimbursement to be provided to the claimant for the services rendered by his wife. After the initial appeal and remand to the CAB, the CAB determined that the claimant should be reimbursed at the rate of $15 an hour, 12 hours a day for the care provided by his wife. The carrier argued there were no time cards or other records available, and that the CAB should not have determined that “twelve hours per day, every day” is “an appropriate reimbursement rate in this instance.” Id., 6. The Court held that it could not “conclude that the CAB erred when it determined that reimbursement for 12 hours per day was reasonable.” Id., 6.

The Court also considered whether the claimant’s attorney was entitled to attorney’s fees. The Court determined the claimant’s attorney had “prevailed” under the definition in RSA 281-A:44, I as the attorney had obtained a remand from the Supreme Court and obtained relief at the remand CAB hearing. Although it “did not award benefits to the petitioner in the earlier appeal, [its] prior decision was an essential step in the process that eventually led to the CAB awarding reimbursement.” Id., 9. As such, the Court determined that the petitioner was entitled to reasonable attorney’s fees and costs incurred in the earlier appeal to the Court.

 This ruling potentially exposes employers, carriers, and third party administrators to liability for reimbursement for care provided by the spouses and other non-medically trained individuals who provide care to an injured worker. In Northridge, the carrier had offered to pay for a licensed healthcare provider to perform the in-home services which were prescribed.  The claimant declined the offer. If the injured employee requires medically necessary homecare and foregoes a visiting nurse or other medical professional, this case supports the argument that the statute does not preclude reimbursement for a spouse or other non-medically trained individual who provides that care. Furthermore, nothing in the decision appears to limit this holding to a spouse. 

The Court’s second consideration – that the claimant’s attorney was due reasonable fees and costs for an earlier appeal when prevailing at the remand hearing – also exposes employers, carriers, and third party administrators to potential liability for payment of attorney’s fees. Claimants’ attorneys will undoubtedly request their fees be paid by carriers for their time before the Supreme Court when they obtain a remand from the Supreme Court that results in a favorable decision before the CAB.

 Bill 1084 went into effect on July 1, 2016.　 This legislation abrogates the holding inWheeler, and sets forth the applicable law as it relates to aggregate wages for an employee when calculating an employee’s average weekly wage.　 While we suggest reading the entirety of Bill 1084 and, of course, calling us for any questions you may have, keep the following in mind:

To be prudent, you should ask an injured employee if they are employed in any other position and ask that they provide wage information to support the same and note your file accordingly.

 If you have any questions relating to calculating the comp rate, what needs to be included, or general questions on South Dakota law, please contact Charlie Larson atcalarson@boycelaw.com or 605-336-2424. 　

The maximum rate changed on July 1, 2016 to $762 a week.  The minimum work comp rate has increased to $381 a week. 

If you have any questions on work comp rates or general questions, please feel free to contact Charlie Larson atcalarson@boycelaw.com or 605-336-2424.   

Beginning July 1, 2016, the maximum worker’s compensation payable was raised to $832 per week and the minimum was raised to $229 per week. This change was based on the Commissioner of Labor’s determination that the State’s average weekly wage was $831.88 in the calendar year 2015, and the change is effective for any injury occurring on or after July 1, 2016.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

As you know, Kids’ Chance is a scholarship program for children whose parents have been killed

or seriously injured at work. Donations are tax deductible and we welcome contributions. More

important is that we are looking for eligible scholarship recipients. If you know of an eligible child,

please contact Kids’ Chance in care of Jane Stone, who is on the founding board, at

jstone@slsaustin.com, or call her at 512-343-1300. A big kick-off event is planned for the Fall, too,

and if you or your company are interested in being a sponsor (with appropriate attribution), please

let us know. The deadline for sponsorships is fast approaching.

The US National Toxicology Program, a federal interagency group under the NIH, is said to have

linked radiation from cell phone exposure to cancer in rats in a new study. The researchers exposed

rodents for two years (apparently, a rodents’s life span) to radiation levels designed to roughly match

what a human with heavy cell phone use or exposure might experience. The study results are a long

way from determining if the results of the experiments would be the same if the subjects were

humans. We wonder if the danger to humans will be more or less than the dangers of using a cell

phone while driving (or walking). In any event, if cell phone usage is a work requirement for a

particular injured worker who develops cancer, or gets hit by a bus while distracted by his phone,

there may be some workers’ compensation claims filed.

As many of you know, a broad-based conference was recently held in Dallas by invitation only to

discuss common national issues in workers’ compensation in light of a perceived trend to “opt-out”

plans and the specter of nationalization or doing away with a workers’ compensation system altogether. SLS partner Jane Stone was invited to the Summit as a representative of the National

Workers’ Compensation Defense Network. You may have been following the progress of the

Summit on Bob Wilson’s website. The purpose was to open a dialogue as to what is right in

worker’s compensation programs, and what can be improved. The discussions were lively to say

the least, given that the attendees were so diverse in their views and experiences. The conversations

lasted for 2 days among regulators, judges, insurance professionals, physicians, academics, union

representatives, lawyers (from all sides), and injured workers (both satisfied with the system and

unhappy with it). After the initial conference, the attendees responded to a survey to determine the

priority of topics that were most important. The results of the survey will be published sometime

after July 4th.