As regular readers of The Compendium well know, Stone, Loughlin & Swanson is a Founding Sponsor and long-time supporter of Kids’ Chance of Texas, an organization whose mission is to create and support scholarship programs to provide educational opportunities for children in Texas who have had a parent catastrophically or fatally injured while in the course and scope of his or her employment. As participants in the Texas Workers’ Compensation system, we are particularly aware of the devastating toll such an injury takes on a family and, especially, the children. 

Please help us to give the kids a chance by becoming a participant or sponsor and joining us at Topgolf Austin on June 28 from 5:30 – 8:30 p.m. for a workers’ comp networking and FUN-draising good time! For more information and to register to join us in knocking the stuffing out of those little dimply balls, click here.

Copyright 2022, Stone Loughlin & Swanson, LLP

NJ Workers’ Comp Legislative Update

The New Jersey Assembly recently introduced legislation, A2886, which would provide employment protections for paid first responders diagnosed with work-related post-traumatic stress disorder.  The bill states as follows: An employer shall not discharge, harass, or otherwise discriminate or retaliate or threaten to discharge, harass, or otherwise discriminate or retaliate against an employee with respect to the compensation, terms, conditions, duties, or privileges of employment on the basis that the employee took or requested any leave related to a qualifying diagnosis of post-traumatic stress disorder.  Following a period of leave related to a qualifying diagnosis of post-traumatic stress disorder, an employer shall reinstate an employee whose fitness to return to work has been documented by a licensed physician or licensed mental health professional to the position and duties held by the employee prior to the leave.

The bill makes clear that the PTSD condition must arise from work by stating as follows:

b.   A diagnosis of post-traumatic stress disorder is qualified under subsection a. of this section if:

(1)        the diagnosis is made by a licensed physician or licensed mental health professional; and

(2)        as determined by the licensed physician or licensed mental health professional, the post-traumatic stress disorder arose:

(a)        as a direct result of the employee experiencing or witnessing a traumatic event during and within the scope of the performance of regular or assigned duties of the employee; or

(b)        due to vicarious trauma experienced by the employee as a direct result of the performance of regular or assigned duties of the employee.

A2886 would apply only to paid first responders, which of course includes law enforcement officers, firefighters, emergency and paramedic personnel, but also extends to 9-1-1 dispatchers, who may only “witness” trauma by telephone. 

The first question is why did the Legislature focus solely on medical leaves for PTSD?  What about medical leaves for spinal surgery, which are equally common, if not more common? Legislation by diagnosis can become an endless trend.  Moreover, federal law under the Family and Medical Leave Act already provides job protection for covered leaves.

This bill calls to mind A2617 which was signed into law on September 24, 2021.  That bill provided: “Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement (MMI) and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential functions of the position.”

The problem with A2886 and A2617 is that neither bill is needed since New Jersey law already forbids such discrimination.  New Jersey already has powerful anti-discrimination laws, namely the New Jersey Law Against Discrimination and N.J.S.A. 34:15:39.1. Both of these laws protect employees from discrimination. Section 39.1 is contained within the New Jersey Workers’ Compensation Act and protects employees who file workers’ compensation claims from wrongful discharge or discrimination related to the making of a workers’ compensation claim. 

The question that legislators must answer is what holes have they suddenly found that need to be filled in the expansive New Jersey Law Against Discrimination?   

For more information on the progress of this proposed legislation, contact the undersigned at jcottell@capehart.com.

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Jennifer A Cottell, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Ms. Cottell concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters.  If you have any questions or would like more information, please contact Ms. Cottell at 856.914.2087 or by e‑mail at jcottell@capehart.com.

Practical Advice In New Jersey Workers’ Compensation

The general rule is that an injured worker is entitled to TTD for the time frame that the authorized treating doctor placed the employee out of work.

Pursuant to Monaco v. Albert Maund, Inc., 17 N.J.  Super. 425 (App. Div.), 21 N.J. Super. 443 (App. Div. 1952), generally, TTD continues until the employee is able to resume work or until the employee “is as far restored as the permanent character of the injuries will permit” [placed at MMI], whichever happens first. This means that TTD can cease in either of the following situations: a. The employee is placed back to work and authorized treatment is ongoing and continuing; or b. The employee is placed at MMI from treatment, even if the employee is discharged with permanent work restrictions (irrespective of whether the restrictions can be accommodated).

In addition to the above rule, there are some tricky situations where TTD benefits may be stopped for other reasons.  Below are hypothetical situations regarding TTD, and how we would recommend handling each scenario.

Scenario 1: Bob works for a large retailer and is injured on February 2, 2022. Bob is receiving authorized treatment and is initially not placed out of work. On March 14, 2022, Bob is caught stealing from the register at work, as well as stealing $4,000 worth of merchandise from the electronics department. The authorized doctor places Bob out of work as of March 17, 2022; it is anticipated he will be out of work for a few months. After an investigation into the theft, Bob is terminated for cause on March 28, 2022. The employer pays TTD from March 17, 2022 through the date of his termination, March 28, 2022. Bob alleges that he is owed TTD from March 17, 2022 onward, as he was placed out of work by the authorized doctor on March 17, 2022 and has not yet been returned to work.

Our position is that Bob is owed TTD only for the date range of March 17, 2022 through March 28, 2022, the date of the termination.

There are quite a few cases dealing with this issue. In all of the cases, the main point comes down to this: The purpose of TTD is to compensate for actual lost wages. As such, in a situation like this, our position would be that Bob is not owed TTD after March 28, 2022.

The most important case on this scenario is Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.), certif. denied, 188 N.J. 492 (2006), where the Court stated that Cunningham must “prove that he actually lost income…because of his disability”. The Court noted that TTD is wage replacement for “actual lost wages”, and not “theoretical or fictitious wage loss”.

The Court in Cunningham was guided by the holding of Outland v.  Monmouth-Ocean Educ. Serv. Comm’n, 154 N.J. 531 (1998). In Outland, the Court held that in order for a teacher who teaches during the school year to be entitled to TTD during the summer months, she must prove that she would have had summer employment. The case of Gioia v. Herr Foods, Inc., No. A-0667-10T4 (App. Div. October 11, 2011) also deals with an employee terminated for misconduct (in that case, violation of the employer’s drug policy), and the holding of Gioia makes it clear that TTD is for actual lost wages, not theoretical lost wages. In a case where an employee is terminated for cause, at the point of his termination, he no longer has wages. If there is no actual wage loss, TTD is not owed.

Scenario 2: Nate has been placed out of work by the authorized doctor and is not working. TTD is being issued. The authorized doctor, on May 15, 2022, recommends that Nate undergo a shoulder surgery. Nate receives all surgical clearance and on May 22, 2022, the authorized doctor schedules the surgery to occur on June 5, 2022. However, Nate has a pre-planned vacation June 4- June 18. Then he is moving residences during the end of June, and then will have family visiting during July as well as various other summer activities, so he wants to push the surgery back until at least August 15. Nate asserts that he is entitled to TTD during the time frame of May 22, 2022 through August 15, 2022.

Our position is that Nate is not entitled to TTD during the time frame of May 22, 2022 through August 15, 2022.

Nate is refusing treatment, for reasons that are not related to any health or medical issues. An employee not complying with the authorized doctor’s treatment plan, and treatment schedule, based on a personal reason or personal preference, is not entitled to TTD benefits.

Our position is that if petitioner is not actively treating, or is missing appointments, he is not entitled to TTD under N.J.S.A. 34:15-19, which states that after an injury, an employee must submit himself for physical examination within this state, as often as may be reasonably requested, and, “the refusal of the employee to submit to such examination shall deprive him of the right to compensation during the continuance of such refusal”. Since Nate is failing to, or refusing to, comply with treatment and is not cooperating with authorized treatment, he is not entitled to TTD during his non-cooperation.

Scenario 3: Ronald, an electrician, was injured on January 15, 2022. The authorized doctor places Ronald out of work February 10 through March 1, 2022. On March 2, 2022, Ronald is released to work light duty; the doctor noted that full duty was anticipated on or around April 2, 2022. The employer can accommodate light duty work and can pay Ronald his usual salary in his temporary light duty position; Ronald was offered the light duty position on March 2, 2022. Ronald refuses the light duty position, as he does not want to work “desk duty”; Ronald maintains he is owed TTD from March 2, 2022 through April 2, 2022 (or whenever he is in fact returned to work full duty).

Our position is that Ronald is not entitled to TTD as of March 2, 2022, the date that light duty was offered, and declined.

We recommend relying on Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 (App. Div. 1986) in a situation like his. If the employee is offered a light duty job, and the employee refuses the light duty job, the employer can terminate TTD upon the refusal. For this reason, it is a good idea to put the light duty offer in writing, dated, and reference the date that the authorized doctor placed the employee back to work light duty, and the date light duty could be accommodated, particularly as under Williams v. Topps Appliance City, 239 N.J. Super. 528 (App. Div. 1989), “the burden is on the employer to show that light work was offered to [the employee] and that it was refused”.

The above scenarios re-emphasize two important things to keep in mind with respect to issuance of, and entitlement to, TTD benefits: (1) TTD is to compensate for actual lost wages; and (2) An employee’s refusal to comply with offered light duty and/or the authorized doctor’s recommended course of treatment may be cause for TTD to be terminated.

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Often cases are referred to this insurance defense attorney where the policy was cancelled prior to the alleged date of loss. The claimant-petitioner has retained an attorney and has filed a Claim Petition in the Division of Workers’ Compensation. The petitioner’s counsel has reviewed the New Jersey Compensation Rating and Inspection Bureau website and found the policy which would have been in effect at the time of the date of loss and has named that carrier. The carrier retains counsel and seeks to deny the claim for lack of coverage.  The question is whether there is sufficient evidence to prevail on a Motion to Strike Carrier.

Prior to filing a Motion to Strike Carrier, there are certain steps and documents which should be reviewed between counsel and the carrier regarding the effectiveness of the cancellation. In New Jersey, there is a strong public policy favoring uninterrupted workers’ compensation coverage for all employees. As a result, an insurance carrier must strictly comply with all statutory and regulatory mandates regarding any cancellation of a policy.

It is therefore beneficial to review N.J.S.A. 34:15-81, Cancellation of Contract. The Statute lays out three individual steps which must be followed in order for cancellation to be effective. Section 81 states that no policy for workers’ compensation coverage is deemed cancelled until the following three criteria are met:

• (a) At least ten days’ notice in writing of the election to terminate such contract is given by registered mail by the party seeking cancellation thereof to the other party thereto; and
• (b) Until like notice shall be filed in the office of the commissioner of banking and insurance, together with a certified statement that the notice provided for by paragraph “a” of this section has been given; and
• (c) Until ten days have elapsed after the filing required by paragraph “b” of this section has been made.

While the foregoing three steps appear to be straightforward, there are various ways in which a potential issue may arise and therefore result in a finding of improper cancellation. The New Jersey Supreme Court has held that there needs to be strict compliance with the Statute in order for cancellation to be effective. Sroczynski v. Milek, 197 N.J. 36 (2008).

Consider an example of a policy issued to an employer for a policy period beginning on February 1, 2019 through February 1, 2020. During the policy period, the employer fails to make payments on the policy leading to a cancellation. The carrier sends a notice to the employer on July 1, 2019 stating the following:

“We hereby notify you that the policy identified above will be cancelled effective 12:01 a.m. July 30, 2019 in accordance with the cancellation condition of the policy and that all liability of the Company under such policy will cease at that time. Premium adjustment will be made to the date of cancellation and statement rendered. The reason for this action is: Nonpayment of Premium.”

With respect to the first step in cancelling a policy, a notice needs to be generated by the carrier and sent to the employer with at least 10 days’ notice of the date of the cancellation. So far, our cancellation example appears to comply with subsection (a) of the Statute as the notice is sent on July 1, 2019 and gives more than 10 days’ notice.

Subsection (a) of the Statute also states that this notice must be sent by “registered mail.” The Statute does not define “registered mail.” In practice, the carrier should send the notice to the employer by certified mail. The carrier should retain any and all transmittal information with the USPS regarding sending of the notice of cancellation as these documentary proofs are vital in the carrier’s Motion to Strike Carrier for Lack of Coverage.

The sending of the notice of the cancellation to the employer is not the end of the journey for the carrier. The carrier must also submit a “like notice” to the office of the Commissioner of Banking and Insurance. The Statute does not require “exact same notice,” but rather states “like notice.” The Commissioner of Banking and Insurance in New Jersey has designated the Compensation Rating and Inspection Bureau (CRIB) as the entity to receive the like notice.

CRIB requires that the like notice be submitted electronically and has provided a reference form to be used by carriers for the submittal of like notice.

You can download the above form and note that at the bottom of the submittal there is a certification for which the carrier must provide a signatory. The certification is required in the like notice submittal to CRIB. Subsection (b) of the Statute has two clauses which must be adhered to in order for the cancellation to be effective. The first is that the like notice is filed with CRIB, the second is a certified statement must be provided by the carrier that the employer was provided notice in accordance with subsection (a), i.e., that the employer was provided notice of the election to terminate via registered (‘certified’) mail with at least 10 days’ notice.  These steps are required.

Finally, the Statute requires one last step for the policy to be effectively cancelled. Subsection (c) of the Statute requires that at least 10 days have elapsed since the filing of the notice with CRIB prior to the cancellation being effective.

Let us return to our example policy which is being cancelled by our hypothetical carrier. The policy period is for the year February 1, 2019 through February 1, 2020 and, due to nonpayment of premium, the policy is being cancelled. The notice of cancellation is sent to the employer via registered mail on July 1, 2019 stating that the policy will be cancelled effective July 30, 2019.

The carrier should at that time submit the like notice to CRIB that the policy is being cancelled with the effective date of cancellation being reported as July 30, 2019.

What then occurs if the like notice to CRIB is not submitted until August 15, 2019 and an injury occurs to an employee at the company on August 5, 2019 and the company did not obtain replacement coverage? In this practitioner’s experience, any issue with the filing of the like notice creates strong arguments by petitioner’s counsel that the policy was not effectively cancelled. The carrier will try to argue that the policy was effectively cancelled July 30, 2019 per the notice to the employer and that it is incumbent upon the employer to obtain proper coverage.

The New Jersey Workers’ Compensation Act provides certain timelines and a procedure which must be strictly complied with in order for the policy to be cancelled. In this example, the carrier did not provide the like notice to CRIB until after the date of the loss. As a result, the carrier cannot show compliance with subsection (b) and subsection (c) of the Statute.

Let us move the date of loss then to August 20, 2019 and the like notice still is submitted to CRIB on August 15, 2019. The carrier can now show that the loss occurred after the date of cancellation and after the filing of the like notice with CRIB. However, again, this fact scenario will likely result in an improper cancellation and a covered loss. Subsection (c) of the Statute requires that at least 10 days have passed since the filing of the notice with CRIB. In this example, only 5 days have expired. As a result, the petitioner will have a strong argument that the policy was still in effect at the time of the loss despite the policy being cancelled as of July 30, 2019.

While the foregoing examples appear to result in simple solutions, Section 81 of the Statute often results in lengthy litigation regarding proper proofs of cancellation. As a result, the carrier should retain detailed documentary proofs and evidence of each step of the cancellation in order to properly seek to be stricken for lack of coverage from a pending claim.   Readers with questions on cancellation can reach the undersigned at knagy@capehart.com.

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Keith E. Nagy, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Nagy concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters. Should you have any questions or would like more information, please contact Mr. Nagy at 856.840.4928 or by e‑mail at knagy@capehart.com.

The concept of legal presumptions in workers’ compensation is not new in New Jersey.  The first presumption legislation in New Jersey was passed in 1964 concerning volunteer firefighters who contract respiratory disease in certain circumstances. The second presumption legislation was passed in 1988 in regarding to firefighters with cardiovascular or cerebrovascular injuries or death in responding to a law enforcement, public safety or medical emergency.  More recently the 2019 Thomas P. Canzanella Twenty First Century First Responders Protection Act and the 2020 Essential Employees Law have generated a great deal of discussion among workers’ compensation professionals, carriers and employers on what legal presumptions in workers’ compensation really mean.

In virtually all workers’ compensation claims (excepting presumption claims), the petitioner has the burden of proof on the issue of compensability as well as on the issue permanency, but in cases involving a legal presumption, the burden shifts to the employer to disprove compensability.  In a COVID claim petition involving a presumption, the petitioner must prove that he or she meets the definition of an Essential Employee and that he or she contracted COVID.  At that point the respondent must offer its proofs and attempt to rebut the claim by showing more likely than not that the virus was not contracted at work.  Hence the notion that the presumption is “rebuttable.” 

It is helpful to study the precise language of the New Jersey Essential Employees Law with respect to rebuttable presumptions:  The law says:  “This prima facie presumption may be rebutted by a preponderance of the evidence showing that the worker was not exposed to the disease while working in the place of employment other than the individual’s own residence.”  The last six words simply mean that employees will not receive a presumption for exposure to COVID while working at home.

Some state COVID-19 presumption laws spell out the proofs which legislatively rebut the COVID presumption.  For example, the Illinois COVID-19 Essential Employees Law provides specific examples of rebuttal evidence:

1. The employee was working from his or her home, on leave from his or her employment or some combination thereof, for a period of 14 or more consecutive days immediately prior to the employee’s injury, occupational disease or period of incapacity resulting from exposure to COVID-19, or:
2. The employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability, industry-specific sanitation, social distancing, and health and safety practices by the Centers of Disease Control and Prevention or Illinois Department of Public Health; or
3. The employee was exposed to COVID-19 by an alternate source.

New Jersey’s COVID presumption law does not address what sort of evidence may rebut a COVID-19 presumption claim unlike the Illinois law cited directly above.  Professor Michael Duff from the University of Wyoming College of Law provides an interesting state-by-state survey on the differences in COVID presumption statutes in his essay entitled “Workers’ Compensation Emerging Issues Analysis.”  He points out that the problem with presumption language in states like New Jersey is that judges of compensation have no legislative guidance on types of evidence which statutorily rebut a presumption.

Among the possible kinds of evidence which may rebut a New Jersey claim for COVID-19 are the following:

1. The gap between petitioner’s last day of work and the contraction of COVID is too great according to current medical guidelines;
2. The employee engaged in certain non-work activities that provided a much greater risk of COVID-19, such as travel to other states with high rates of COVID exposure or attendance at large gatherings where a COVID-19 breakout occurred;
3. The employee was around family members or friends who were diagnosed with COVID before the employee was diagnosed with COVID;
4. The employee had a second job with a more likely exposure to COVID-19;
5. The employee had small children whose schools closed due to COVID-19 outbreaks and whose children became symptomatic with possible COVID.

These are just some examples of evidence that may, in a given case, rebut the legal presumption.  One important question that Professor Duff raises is this:  what happens to the presumption if the employer does offer strong rebuttal evidence?  Does the presumption then disappear with the result that the burden then shifts back to the employee to prove how he or she was exposed at work? The New Jersey statute is silent on this question.  The practical answer is that any good petitioner’s attorney who has evidence demonstrating a work source of COVID-19 would then offer such proofs in the face of strong rebuttal evidence. 

Trials will eventually occur in the Division of Workers’ Compensation in COVID-19 cases given that thousands of claim petitions have already been filed.  Judges will deal with the employer’s proofs on rebuttal of presumptions on a case-by-case basis.  One difference between a COVID-19 case and other workers’ compensation cases has to do with medical records.  In the ordinary workers’ compensation case the focus is only on the claimant’s medical condition.  But in a COVID-19 case, in order to disprove a claim by the more likely than not standard, the employer will often have to argue that someone in close contact to the petitioner was COVID-19 positive. That medical evidence may be pivotal.  It may prove challenging in some cases to prove that a non-party to the case to whom the petitioner may have been exposed to COVID was in fact COVID-19 positive.    

No discussion on COVID-19 litigation should end without mention of one crucial point.  Even if the injured worker is an Essential Employee and compensability is found in favor of the employee, the burden of proof on permanent partial disability always rests on the employee.  This means all the same proofs apply as in other compensation claims, namely proof by objective medical evidence of a restriction in the body as well as a significant impact on the employee’s work or non-work life activities.  As COVID-19 continues to spread in the United States, one of the observations physicians and scientists have made is that many Americans have contracted COVID a second time or even a third time. How does second non-work-COVID impact litigation and negotiation? Well, consider a case involving a worker who injures his back lifting at work but then has a subsequent non-work back injury before being examined by an expert. That second accident almost always lowers the value of the claim, and in some cases may erode all the value depending on the severity of the second accident.   What about someone who has COVID-19 arising from work and then contracts COVID a second time from a home exposure prior to medical evaluation?  How does a claimant with second COVID from a home exposure separate the current complaints from the impact of the earlier work COVID?  This phenomenon is already happening in COVID cases in New Jersey and in other states.  Employers must always ask for all treating records up to the present in any COVID litigation for this very reason.

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John H. Geaney, Esq., is a Shareholder and Co-Chair 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.

For those readers who are interested in learning about current issues in workers’ compensation, I highly recommend the 2021 LexisNexis book entitled “Workers Compensation Emerging Issues Analysis.”  I was asked to review this book and found it to be chock full of cutting-edge articles written for attorneys, employers, physicians, adjusters, carriers and third party administrators.

The book consists of a collection of well-written articles by prominent authors from around the nation in the field of workers’ compensation law. A large portion of the book is devoted to COVID-19 pandemic issues ranging from how to analyze compensability of COVID-19 occupational disease claims, what presumptions really mean, and the impact of the pandemic on the traditional going-and-coming rule.  Among the most enlightening articles was one written by Michael C. Duff, Professor of Law at the University of  Wyoming.  The author discusses how presumptions actually work in the law, comparing the specific language in presumption laws from various states, and focusing on how employers may attempt to rebut the statutory presumptions. 

In addition to the analysis on pandemic issues, there are also many other articles of interest to practitioners, including the impact of medical marijuana and opioid laws, understanding the AMA Guidelines in workers’ compensation, (used in most states but not in New Jersey), ride-sharing and the independent contractor defense, as well as a summary of state laws dealing with weekly limits on total disability in workers’ compensation.

One of the most impressive sections contained in this book is the state-by-state legislative and case law analysis.  For each state there is a section called “trends analysis” and a section that reviews cases of interest to practitioners and employers since 2020. I liked reading the developments in each state because it makes it easy to spot and track legal trends in workers’ compensation.  For attorneys, claims managers, supervisors and employers with business in several states, the book is absolutely essential. 

“Workers’ Compensation Emerging Issues Analysis” was co-edited by Mr. Thomas Robinson, Esquire and the National Workers’ Compensation Defense Network (NWCDN).  Mr. Robinson is the esteemed co-author of Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis).  The NWCDN is a nationwide network of independent law firms dedicated to promoting excellence in the practice of workers’ compensation law.  NWCDN runs some of the best seminars available to member practitioners and employers at various venues around the country.As an avid reader of all things workers’ compensation, I enjoyed the fact that there was so much original thought in this book. The articles raise many questions that employers and practitioners will be trying to answer in the coming years. Frankly, anyone involved with workers’ compensation will benefit by reading this book. 

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John H. Geaney, Esq., is a Shareholder and Co-Chair 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.

Written by: Julie Hooten, Tracey Jones, and Shivani Shah

In a recent decision issued by the North Carolina Court of Appeals, Judge Chris Dillion remanded Blackwell v. N.C. Dep’t of Pub. Instruction back to the Full Commission where a claimant’s appeal to convert her weekly benefits to a single, lump-sum award was denied.

Background of the Case

The claimant was a former high school teacher who was injured on the job breaking up a fight.  She was diagnosed with multiple physical and mental injuries and the Full Commission found her to be permanently and totally disabled and awarded weekly benefits. The claimant later requested her award to be converted into a single, lump-sum payment, as per by N.C. Gen. Stat. §97-44 (2018).  Both the Deputy Commissioner and the Full Commission denied her request and she appealed. The sole issue on appeal was whether the Commission erred in concluding that a lump-sum award under Section 97-44 is never allowed where the sum of future installments is uncertain. The Commission relied on the “Uncommuted Value Clause” of N.C. Gen. Stat. §97-44 and reasoned that it prohibits any lump-sum award which would exceed the sum of the future installments that are being replaced. The Commission denied the claimant’s request on the basis that a lump sum award was not allowed in any situation where the number of future payments was uncertain.  Under the original Opinion and Award, the claimant was eligible to receive weekly benefits for the rest of her life.  As a result, the number of future installments the claimant was entitled to receive was unknowable because her weekly compensation could be terminated upon her death or a showing that she is capable of returning to suitable employment.  The Commission thus concluded that a lump-sum award could exceed the amount she would have otherwise received had she continued to receive her benefits in weekly installments.

In its decision, the Court of Appeals noted that it has held that awards for permanent disability may be paid in weekly installments or in one lump sum.  The Court acknowledged that the Commission has the authority, in unusual cases, to award a lump-sum even where the sum of future benefits is not certain, if there is competent evidence tending to show how long the claimant was reasonably likely to receive future benefits.  Competent evidence would include a mortality table to determine life expectancy.  The Court also indicated that the Commission should discount the sum of expected future benefits when there is competent evidence to set an appropriate discount rate.

The Court’s decision was, essentially, a roadmap for the Commission.  First, the Commission should determine whether the claimant has shown her situation to be an “unusual case.”  Second, the Commission should consider any competent evidence, such as the mortality table in N.C. Gen. Stat. §8-46, to determine the number of installments that the claimant is expected to receive under her current award. Lastly, in calculating the award, the Commission may discount the expected future installments to a present value.

Implications for Defendants

The Court of Appeals established steps for the Commission to determine whether a lump-sum award is appropriate.  The conclusion by the Court of Appeals that a lump sum payment for ongoing weekly installments may be an option is concerning for defendants in workers’ compensation cases.  In permanent and total cases, it would behoove the Plaintiff’s Bar to request a lump sum payment in every case in order to collect a fee and ensure their client receives the most benefits he or she can get.  However, the Court of Appeals did note that the lump sum award should be ”in the best interest of the employee” and that phrase should be “construed narrowly.”  The Court specifically said that trying to reduce credit card debt would not be a reason to grant such an award.

It will be interesting to see how the Commission defines “unusual” in this case.  If it is read narrowly, defendants may not have as much to worry about and the implications of this case may be minimal, but if the Commission defines “unusual” broadly, defendants will surely see the ramifications of this case for years to come. We will continue to monitor this case to determine its full impact.

If you have questions about the recent court decision, or other aspects of a workers’ compensation claim in North Carolina, reach out to a member of our Workers’ Compensation team.

Written by: Matthew Flammia

In North Carolina, an injured employee may recover damages from both the workers’ compensation carrier as well as a third-party tortfeasor. In accepted claims, where a third-party causes the compensable injury, the workers’ compensation carrier is provided an automatic lien against any third-party recovery that the injured employee receives arising out of the compensable incident. North Carolina General Statute § 97-10.2 even creates a right for the workers’ compensation carrier to seek subrogation against the third party independently.

According to the statute, the injured employee has the exclusive right to file a suit against the third-party for twelve (12) months. Thereafter, the workers’ compensation carrier has the right to file a subrogation claim until sixty (60) days before the expiration of the statute of limitations. Finally, the injured employee and workers’ compensation carrier can always work together and jointly pursue the third-party claim.

Practice Tip for Insurers

If there has been an accepted workers’ compensation claim caused by a third-party tortfeasor, insurance carriers may have subrogation rights, and there is a chance that an insurer could recover some of the money paid towards the claim. If the injury is caused by third-party negligence, immediately place all parties on notice of the insurer’s subrogation rights and begin to investigate the claim on the best way to recover money paid towards the claim.

If you have questions about subrogation rights or other aspects of a workers’ compensation claim in North Carolina, reach out to Matthew Flammia or a member of our Workers’ Compensation team.

By:  Jeannette Herrera (Partner - Sacramento Office)

The California Supreme Court declined to review the appellate court decision holding that the derivative injury doctrine does not preclude a lawsuit alleging an employer business negligently exposed a worker to COVID-19 that is alleged to have resulted in a subsequent death of a family member. As such, Plaintiffs may proceed to litigate the issues in civil court. 

Earlier, the Court of Appeals reasoned that the workers' compensation exclusive remedy provisions did not apply because the derivative injury doctrine does not apply to the subject claim. They discussed that the spouse may have had a claim regardless of the employee being injured. 

This case represents a blow to employers seeking protection under the workers compensation exclusive remedy rule.  However,  the event Kuciemba decision in another district found the opposite. There's is no final decision on the merits of the underlying claim here yet,  but we will be sure to keep you updated. 

Learn more here:  https://highlights.hannabrophy.com/post/102hn3n/ca-supreme-court-declines-to-hear-sees-candies-case