Some defenses, like the going-and-coming rule, get all the attention but there are other less well known defenses, like lack of timely notice, which can be very powerful as a defense in workers’ compensation.  One of the reasons that the notice defense is often ignored in New Jersey is its peculiar wording.  It has three stages to it.  N.J.S.A. 34:15-17 states initially that if notice of a work injury is not given to the employer within 14 days, then no compensation shall be due until such notice is given.  The employer cannot win in this stage, only delay payment until notice is provided.

The second stage says that if notice to the employer is given within 30 days, then the employee’s claim cannot be defeated unless the employer can show it was prejudiced by the delay. Finally, the statute provides that if notice is given within 90 days, AND, if the employee can show that the failure to provide notice was due to mistake, inadvertence, ignorance of fact or law, or fraud, then compensation shall be allowed,  unless the employer can prove that it was prejudiced by the failure to provide prompt notice. An employee automatically loses if the first notice occurs after 90 days.

Many practitioners tell clients that an employee only has to give notice within 90 days, but that is not entirely correct.  The employee must give notice within 30 days, and if the employer can show that lack of notice prejudiced the employer, the employer wins the case!  This practitioner calls it a 30-day rule.

Notice issues come into play more often than one would imagine even though most large employers have training sessions on the importance of providing notice of injury with 24 or 48 hours.  The statute does make clear that if the employer has actual knowledge of the injury, then the requirement of prompt notice is not applicable.  But a surprisingly high percentage of workers’ compensation claims involve situations where an employee has not reported a work injury for over 30 days.

Why is the notice defense important? For one thing, there are many unwitnessed accidents and it makes very little sense that an employee who is injured seriously enough to require treatment or file a claim would wait 30 days to report the injury.  If the injury were serious enough, there would usually be medical treatment shortly after the incident, and if medical treatment did occur, there should be statements to the physician about a work-related injury. When an employee waits weeks to report an alleged work injury, red flags should be flying.

Three defenses come to mind when an employee claims to have suffered a serious injury but does not report the injury promptly. First is the notice defense as outlined above, and the employer should argue that the delay in reporting prejudiced the employer.  Second is the defense that no accident ever took place, and efforts should be made to investigate the allegations to see if the accident can be disproved. Third is more of a medical defense, namely that if something did happen 30 days ago but was never reported within 30 days, then that event was almost certainly insignificant. Respondent should engage a medical expert to make this argument.  Bear in mind that most of us have had those days where we slip or fall without suffering any real injury beyond embarrassment.

Think about this:  if you were ever seriously hurt at work, why would you wait a month or even a week to report the injury?  What would be the advantage in NOT reporting it right away? It may make sense to wait a couple of days to see if the body recoveres, but 30 days?  That hardly seems plausible.  If the employee admits to treating outside workers’ compensation close in time to the alleged injury, the employer must obtain those records (often they are family doctor records) to see what history the employee provided to the unauthorized physician. Frequently there is no mention of any work injury at all. On the other hand, if the employee has not treated within 30 days, how significant could the event have been?

Winning notice defenses at 30 days comes down to proving that the employer was prejudiced by the delay.  Consider this:  if you rode a bike to the town library and then found an hour later that the bike was stolen, what are the chances that the police could help you if you waited 30 days to notify them? The fact of the matter is that people do report those kinds of incidents right away.  It’s common sense, but common sense often does not prevail in workers’ compensation.  If a claim is reported 30 days late, supervisors and witnesses may not remember the details of events 30 days ago, store security tapes may have been erased or played over, and physical conditions that may have caused the alleged accident will have changed.   Employers are almost always prejudiced by reporting delays of 30 or more days.  These reporting delays make no sense when one considers that most employers train employees about prompt reporting and include this in their employee manuals.

The only conclusion for employers is that these kinds of cases should be denied, and lack of timely notice should be aggressively pursued with the argument that the failure to timely report the injury has indeed prejudiced the employer.

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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. 

                               Hartford Insurance Group v. Kamara et. al. 976 EDA 2016 (Pa. Super., 2017)

By Jeffrey D. Snyder, Esquire

The Supreme Court of Pennsylvania has accepted allocatur of the above captioned case, which considers whether an insurance carrier can independently pursue a third-party case “on behalf of” a claimant.

The Superior Court was faced with Preliminary Objections to Hartford’s Complaint, it being argued that Hartford did not have standing to file a Complaint because the Complaint was not verified by someone with personal knowledge, because the claimant had not assigned a cause of action to Hartford, and because the claimant was not a party to the lawsuit. 

As background, the claimant Chen was standing in a parking lot of a Thrifty Car Rental location when she was struck by a rental car operated by defendant Kamara.  The Complaint against Kamara et. al. averred that Chen was in the employ of Alliance Sourcing Inc., with Hartford  paying funds in both medical and wage loss benefits to Chen under a workers’ compensation policy maintained by Alliance Sourcing Inc. 

There were two counts of negligence in the Complaint. 

Responding to the Preliminary Objections, Hartford asserted that the Supreme Court of Pennsylvania’s holding inDomtar Paper (Liberty Mutual Insurance Co. as subrogee of Lawrence v. Domtar Paper Co. e. al., No. 19 WAP 2014 (Pa., 2015) denying standing to sue was inapplicable because inDomtar the suit was brought “as subrogee of” while in this case suit was brought “on behalf of Chunli Chen”.  It was further asserted that the verification to the Complaint was proper because the Hartford employee signing it had knowledge of the facts through her work on the claim.

The trial court dismissed Hartford’s Complaint with prejudice, in reliance on its interpretation of the law asserted as applicable by the defendants, notably that the case was controlled by the Supreme Court’s Opinion inDomtar Paper and because the trial court did not consider the Complaint properly verified.  The trial court further stated that it did not grant leave to amend the verification because Hartford had failed to assert a legally cognizable cause of action against the defendants, thus granting leave to attach a sufficient verification would have been futile.

On appeal to the Superior Court, Hartford raised two issues.  First, did the trial court misapplyDomtar given that Hartford had filed suit “on behalf of” and not as “subrogee of” and, second, whether the trial court improperly characterized the verification as faulty when it was signed by a representative of Hartford with knowledge of the claim - or in the alternative whether the Court should have allowed an amended verification.

The Superior Court agreed that Domtar Paper was inapplicable because Hartford filed suit “on behalf of Chen” and was attempting to establish the liability of third party tortfeasor to Chen.  The Court, relying on prior case law, considered that either joining the employer as a party plaintiff or as a use plaintiff would operate to secure the employer’s interest in its recovery of its subrogation lien.   “We therefore hold that Section 319 is an exclusive remedy and that for an employer or its insurer to enforce its subrogation rights, it must proceed in an action brought on behalf of the injured employee in order to determine the liability of the third party to the employee.  If such liability is determined, then the employer or its insurer may recover, out of an award to the injured employee, the amount that is paid in workers’ compensation benefits”.  The Superior Court then stated: “Hartford is not attempting to ‘pursue a subrogation claim directly against a third-party tortfeasor’, is not seeking to recover only the amount that it paid to Chen in workers’ compensation benefits, and is not splitting Chen’s cause of action”.  The Court observed that Hartford had otherwise brought a single action against the third-party tortfeasors in the name of the injured employee and was trying to recover the entire amount to which Chen might be entitled.

The Superior Court also noted that because the suit was filed in Hartford’s name it was a party in the litigation and therefore its representative could verify the Complaint as a representative of “one or more of the parties filing the pleading”, remanding for further proceedings.

Ultimately, the Supreme Court of Pennsylvania, Eastern District, at No. 205 EAL 2017, granted a Petition for Allowance of Appeal, which raises three specific questions:

(a)       Can a workers’ compensation lienholder bring a third party action on behalf of the injured worker to recoup amounts paid to the injured worker from the alleged tortfeasor to the standard set inLiberty Mutual Insurance Company v. Domtar Paper Company [citation omitted]?

(b)       Did the Superior Court fail to see that the failure to attach the verification of Chunli Chen to plaintiff’s Complaint and decision to attach the verification of the insurance adjuster with knowledge of the lien, supports the argument of [Petitioners] that this lawsuit was brought without the cooperation of Chunli Chen and solely on behalf of the insurance company in an attempt to subrogate its lien in direct contradiction of the standard set inLiberty Mutual Insurance Company v. Domtar Paper Company [citation omitted]?

(c)       Is the caption, and effect of the caption, “The Hartford Insurance Group on behalf of Chunli Chen” synonymous with “Liberty Mutual Insurance Company, as subrogee of George Lawrence” as it appears inLiberty Mutual Insurance Company v. Domtar Paper Company [citation omitted]?

ConnorsO’Dell LLP

Trust us, we just get it!  It is trust well spent!

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

 Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

Cousineau, Waldhauser, & Kieselbach attorney Whitney Teel attended and presented at the Larson’s Annual Advisory Board Meeting on Minnesota’s workers’ compensation trends for 2017. The Advisory Board consists of one lawyer from each state. Thomas Kieselbach has been a member of Larson’s Advisory Board for years, advising all members on Minnesota workers’ compensation law.

Whitney presented on three significant Minnesota Supreme Court cases Kubis,Hohlt, and Sanchez. The Sanchez decision received nationwide attention for the emerging issues intersecting employment, workers’ compensation and immigration law. Lexis Nexus listed theSanchez case as one of the top 10 workers' compensation cases for 2017. 

Whitney has also prepared the Minnesota submission for the Lexis Workers’ Compensation Emerging Analysisbook that will be published later this year.

Natalie Lund will be lecturing at the 2017 Workers’ Compensation Deskbook seminaron December 1, 2017 sponsored by Minnesota CLE. Her topic will be Attorney Ethics.

The Deskbook seminar is an annual event. All key cases and developments over the past year will be covered. This is the premier Minnesota workers compensation seminar.

We congratulate Natalie for being selected as a speaker.

Cousineau, Waldhauser, & Kieselbach is proud to welcome two new Associate Attorneys to the firm. Scott Ferriss and Bryan Wachter will be great additions to the team. See below for their biographies.

Scott Ferriss

Prior to joining Cousineau Waldhauser, & Kieselbach, Scott worked in E-discovery. During law school, Scott was a legal extern at the Minnesota Department of Transportation Chief Counsel’s Office and at a large health insurance company in the government programs compliance department. His externship work included legal research, drafting memoranda, and ensuring compliance with government audits.

In his previous career, Scott served as Legislative Assistant to a United States Congressman in Washington, DC covering legislative issues that included, transportation, education, environment, healthcare, and telecommunications. After nearly five years of working for the Congressman, Scott and his then betrothed, Kristen, decided to go to law school. He does not recommend planning a wedding during the first year of law school.

Scott is passionate about the game of golf, railroads, and The Beatles. When he is not golfing, he enjoys spending time with his wife and two cats, Ringo and Eleanor Rigby. 

Bryan Wachter

Prior to joining Cousineau, Waldhauser, & Kieselbach, Bryan was a law clerk to the Honorable Mike Furnstahl, Referee of District Court, Fourth Judicial District, Minnesota. He performed legal research, wrote memoranda, recommended decisions, and drafted orders for the Court.

While in law school, Bryan served as a law clerk at Mid-Minnesota Legal Aid in the consumer division and worked as a research assistant under Professor Neil Hamilton in the development of the American Bar Association publication “Roadmap: The Law Student’s Guide to Preparing and Executing a Successful Plan for Employment.”

Outside of work, Bryan enjoys staying active and spending time with his wife and two dogs. He is an avid reader, sports fan, and music fan.  

Cousineau, Waldhauser, & Kieselbach is proud to be the Minnesota representative for the National Workers’ Compensation Network (NWCDN). The NWCDN is a network of law firms from 45 states dedicated to protecting and representing employers and insurers in workers’ compensation cases.

NWCDN's annual seminar will be held on October 19, 2017 at the Ritz-Carlton Buckhead, 3434 Peachtree Road NE, Atlanta GA. The seminar is open to clients of NWCDN member firms. The cocktail party will be held on October 18, 2017.

Below is a link to the NWCDN website where you can register. There is no cost for the conference and cocktail party. We hope you can attend.

http://www.nwcdn.com/

Tom Coleman, Jennifer Fitzgerald, Tom Kieselbach, Mark Kleinschmidt, Richard Schmidt and Jim Waldhauser have been selected for inclusion in the 2018 Edition of Best Lawyers in America.

For more than 30 years Best Lawyers has published premier guides for the legal profession recognizing talent throughout the word. Currently, lawyers in over 70 countries are recognized. Inclusion in Best Lawyers is based solely upon peer review.

We congratulate our Best Lawyers for their hard work and dedication to our clients.

When a petitioner files a motion for medical and temporary disability benefits and the only issue is which carrier or employer is responsible, the Judge of Compensation can order benefits paid by one of the parties pending the outcome of litigation. The logic behind this rule is that it is unfair to delay benefits to an injured claimant while two potentially responsible employers or carriers fight out which of the two should be legally responsible.   But there are limits to this practical rule, as noted in Calix v. A2Z Universal Landscaping and Utica National Insurance Group No. A-3978-15T2 (App. Div. September 7, 2017).

The case began with a serious injury to Mr. Calix, who was not sure who his employer was.  He filed motions against both RNR Technologies, Inc. and A2Z.   RNR was not insured and never answered the claim petition nor responded to the motion.  Utica, as carrier for A2Z, began to make payments but stopped when it determined that there was no evidence petitioner was employed by A2Z.

Mr. Calix testified that he began working at 3200 Bordentown Avenue in Parlin, N.J. a few months prior to the accident and was paid cash.  He never received any documentation identifying his employer.  The petitioner’s certification asserted that the address above was that of RNR.  Petitioner testified that he never heard the name of A2Z and never saw any signs bearing the name of A2Z.  He said he was hired by Roger West and an individual named Steve. That was the extent of his knowledge.

The Judge of Compensation directed A2Z to pay Calix temporary disability benefits retroactively to the date of accident on the basis of an administrative court rule under N.J.A.C. 12:235-3.2 (h).  That is the rule which states that the Judge can order one of the carriers or employers to pay pending litigation where the only issue is which employer or carrier is liable. A2Z appealed the court order and contended that this rule did not apply where the critical issue in the case is employment by one of the companies.

The Appellate Division reversed the order of the Judge of Compensation.  It said, “There is no evidence supporting the judge’s implicit finding A2Z was Calix’s employer and therefore no basis upon which the judge could properly award temporary benefits under N.J.S.A. 34:15-15.”  The Court added that this administrative rule “presupposes that a respondent ordered to pay temporary benefits is the petitioner’s employer in the first instance.”

The case is instructive because in today’s workplace it is increasingly common that employees do not always know the identity of their employer.  In this case, petitioner only knew he worked at the address of RNR, which was uninsured and did not even respond to pleadings in the case.  There was no evidence at trial that A2Z was in fact petitioner’s employer; hence, the logic of the administrative rule did not apply.  A2Z was entitled to try the issue of employment, and the burden was on petitioner to prove employment.

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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.