NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
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Written by: Lindsay Underwood
The Commission has recently issued decisions in the first extended benefits cases, in which plaintiffs are arguing entitlement to benefits past the 500-week cap provided in the 2011 reform. The cases have only been heard at the Deputy Commissioner level but give some additional insight into how they may be treated in the near future while we await inevitable appeals to the Full Commission and Court of Appeals. As a reminder, to obtain benefits beyond the 500-week cap, the injured employee must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. The employee is only eligible to request a hearing on this issue after 425 weeks have passed from the first date of disability. In the cases below, the decisions are split.
The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The plaintiff in that case had no formal education but did have a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, he was working for a hospital and sustained injury while breaking up a fight. He experienced a significant beating, which ultimately resulted in headaches, PTSD, and depressive disorder. Deputy Commissioner Harris determined that was entitled to extended benefits beyond the 500 weeks. The Deputy found that plaintiff had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C. Gen. Stat. § 97-29(c), and he has proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Thus, he was entitled to extended benefits. The plaintiff presented expert evidence that the plaintiff was totally disabled from any employment and the defendants presented medical evidence that the plaintiff was not disabled at all. The case basically hinged on which medical expert was found to be most credible.
The next case, Mary Betts v. North Carolina Department of Health and Human Services and CCMSI, was issued on March 12, 2021, also by Deputy Commissioner Robert Harris. The plaintiff in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had elapsed. Plaintiff worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained injury to the ankle which resulted in multiple surgeries. Plaintiff had sedentary work restrictions. Evidence showed that plaintiff remained involved with the Girls Scouts as a troop leader and summer camp director, volunteered with PTA, cut her own grass, and does crafts. The vocational expert testified that plaintiff’s condition prevented her from being employable. The Deputy found that plaintiff had proven by the preponderance of the evidence in view of the entire record that she “has sustained a total loss of wage-earning capacity” because of this compensable long-term ankle condition. As such, Plaintiff was entitled to extended compensation.
The third case, Michelle Brown v. NC Department of Public Instruction/Surry County Schools and Sedgwick, was issued on May 4, 2021, by Deputy Commissioner Jesse Tillman, III. The plaintiff was working as a teacher’s assistant at a high school on February 24, 2012 when she sustained injury. Plaintiff worked for the County in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. Plaintiff had permanent sedentary work restrictions. Plaintiff testifies that she rides a motorcycle a few times during the summer, uses a riding lawnmower, can walk 1-2 miles without issue, bowls twice a week, cares for multiple animals, and actively swims. A vocational expert provided a labor market survey that showed the availability of jobs within plaintiff’s work restrictions. Plaintiff presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy found that plaintiff could at least work a part-time, sedentary job. Plaintiff’s claim for extended benefits was denied.
The last new case is Martin Strudivant v. North Carolina Department of Public Safety and CCMSI. The decision was issued by Deputy Commissioner Erin F. Taylor on May 5, 2021. Plaintiff sustained a compensable back injury on July 23, 2013. He was a high school graduate and had completed some post-graduate courses. He was certified to dive a forklift, had training in blueprint reading, and had CPR experience. Plaintiff had been on his church’s Board of Trustees since 2008. On the date of his injury, plaintiff was working transporting inmates. Four of plaintiff’s physicians testified plaintiff could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Defendants’ vocational expert also testified that plaintiff had capacity for work. It was determined that plaintiff could not show a “total loss” of wage-earning capacity and that the plaintiff’s wage earning capacity had not been destroyed. Thus, plaintiff could not show entitlement to compensation beyond the 500-week cap on benefits.
As you can see, the four decisions that have been issued to date have been a 50-50 split on entitlement to extended benefits. The cases are also very fact specific. What is clear from the decisions where entitlement to extended benefits has been denied is that the testimony from medical providers and a vocational rehabilitation specialist are necessary to support a finding that a plaintiff has wage earning capacity. Defendants should make sure to have good experts secured prior to the hearing, along with possible surveillance and a labor market survey. It is also helpful to have a complete picture of the plaintiff’s job history, educational background, and other activities outside of work or education, like the ability to exercise, do yardwork, or maintain positions on boards or as a volunteer. We will continue to monitor cases as they are issued at the Deputy level, and as they are appealed to the Full Commission and Court of Appeals.
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All too often holiday parties end with some unfortunate injury. Is such an injury covered in workers’ compensation? It depends on the circumstances. The Court in Regalado v. F&B Garage Door, A-0083-20, (App. Div. June 8, 2021), found that the injury in this case did not arise out of and in the course of employment.
Some of the facts in the case were undisputed. On Friday, December 23, 2016, the company hosted its annual holiday party at a local restaurant. The party was for employees, friends and family. No company clients or vendors were invited. The owner of the company, Frida Ferrera, said that the purpose of the party was to thank employees for their hard work throughout the year.
Petitioner, Ms. Regalado, invited her brother as in prior years. Since neither of them drove, the owner drove them to the party. The vehicle in which they all drove was owned by Martinez, who was not employed by the company. Everyone at the party except the owner consumed alcohol. No one was paid to attend the party nor compensated for travel time.
The parties also agreed on the circumstances of the accident. After the party ended, Ferrara drove first to her own home. She exited the vehicle and then Martinez, the car owner, got in the driver’s seat. Minutes later Martinez drove into a parked car, which caused the vehicle to flip over, resting on its roof. Petitioner and her brother were treated at the ER and petitioner required surgical procedures to her neck and jaw.
Petitioner filed a workers’ compensation claim petition. She argued that the owner told her she would not receive a holiday bonus if she did not attend the holiday party. This allegation and others made by petitioner were disputed. Petitioner also claimed that she received her cash bonus at the restaurant. During testimony, however, petitioner said that she would not have attended the party if transportation had not been provided.
Respondent produced three lay witnesses. They all testified that bonuses had already been paid prior to the holiday party. The owner denied saying that petitioner’s bonus was contingent on attending the party. The owner testified that the party was optional and there were no job ramifications for refusal to attend. Another employee testified that he attended the party for two years and was never told his bonus was contingent on attending. He also said the bonus was paid prior to the party.
The only documentary proof offered by petitioner was a bank statement listing her deposit history between December 9, 2016 through January 10, 2017. Those documents showed $540 was deposited on December 27, 2016. Petitioner’s math did not add up. She said this amount represented three days of pay at $60 per day plus a $300 cash bonus received at the party. That total was $480, not $540.
After hearing testimony on several days, the Judge of Compensation found petitioner not credible nor consistent. He observed that petitioner testified to receiving different amounts on different days of testimony. He also thought it was contradictory for petitioner to say that she would not have attended the party without transportation being provided but then maintain that her attendance was essentially mandatory. As for the bank deposit, the Judge of Compensation noted that there was no showing when petitioner received these funds. The judge dismissed the case and petitioner appealed.
The Appellate Division explored the requirements under N.J.S.A. 34:15-7. It noted that for a social activity to be compensable petitioner must prove that there is a benefit to the employer beyond improvement of health and morale. In this case the party was clearly about employee morale since only coworkers, friends and family were invited, not clients or vendors.
That left one remaining legal argument made by petitioner, namely that her attendance was mandatory. There is a line of cases in New Jersey that establishes compensability when an employee is required to perform some activity, whether recreational or social. The Court found no evidence that petitioner was in fact required to attend, or that there were threats of reprisal to her for non-attendance. The Court viewed the party as an informal gathering on an optional basis. It gave no weight to petitioner’s argument that her bonus was on the line because other witnesses made clear that the bonus was paid prior to the party. The Court agreed with the Judge of Compensation that petitioner’s statement that she would not have attended the party absent transportation conflicted with the so-called mandatory nature of the party.
The lesson from this case is that employers who wish to host holiday parties and other similar events should make clear in writing that attendance is optional and voluntary and that there are no adverse job consequences for non-attendance.
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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 many years, the common wisdom has held that carpal tunnel syndrome occurs through repetitive use of the hands and fingers; typing is often given as an example of what causes this malady. Consistent with this common wisdom, the Industrial Accident Board often found carpal tunnel syndrome to be related to one’s employment performing repetitive hand movements. However, the Board appears to be undergoing a paradigm shift in the compensability of allegedly work-related carpal tunnel syndrome, consistent with a growing body of scientific literature on the subject. A recent Board Decision has adopted the most recent scientific literature on carpal tunnel syndrome. Specifically, the Board accepted the opinion of a medical expert that recent scientific studies were performed comparing keyboarding work with the general population and the occurrence of carpal tunnel syndrome; those studies showed no increased occurrences of carpal tunnel syndrome with individuals who performed regular keyboarding work. See Lewis v. State, 1481670 (Feb. 9, 2021). However, the expert in that case did note an increased occurrence of carpal tunnel syndrome in professions “with a forcible use of the wrist against resistance,” with examples of meat packing plants and work with vibrating tools. It is also worth noting that carpal tunnel syndrome has been alleged as a consequence of acute trauma, whether to the shoulder, wrist, hand, or fingers. However, much of the same science applies. The Board has accepted a medical opinion, offered in the case of an alleged traumatically induced carpal tunnel syndrome, that “60 percent of CTS cases have an idiopathic, or unexplained, origin.” Woodie v. Malik’s Repair, Inc., IAB No. 1496417 (Nov. 13, 2020). The idiopathic nature of the condition can combine with testimony on a lack of direct trauma, and/or a delay in symptoms, to avoid compensability. See Gonzalez-Hernandez v. JT Hoover Concrete, IAB No. 1465912 (Sep. 6, 2019). In sum, the Board is casting a more critical eye on allegations of carpal tunnel syndrome. For that reason, claims of carpal tunnel syndrome should be investigated thoroughly, with the goal of raising a vigorous defense where possible. Following these trends and the Board’s guidance on same, allegations of carpal tunnel syndrome from repetitive hand or finger movement should be scrutinized to a greater extent, while a diagnosis following trauma should be investigated for prior symptoms, delays in symptoms, and potential idiopathic or alternative causes of the condition and/or symptoms. A full investigation, supported by an expert examination, will help to continue this trend in favor of the defense. If you should have any questions on this issue, then please contact anyAttorney in our Workers’ Compensation Department. |
Wanda Blanche Taylor was confirmed by the North Carolina General Assembly to serve as a Commissioner replacing former Commissioner and Chair of the Commission, Charlton Allen. Commissioner Taylor’s term begins immediately and runs through June 30, 2026.
The General Assembly has confirmed Governor Roy Cooper’s appointment of Adrian A. Phillips to serve as a Commissioner on the North Carolina Industrial Commission. Phillips will begin serving her term upon taking her oath of office.
Mike MacKay was recently hired as the Director of Claims Administration at the IC. Attorney MacKay has extensive experience in Worker’s Compensation. Most recently, he was the managing attorney of the Worker’s Compensation Department at the Law Offices of James Scott Farrin and had previously represented defendants in Worker’s Compensation and personal injury cases at the law firm of Cranfill Summer.
Wes Saunders, most recently an Assistant Atty. Gen. at the Department of Justice handling Worker’s Compensation cases, was appointed as a Deputy Commissioner and is assigned to the Commission’s Raleigh office.
Celeste Harris was recently appointed as a Deputy Commissioner and assigned to the Winston-Salem regional office. Attorney Harris has represented injured individuals for over 30 years in the areas of Worker’s Compensation, personal injury and Social Security disability. She is also a North Carolina State Bar Board Certified Specialist in Worker’s Compensation law and a North Carolina Certified Mediator.
In exchange for providing no fault workers’ compensation insurance, Alabama employers are afforded the protections of the Exclusivity Doctrine. While this doctrine serves to insulate employers from liability claims, Alabama Code § 25-5-11 provides a means for recovery against supervisors and safety personnel. To prevail, the employee must prove by clear and convincing evidence that the injuries resulted from a co-employee’s willful conduct. § 25-5-11(c)(1) requires a finding that the co-employee acted in a manner where he or she knew or should have known that someone would be injured. § 25-5-11(c)(2) requires a finding that the co-employee committed an overt act, such as removing a safety device that exposed the plaintiff to injury.
The Alabama Supreme Court recently reaffirmed the difficulty of proving co-employee willful conduct claims in its Means v. Glover opinion. In Means, the employee was burned by molten lead. At the time of the incident, he was using a forklift to pour a 55-gallon drum of sodium hydroxide into a hot kettle of molten lead and other metals. Because the process was newly developed and implemented, he did not know that he was adding the sodium hydroxide too quickly, or that doing so would cause it to react with the aluminum, form hydrogen gas, and explode. The employee asserted that his co-workers should have known of the dangers of mixing the substances, and that a safety windshield should have been installed on the forklift. However, he failed to produce the requisite clear and convincing evidence that his co-workers knew of the danger and instructed him to proceed with pouring the sodium hydroxide, with purpose of causing injury. For this reason, the trial court entered judgment in favor of the employer on the § 25-5-11(c)(1) claim.
Judgment was also entered in favor of the employer on the § 25-5-11(c)(2) claim because the evidence established that the forklift was purchased without a safety windshield. To prevail under this statutory provision, the safety mechanism must have been removed. There is no provision that an available safety mechanism must be added.
The Alabama Supreme Court found no error and affirmed the trial court’s Order.
About the Author
This blog submission was prepared by Karen Cleveland, 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 Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.
Written by: Daniel Hayes
If a claimant in a workers’ compensation claim is a current Medicare beneficiary, the carrier has certain reporting obligations to the Centers for Medicare and Medicaid Services (CMS). Under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA), the carrier’s Responsible Reporting Entity (RRE) must not only report any settlement as fulfillment of its Total Payment Obligation to Claimant (TPOC), but also whether the carrier has any obligation to provide medical compensation, or Ongoing Responsibility for Medicals (ORM). The carrier’s ORM is indicated to CMS as either “yes” or “no,” reflecting whether responsibility for payment of medicals under the workers’ compensation claim is admitted or denied. Once ORM is indicated as “yes,” CMS will assume any and all medicals arising out of the accident are the responsibility of the workers’ compensation carrier as primary payer, or debtor. This ORM will trigger ongoing reviews for any Medicare conditional payments, with the Commercial Repayment Center (CRC) seeking reimbursement for these Medicare conditional payments, as necessary.
In North Carolina, there are two important statutes of limitation that may allow a workers’ compensation carrier to terminate ORM. Under Section 97-25.1 of the North Carolina Workers’ Compensation Act, a two-year statute of limitations limits the claimant’s ability to seek additional medical care after the last payment of medical or indemnity compensation, as follows:
97-25.1. Limitation of duration of medical compensation.
The right to medical compensation shall terminate two years after the employer’s last payment of medical or indemnity compensation unless, prior to the expiration of this period, either: (i) the employee files with the Commission an application for additional medical compensation which is thereafter approved by the Commission, or (ii) the Commission on its own motion orders additional medical compensation. If the Commission determines that there is a substantial risk of the necessity of future medical compensation, the Commission shall provide by order for payment of future necessary medical compensation.
N.C. Gen. Stat. 97-25.1. The carrier may use this two-year period from the last payment of medical or the last payment of indemnity, whichever is later, to know and calendar when ORM should be terminated.
Under Section 97-47, the legislature provided a separate two-year statute of limitations for pursuing a change of condition claim, as follows:
97-47. Change of condition; modification of award.
Upon its own motion or upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this Article, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid but no such review shall be made after two years from the date of the last payment of compensation pursuant to an award under this Article, except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Article.
N.C. Gen. Stat. 97-47 (emphasis added). The carrier may also use this two-year period from the last payment of compensation under an award to know and calendar when ORM should be terminated.
Please note, as highlighted above, the statue also includes a one-year statute of limitations for seeking a change of condition in a medical only claim. This would appear to allow the carrier to use a one-year period from the last payment of medical compensation to diary the termination of ORM in a medical only claim.
Practice Tip: With regard to medical only claims, there is some inherent inconsistency in these statutes. To our knowledge, there is no case that directly addresses the one-year change of condition period under Section 97-47 for a medical only claim. It is unclear whether Sections 97-47 and 97-25.1 may conflict with the claimant’s right to seek additional medical care in a medical only claim under certain circumstances.
Written by: Matthew Flammia
As we head into the summer season, there is no better time for a refresher on the calculation of average weekly wages for seasonal employees.
A seasonal employee is one whose primary employment is during “peak” times versus “slack” times. When looking into this issue, it is important to remember a couple of guidelines that have been established by the North Carolina Courts:
In North Carolina, there are five methods for calculating an injured employee’s average weekly wage.
Method 1: Is to be used when the employee worked for the employer 52 weeks prior to the date of injury and did not miss more than seven (7) consecutive days at one or more times. The average weekly wage is simply calculated by dividing the total wages over 52 weeks by 52.
Method 2: The employee worked for the employer 52 weeks prior to the date of injury, but missed seven (7) consecutive days at one or more times over those 52 weeks. To calculate the average weekly wage under Method 2, calculate the total wages over 52 weeks and divide by the number of weeks remaining after subtracting one week for each seven-day period missed.
Method 3: Is to be used when the employee worked for the employer less than 52 weeks prior to the date of injury. To calculate the average weekly wage under Method 3, divide the total wages of the employee by the total number of weeks the employee worked for that employer.
Method 4: Is to be used when the employee has worked for employer for only a short period of time or employment has been casual intermittent and it is impractical to use Method 1, 2 or 3. To calculate the average weekly wage under Method 4, you would use a similar situated employee with the same grade paid in a similar position during the 52 weeks prior to the date of injury.
Method 5: Is the “catch-all” provision that may only be used when the prior Methods produced an unjust result to either party. There is no prescribed Method to calculate the average weekly wage under Method 5.
Generally, for seasonal workers, also sometimes categorized as temporary, intermittent or casual employees, we will look to Method 5 and use a hybrid approach to determine the average weekly wage.
For seasonal workers, the average weekly wage would be calculated by dividing the amount the employee earned by 52 weeks, no matter the length of employment. Using this method will account for the peak and down time during the season and rest of the year. Otherwise, if you only used the weeks that an employee worked or earned wages, the seasonal position would be turned into a full-time, year-round employment. Again, the Courts have held that the average weekly wage should be fair and just to both parties.
Around this time of year, North Carolina’s agriculture business tends to increase, which in turn leads to an increase in seasonal agricultural employees. One type of specialized seasonal agricultural employees are called H-2A workers. This program is administered by the North Carolina Growers Association (NCGA), and in fact, "approximately thirty percent (30%) of NC agricultural employees rely on the H-2A agricultural visa program to keep farming.” Calculating an H-2A’s average weekly wage should be performed in the same manner as seasonal employees, but there are some things to remember regarding these employees.
With any agriculture employee, if the employment contract provides compensation in lieu of wages (e.g. wage withholding for lodging) these allowances are deemed to be part of the employee’s earnings and should be included within the average weekly wage calculation. Generally, this is done by considering the fair market value of such lodging in the area and incorporating it into the employee’s earnings.
Finally, with agricultural employees, and commonly seen with H-2A workers, there may be a joint employment contract. H-2A workers in North Carolina are under a joint employment contract managed by the NCGA. These employees may work for any employer participating in the H-2A program with the NCGA, and therefore, the average weekly wages for the H-2A employees must consider the wages the employee earned from all of the joint employers that were part to the contract. This is not an exception to the general rule, but instead, reflects the relationship of the employee’s multi-employer contract.
For employers, perhaps the most negative aspect about New Jersey Workers’ Compensation Act is the proliferation of what are called “reopener” petitions. These do not exist in many states. The injured worker in New Jersey who receives a permanency award can file within two years of the last date of treatment or payment of indemnity benefits for an increase in disability. One reason employers get frustrated is that it is so easy to file a reopener claim petition in New Jersey even when the injured worker has never requested or received treatment from the date of the award right up to the date the reopener has been filed.
Modification petitions or “reopeners” comprise a large percentage of claim petitions in the Division. Either party can file for modification, but rarely do employers ever file to lower a percentage award. While most small percentage awards are not reopened, most large percentage awards do get reopened. This blog focuses on questions that employers should consider when faced with a reopener petition in determining whether the medical condition described in the prior award is deserving of additional treatment and ultimately an increase in the percentage of disability. Alternatively, is this a case that should be tried to a conclusion or should it be resolved on a Section 20?
We must start with what are known as form reopener interrogatories that are required to be completed by petitioners. The 18 questions on the form reopener interrogatories are helpful. They include questions about medical treatment and hospitalizations since the prior award, subsequent employment, new claim petitions against other employers and a question about new accidents/injuries: “Have you suffered any other accident or injury or occupational condition since the date of your last compensation hearing?”
These are all good questions but they are insufficient. In the opinion of this practitioner, the questions contained in reopener interrogatories are outdated and fail to address some of the most important issues. Let’s consider the case of a 50-year-old man with preexisting osteoarthritis. He sees his co-employee struggling to lift a heavy box and hurries over to assist. In so doing he feels sudden pain in his left knee. A partial tear is diagnosed, surgery ensues, and an award gets entered for 25% of the leg. At the time of the settlement petitioner gives his complaints and testifies that he still enjoys jogging, going to the gym and playing basketball.
Eighteen months later a reopener is filed with no treatment having occurred during those 18 months. The petitioner answers “no” to the question about any new accident or injury since the award. However, the petitioner has had knee pain since the award while working out in LA Fitness where he regularly goes, but the form interrogatories contain no question along those lines. Here is the problem with the question about subsequent “accidents” or “injuries.” If you ask 100 people for the definition of an accident or an injury, you will get 100 different answers. But if you ask whether the petitioner has had pain in his knee during the past 18 months, that is a yes or no question.
Petitioner’s counsel sends a letter to the adjuster requesting a referral back to the former surgeon. Now what? Options include setting up an exam right away, waiting for answers to form interrogatories before doing anything, or declining the request completely, which may prompt a motion for medical and temporary disability benefits. But there is another option: before deciding to set up an exam, defense counsel or the adjuster can ask counsel for petitioner some simple questions:
1. “Has your client been jogging, going to the gym or playing basketball in the past 18 months?” — remember, he testified to doing this at the time of settlement.
2. “When did your client begin to experience pain over the past 18 months and what was he doing when he felt the pain?”
Assume that the employee’s attorney responds that his client has in fact been going to the gym and has occasionally felt pain while working out. Counsel also states that after running sometimes petitioner felt more pain and swelling in his knee but he did not see a doctor. Is this information potentially important? The answer is emphatically yes and the examining doctor must consider it. Would you have gotten this information if you just used form reopener interrogatories. The answer is probably no. The point is that one must ask the right questions to get the right information.
A better interrogatory question than asking for a subjective characterization of whether there was a new accident or new injury would be to ask about the existence of pain in the knee since the award and the connection to any specific activity. There is a difference between a case where the employee says: “every day since the award my pain has never left me” as opposed to “I had 17 good months and then I was in the gym and the old knee pain suddenly returned.”
Practitioners know that if someone has a preexisting knee condition but that condition is legally aggravated (objectively worsened) by a work event, the employer is liable. But that rule works both ways. If someone gets an award for the knee and then post-award the knee condition is aggravated by running or working out in the gym, the employer may no longer be liable. Medical experts must comment on the connection between the non-work activities and the worsening in the knee.
Times have changed in the past 40 or more years since reopener interrogatories were created. Back then there were no gyms in every shopping center and no treadmills and elliptical machines at home. The hot stocks were IBM and GE, not Nike and Peloton. It is a significant omission that the form reopener interrogatories have no questions about gym activities, use of home exercise machines, outdoor sports, etc., and no questions about the existence of new or episodic pain since the prior award. For purposes of both treatment and increased disability, treating and evaluating doctors need to get information on physical activities which the petitioner engaged in since the prior award.
What can employers do when faced with a request for treatment 18 months post-award? Defense counsel can ask petitioner’s counsel for information on what physical activities petitioner has engaged in during the past 18 months. What sports activities has the injured worker engaged in? Could this be a case where the petitioner has been regularly hiking, jogging, riding a peloton or outdoor road bike? If so, that information may be highly important to the doctor. In addition, counsel and the adjuster can ask when the petitioner first felt pain since the award, or was the pain there all along since the time of the award?
Adjusters, employers and defense counsel should resist the temptation to view reopener interrogatories as the only questions that can ever be asked. Frankly, most petitioners’ counsel want to move the case along and get their clients to treating physicians. If the questions are reasonable, they will address them. In the same way, when petitioner’s counsel asks for the personnel file of the petitioner, most employers oblige even though there is no specific rule on this.
New Jersey is a state where the formal discovery is only moderately relevant; therefore informal discovery is critical to engage in. The doctor selected for the medical examination can also go into questions along these lines, but how many doctors understand what a reopener is? To put this in perspective, 18 months is a very long time: there could several hundred visits to the gym during that period of time or a few hundred two mile runs. What role did these activities play, if any, in the worsening of the knee case discussed above?
The lesson in all this is that in reopener cases employers need to focus heavily on the time period between the award and the date of the reopener. Social media can assist in certain cases, and interviews with supervisors can help identify possible outside activities. A new ISO is often pivotal. Unfortunately, the current diagnosis is that New Jersey’s form interrogatories seem rather out of shape and in need of a good workout.
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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.
