Bar News - August 20, 2014
Workers Comp & Personal Injury: Poor Pablo – Will He Receive Indemnity Benefits?
By: Jared O’Connor
Narrow Exception to the Statute of Limitations May Lead to Creative Arguments
A prospective client – let’s call him Pablo – comes in to see you for a workers’ compensation consultation. Pablo works for an Amazon.com distribution center and has spent a decade dashing around a concrete-floored warehouse carrying, packaging and shipping orders. He tore the cruciate ligaments in both knees doing this work and eventually needed to take a few months off for surgical repair back in 2007. His injury was accepted by the employer’s insurance carrier as work-related, and weekly benefits were paid while he recuperated from surgery.
|Jared P. O'Connor
Happily, Pablo returned to work again after a few months, although he was cautioned by his orthopedist that eventually, he’d need full knee replacements due to the natural progression of his condition, even if he returned to work within carefully monitored restrictions. And that’s exactly what he did; he’s been on full-time medium duty since returning to work in 2008. Pablo’s a hell of a guy – he hasn’t missed a day of work since, and his twice-yearly medical checkups have always been covered by the workers compensation carrier, no problem.
So, here we are in 2014 and lo, the long-predicted bilateral knee replacements are finally necessary. But now Pablo is being told by the insurance carrier that although his medical treatment will be paid for without complaint as work-related, he’s not entitled to any indemnity benefits for the six to eight months he’ll be totally disabled from work and focusing on physical therapy. Incredulous, Pablo asks you: Is this really true?
It sure is. One of the most commonly-litigated provisions of workers’ compensation law, RSA 281-A:48, I, cuts off Pablo’s right to receive any indemnity benefits. This is so even though there’s no dispute that his post-surgical period of disability is related to his remote work injury and that this period of total disability has been foreseeable for years.
Here’s the statutory language at issue: “Any party at interest with regard to an injury... may petition the commissioner to review a denial or an award of compensation made pursuant to RSA 281-A:40 by filing a petition with the commissioner not later than the fourth anniversary of the date of such denial or the last payment of compensation under such award...”
It’s the emphasized language that is poor Pablo’s problem. Under what amounts to a “plain language” statutory interpretation undertaken in Coloumbe vs. Noyes Tire (1984), our Supreme Court has instructed that 281-A:48,I operates as a four-year statute of limitations. While noting that “one can be sympathetic to the plight in which the plaintiff finds himself in this case,” the Coloumbe court nevertheless held that once the insurance carrier makes any payment of indemnity benefits, if thereafter there is a four-year window where no benefits are payable, benefits are forever cut off for that date of injury, regardless of any future medical worsening.
If my experience is any guide, most plaintiffs’ counsel will at some point have to explain this strange, financially crippling reality to what is almost invariably a hardworking client who tried to do the right thing and get back to work as quickly as possible following a work injury, and to remain working as long as possible while tending to their injury, before ultimately seeing their condition deteriorate to the point of disability - only to then find out it’s too late to seek benefits. I presume defense counsel similarly have mirror-image, “dodged a bullet” conversations with their adjusters when an employee becomes permanently disabled four years and three months after their last indemnity check issued.
The capriciousness of this law becomes obvious when one considers Pablo’s co-worker at the distribution center, Brunhilde. Brunhilde is an administrative assistant, and while checking inventory in the warehouse in 2006, was struck in the pelvis by one of Jeff Bezos’ early model drones. As with Pablo, there was no dispute her injury was work-related, so the carrier voluntarily paid the medical bills associated with the injury. And although the disruption to Brunhilde’s pelvic ring was severe, the largely sedentary nature of her work means that she never missed any time from the job, despite continuous medical care.
The disruption to Brunhilde’s pelvic ring forever threw her sacroiliac joint out of alignment, and now, eight years after the errant drone attack, her physical ability to maintain full-time employment has finally collapsed due to chronic pain. But unlike Pablo, she is free to petition for an A:48 hearing, and since no wage benefits have ever been paid, she can argue for - and be awarded - such benefits for the indefinite future.
Until Coloumbe is reexamined, or A:48 legislatively modified, these results, although practically absurd, are legally sound. To protect themselves from financial ruin, workers like Pablo are presumably better advised to linger at home and seek to collect weekly indemnity benefits while awaiting the inevitable knee replacements, rather than immediately seeking to return to the workforce after the original injury. Why on earth the Legislature would have intended such a result is left to the reader’s imagination.
A Narrow Exception
But all is not lost. There is a very narrow exception to the four-year statute of limitations, an exception that may be largely unknown to even many experienced practitioners.
The Easter egg is in A:23,II. Perhaps incongruously (which is why the provision is often overlooked), this statute focuses on payment of medical bills. It is the only provision in all of RSA 281-A that contains the phrase: “notwithstanding RSA 281-A:48”.
Specifically, here’s what A:23, II does: Uncontroversially, it requires employers or their insurance carriers to “pay compensation for disability resulting from the replacement or repair” of “artificial limbs, eyes, teeth, orthopedic appliances, and physical and surgical aids made necessary” by the work injury. But note carefully the following language: “[n]otwithstanding RSA 281-A:48, I, a party may petition the commissioner for payment of such compensation at any time, if the disability results solely from the replacement or repair.”
Thus, any injured worker who once received indemnity payments but hasn’t in more than four years is not necessarily forever barred from receiving them again, despite Coloumbe and the four-year statute of limitations. If the injury results in a new period of disability specifically because of the need to replace or repair artificial limbs, or orthopedic appliances, or physical or surgical aids, then the claimant can bypass A:48 altogether and request reinstatement of benefits.
To be sure, this is a narrow exception. Although a new injury would reset the four-year clock, a mere worsening of an injured worker’s existing condition wouldn’t do. Appeal of Anheuser-Busch (2008). But a ceramic hip that needs replacing 10 or 15 years after the original surgery? It is certainly arguable that this fits within the statute’s provision for “artificial limbs,” particularly given facts that cry out for equitable relief, and a remedial statute that our Supreme Court repeatedly reminds us is to be liberally construed, “resolving all reasonable doubts in statutory construction in favor of providing the broadest reasonable effect to the statute’s remedial purpose of compensating injured employees.” Appeal of Malouin (2007).
So, if faced with a client who is too disabled to return to work but who’s been told that her claim is denied because it’s been more than four years since her last indemnity check, there remains a surprising glimmer of hope. Imaginative attorneys should take a close look at RSA 281-A:23,II. To avoid the A:48 statute of limitations, broad, undefined terms like “physical or surgical aids” are a fertile ground for creative argument.
Jared O’Connor has been haranguing Labor Department hearings officers and weary defense counsel with legal theories of varying plausibility for more than 10 years. He practices in Nashua.