It is not uncommon for insurers to conduct surveillance of a workers compensation claimant. The New Hampshire Department of Labor [“DOL”] does not have any rules or written procedures expressly requiring the disclosure of all surveillance video and related information prior to a hearing. The workers compensation hearings at the DOL are administrative and quasi-judicial in nature. They are not strictly bound by the rules of evidence followed by courts, but they are still required to be fundamentally fair to both the claimants and insurers/employers. See Ohio Bell Tel. Co. v. P.U.C. of Ohio, 301 U.S. 292, 302-303 (1937) (state administrative hearings must provide minimal constitutional due process).
The DOL rules do require notice, prior to a hearing, of the evidence and witnesses the parties intend to present. Counsel for insurers/employers interpret this requirement as mandating nothing more than saying in writing that they have surveillance information that may be used during a hearing. However, such minimal notice of something that may have a big impact on the hearing is fundamentally unfair.
As far back as 1951, courts recognized that video surveillance could be presented in a manner that provided a “deceptive impression” in a workers compensation case. Ferraro v. Zurcher, 79 A.2d 473, 479 (N.J. 1951). As a result some states have rules in place for workers compensation hearings that require the full disclosure of all video surveillance and related information prior to a hearing out of “a decent respect for the notice requirement of due process and fundamental fairness.” Gross v. Borough of Neptune City, 875 A.2d 251, 253-254 (N.J. Super. 2005); see Kuykendall v. W.C.A.B., 79 Cal.App.4th 369, 405 (2000) (violation of due process not to have video available to both parties’ experts prior to testimony); M/A Com-Phi v. W.C.A.B., 65 Call.App.4th 1020, 1025 (1998) (due process requires review of surveillance video by all medical experts).
Without prior disclosure of all of surveillance video and related reports an insurer can: present selected portions of video that may be out of context; decide to not reveal claimant favorable portions of video or reports; limit the ability of a claimant to prepare for any cross-examination of the investigator who took the video; limit the ability of a claimant to present witnesses to rebut or explain what is seen on the video; and undermines the ability of a claimant to challenge the reliability of the surveillance. A claimant can bring these concerns to the DOL by way of a motion to compel. Such a motion can be based on both the common law rule of completeness, see State v. Keith, 136 N.H. 572, 574 (1992), and fundamental fairness as required by constitutional due process, see In re Stapleford, 156 N.H. 260, 264 (2007). Both of these legal concepts would support an argument that the claimant must have access to all of the surveillance video and related materials prior to a hearing on the merits in order to receive a fair hearing.
It is not uncommon in personal injury claims for a defendant to put a plaintiff under surveillance. The defendant may want to try to keep the surveillance secret to use as an impeachment surprise at trial. However, such surveillance may not be protected as work product and defendants may be required to disclose the surveillance in discovery.
In the case of Gutshall v. New Prime, Inc., 196 F.R.D. 43 (W.D. Vir. 2000), the plaintiff was hurt in a tractor-trailer accident and sent discovery requests to the defendant that sought the disclosure of all surveillance of the plaintiff. The plaintiff spotted ongoing surveillance and reported it to his lawyer. The lawyer sought to enforce his discovery request by filing a motion to compel with the court.
The defendant claimed the surveillance was attorney work-product that would only be used if appropriate for impeachment at trial. As such, the defendant argued the surveillance was protected from discovery. The Court disagreed and ordered the defendant to hand over all of the surveillance to the plaintiff during pre-trial discovery. The reasoning was that the surveillance may show admissible evidence that is relevant to the plaintiff’s claim of injury. The Court also held that such material was not protected as work-product. In doing so, the Court relied on what it described as the majority of federal district court decisions on both the nature of surveillance and whether surveillance was work product.
Even if the surveillance could be considered work-product, the Court also found sufficient need for disclosure to overcome that claim of privilege. The Court reasoned there was substantial need for the plaintiff to have access to such surveillance prior to trial because of the weight the jury may give the evidence, the need to check the reliability of the evidence and the fact that the circumstances captured by any surveillance cannot be duplicated.
On the issue of what is discoverable prior to trial and the scope of the work product doctrine, New Hampshire law is similar to federal law. As such, consideration should be given in every personal injury case about whether or not the plaintiff should request all surveillance in discovery prior to trial.
Generally, injured workers in New Hampshire have a right to reinstatement to their prior position within eighteen months of their work injury. RSA 281:25-a. By unanimous decision, the New Hampshire Supreme Court recently held that RSA 281:25-a applies to both part-time and full-time workers. See Appeal of Cover, ___ N.H. ___ (Slip. Op. February 26, 2016). This ruling invalidated an administrative rule that excluded part-time workers from receiving the right to reinstatement under the statute. The Court analyzed RSA 281-A:25-a and explained that nothing in the statute excluded part-time workers from its scope. The Court thus concluded that the administrative rule was invalid because it conflicted with the statute.
Most tort actions are governed by a three year statute of limitations. However, tort actions against the federal government are governed by the Federal Tort Claims Act (FTCA), which has a shorter statute of limitations. Examples of tort actions subject to the FTCA include medical malpractice actions against doctors who are federal employees, a negligence action following a motor vehicle accident caused by a federal employee (such as an FBI agent) or a negligence action for a slip and fall on federal property (such as a slip and fall at a post office). Under the FTCA, a plaintiff must present his claim to the appropriate federal agency within two years after the claim accrues. 28 U.S.C. § 2401(b). The plaintiff then has six months to file suit in federal court after the agency acts on the claim. Id.
Generally, if a plaintiff does not meet the deadline for filing his claim, then his claim will be dismissed. However, under the doctrine of equitable tolling, a statute of limitations will not bar a claim if the plaintiff, using due diligence, did not discover the injury until after the limitations period had expired.
Until recently, there was a debate in the federal circuit courts over whether equitable tolling applied to claims subject to the FTCA. On April 22, 2015, in a 5-4 decision, the United States Supreme Court held that the time limitations in the FTCA are subject to equitable tolling. United States v. Wong, 575 U.S. ___ (2015) (Wong.Slip.Op.). Following Wong, a plaintiff may proceed with his or her claim against the government even if he or she has missed the statute of limitations. However, the plaintiff must demonstrate that even with due diligence he or she did not discover the injury until after the limitations period has passed. This is a difficult standard. Thus, even after Wong, one must still be attuned to and follow the unique processes to file claims under the FTCA because equitable tolling is the exception and not the rule.
The New Hampshire Legislature recently amended the statute that defines what is an uninsured motor vehicle. Prior to the amendment, the definition of an uninsured motor vehicle included two categories: (1) vehicles for which the liability insurer was unable to make payment of the policy limits because of insolvency, and (2) vehicles where the applicable liability insurance limits are less than the limits of the uninsured motorist coverage applicable to an insured.
Effective January 1, 2015, the definition of an uninsured motor vehicle includes one more category of vehicles – those vehicles where the “available liability insurance has been reduced by payments to others injured in the subject accident to an amount less than the limits of the uninsured motorist coverage applicable to the insured.” See RSA 259:117.
An example is illustrative of how the amendment expands coverage. Suppose a tortfeasor causes an accident that injures several people. The tortfeasor has a liability motor vehicle policy with $1 million in coverage. Two people are killed in the accident and five other people are seriously injured. The parties allocate a settlement amongst all parties injured or killed in the accident. Assume that the people who were injured but not killed in the accident each received $40,000 from the tortfeasor’s liability policy and that this is a fair allocation based on the amount of claims on the liability policy. Also assume that one of those people had an uninsured motorist policy in the amount of $250,000 and that the person’s damages are over $40,000.
Under the old definition of uninsured motorist coverage, the person with the $250,000 uninsured motorist policy would not be able to recover anything from his uninsured motorist carrier. This is because the tortfeasor’s coverage ($1 million) was more than the person’s uninsured motorist coverage ($250,000). However, under the new definition of uninsured motor vehicle, that same person is entitled to receive uninsured motorist benefits. This is because the claims from the other injured parties in the accident reduced the amount of coverage from the liability insurer to an amount that is less than the coverage under the person’s uninsured motorist coverage. This is a fair result. The injured person should be able to collect under his own uninsured motorist policy because the amount actually available to him through the tortfeasor’s motor vehicle policy is less than the amounts available to him through his own uninsured motorist policy.
If you settle or obtain a judgment in a personal injury case, it would not surprise most people that a person would have to deduct attorney’s fees and the costs of litigation from the final amount of the settlement or judgment. It may not be so obvious, however, that a person would have to pay back an entity that has paid for that person’s medical bills, property damage or lost wages. The right of another party to obtain repayment from a person’s recovery from a claim is called a lien.
There are many types of lienholders and a person’s rights and obligations may be different depending on what type of entity paid for the medical bills, property damage or lost wages. If Medicare paid for medical treatment, there is a duty on the part of the injured person or her attorney to notify Medicare about the litigation and inform Medicare of the amount of any settlement or judgment. Medicare will expect repayment of the amounts it paid that resulted from the liable party’s negligence. The amounts paid for by Medicare when another party was at fault are called conditional payments. The injured person should make sure that all of the treatment Medicare claims are conditional payments actually relate to the subject of the litigation.
If a workers’ compensation carrier paid for medical treatment or lost wages, this entity has a right under New Hampshire law to be repaid from any settlement or judgment received by the injured person. Further, any settlement must be approved by either the Department of Labor or the Superior Court.
Insurance companies and medical treatment providers may also need to be reimbursed from a settlement or judgment.
Repayment of liens should never be overlooked when considering whether to settle a case because the final amount received by the injured person will be reduced by the amount of the lien. The amount of the lien may or may not be negotiated depending on the circumstances and type of lienholder.
On September 4, 2014, the United States District Court for the District of New Hampshire dismissed one of two contribution claims filed by Exeter Hospital based on the lawsuits filed against it by patients infected with Hepatitis C. The patients were infected with Hepatitis C after David Kwiatkowski, a traveling cardiac catheterization technician, had injected himself with syringes of drugs and then replaced those syringes with saline, which in turn were used by patients at Exeter Hospital.
Most of the cases against Exeter Hospital have settled. Exeter Hospital brought a contribution action against a placement agency, Maxim Healthcare Services, Inc., and a certifying agency, the American Registry of Radiologic Technologists (ARRT) seeking contribution for the payments it made to Hepatitis C infected patients. Exeter Hospital alleged that Maxim, who had previously placed Kwiatkowski at hospitals, was aware that Kwiatkowski had been previously fired by a facility. Exeter Hospital also sought contribution from ARRT, alleging that ARRT was aware of the details of an incident occurring prior to the incident at Exeter Hospital, yet it never reported or investigated the incident and permitted Kwiatkowski to work at other hospitals, placing patients of those hospitals at risk.
The Court granted Maxim’s motion to dismiss, finding that although Maxim was aware that Kwiatkowski had been discharged from one of the hospitals at which he was placed, there was no allegation that Maxim was aware of the reasons for that termination.
ARRT also moved to dismiss. However, the Court found that ARRT knew about an incident involving Kwiatkowski misusing drugs yet never reported the incident to the authorities and it permitted him to be placed at other hospitals, which enabled him to remain employed as a traveling cardiac catheterization technician and which placed every patient at such hospitals, including Exeter Hospital, at risk. The Court found that a motion to dismiss was inappropriate because ARRT knew about the incident and, as a certifying agency, had broader duties.