Mowrer v. Genesis Healthcare

Insurance Company

New Hampshire Insurance | Liberty Mutual

Date Decided

March 25, 2019

Panel Members

Timothy Collier

Tom Pelletier

Mike Stovall


Apportionment Average Weekly Wage


Multiple Injuries AWW Multiple Insurers Apportionment Shoulder

File Size

185 KB


Summary from the Troubh Heisler Attorneys

Ms. Mowrer is a CNA who first injured her left shoulder when Genesis was insured by Liberty, and later reinjured her shoulder when Genesis was insured by AIG. Ms. Mowrer return to work modified duty and filed a Review on the 2013 injury and an Award on the 2014 injury, and AIG apportioned against Liberty. Dr. Donovan’s §312 IME found that the 2013 injury contributed only 15% to her overall shoulder condition, and that it no longer contributed to her work restrictions.

Her AWW in 2013 was $542.12 and in 2014 was only $292.53. Judge Hirtle based her partial comp rate on Liberty's higher 2013 AWW, because her 2014 wage was reduced because of the effects of the 2013 injury, per Dunson. Judge Hirtle adopted the IME opinion, ordering 15% apportionment up to the date of the IME opinion, but he found that thereafter the effects of the 2013 injury had ended. He ordered AIG to pay continuing partial benefits based on Liberty's initial higher AWW with no ongoing apportionment. AIG appealed.

Citing several Law Court cases, the appellate panel held that, in a multi-injury case, the latest insurer must initially pay the entire benefit owed, and then get reimbursement from other employers or insurers that are also liable. According to the panel, the later insurer may be required to pay benefits based on a wage substantially higher than the wage earned at the time of the later injury, if that later wage was depressed because of the earlier injury, and even if the earlier injury no longer contributes to the employee’s incapacity.

The panel found no support for AIG's proposition that Ms. Mowrer’s higher initial wage cannot apply simply because the initial injury no longer contributes to her incapacity. The panel also rejected AIG's contention that Liberty should reimburse it from any amount it pays above its 2014-wage liability, holding that AIG's apportionment rights against Liberty depend on Ms. Mowrer's rights against Liberty, which had ended.

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