Attorney General MacDonald confirmed as supreme court chief

U.S. Court News

Attorney General Gordon MacDonald was confirmed Friday as chief justice of the New Hampshire Supreme Court, 18 months after he was initially rejected for the position.

Republicans won a 4-1 majority on the Executive Council in November, ousting Democrats who had blocked MacDonald’s confirmation in July 2019. He will replace Chief Justice Robert Lynn, who retired in August that year.

While MacDonald had broad support from the legal community ? including from Lynn and his two predecessors ? opponents questioned his lack of experience as a judge and his involvement in conservative Republican politics.

MacDonald is Republican Gov. Chris Sununu’s third appointee to the high court without experience as a judge, and the first in at least a century to become chief justice without prior time on the bench.

During a public hearing Thursday, MacDonald said his experience, knowledge and skills have prepared him for the key duties of the job: serving as an appellate judge, acting as administrator of the entire court system and being a leader in the legal profession.

And he promised to leave his personal views at the door, scrupulously follow the law, and deliver fair, impartial decisions in a timely manner.
 
Councilor Joe Kenney said that neither MacDonald nor the state’s justice system is perfect, but that he was confident MacDonald would be an exceptional judge, problem solver and manager.

“I think it’s time we move on with one of our citizens here in New Hampshire, one who has exemplified true character, a legal mind and a willingness to work with people and help serve the people of the New Hampshire the best way he knows how,” he said.

Cinde Warmington, the lone Democrat on the council, insisted her vote was not political but said she had substantial concerns about his commitment to protecting fundamental rights related to health care and voting.

“I strongly believe we need a judiciary prepared to face the challenges of the day: racial injustice, political division, gender inequality. These are issues that will best be addressed by a judiciary that does not bind itself to rigid, robotic computation but one that is true to both the words of our constitution and the complexities of factual consideration in a changing world,” she said. “While I respect him, his legal scholarship and his integrity, I think a court led by Gordon MacDonald will exacerbate rather than heal the wounds of division and injustice in our state.”

In a news release titled “Justice Prevails,” Sununu called MacDonald “one of the most highly qualified individuals ever to serve as chief justice.” MacDonald will be sworn in at a later date.

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Workers’ Compensation Subrogation of Administrative Fees and Costs

When a worker covered by workers’ compensation makes a claim against a third party, the workers’ compensation insurance retains the right to subrogate against any recovery from that third party for all benefits paid to or on behalf of a claimant injured at work. When subrogating for more than basic medical and indemnity benefits, the Texas workers’ compensation subrogation statute provides that “the net amount recovered by a claimant in a third‑party action shall be used to reimburse the carrier for benefits, including medical benefits that have been paid for the compensable injury.” TX Labor Code § 417.002.

In fact, all 50 states provide for similar subrogation. However, none of them precisely outlines which payments or costs paid by a compensation carrier constitute “compensation” and can be recovered. The result is industry-wide confusion and an ongoing debate and argument with claimants’ attorneys over what can and can’t be included in a carrier’s lien for recovery purposes.

In addition to medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages and loss of earning capacity resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, and other similar fees. They also incur other expenses in conjunction with the handling and adjusting of workers’ compensation claims. Workers’ compensation carriers typically assert, of course, that, they are entitled to reimbursement for such expenditures when it recovers its workers’ compensation lien. Injured workers and their attorneys disagree.