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Last Reviewed / Modified On 02 May 2017.

New Hampshire Worker's Compensation Claim Handling Guidelines

Contents [hide]

DEFINITIONS

Employer

“Employer,” with respect to private employment, means:

A person, partnership, association, corporation, or their legal representative, who employs one or more persons in one or more trades, businesses, professions or occupations.

“Employer”', with respect to public employment, means the state, any agency of the state, any county, city, town, school district, sewer district, drainage district, water district, public or quasi-public corporation, or any other political subdivision of any of these that has one or more employees subject to this chapter. Up to three executive officers elected or appointed and empowered in accordance with the charter and bylaws of a corporation and limited liability company members and managers shall not be considered to be employees,

Note that except where the context specifically indicates otherwise, the term employer as used in the NH WC Act also includes the employer's insurance carrier or any association or group providing self-insurance to a number of employers. RSA 281-A:2 VIII

Statutory Employer

Per RSA 281-A:18, a contractor who subcontracts all or any part of a contract shall bear the liability of the subcontractor for the payment of compensation to the employees of the subcontractor, unless the subcontractor has secured the payment of compensation. Any contractor who shall become liable for compensation may recover the amount of the compensation paid and necessary expenses from the subcontractor.

Though the phrase “statutory employer” does not appear in the New Hampshire Workers’ Compensation Act, it has been used by NH Supreme Court in a negligence suit against a parent company of a corporate employer. The court noted that the parent company could claim immunity only if it could demonstrate that it is the alter ego of its subsidiary. Leeman v. Boylan, 134 N.H. 230, 590 A.2d 610, 1991 N.H. LEXIS 38 (N.H. 1991)

Employee

"Employee,'' with respect to public employment, means:

(1) Any person in the service of an employer, including members of the general court, under any express or implied voluntary contract of hire and every elected or appointed official or officer of the state or any political subdivision or agency thereof while performing official duties.

(2) Any person who is a call firefighter or special police officer, volunteer or auxiliary member of a fire or police department, ambulance or rescue service, or the state police, whether paid or not paid. Such a person shall be deemed to be an employee of the political subdivision of the state in which the department is organized.

(3) Any person who is a regularly enrolled volunteer member or trainee of the emergency management corps of NH, as established under the state emergency management act. Such a person shall be deemed to be an employee of the state.

(4) Any person who fights a forest or other type of fire and who is either voluntarily under the direction of those authorized to give direction in the fighting of fires or who is under statutory compulsion to fight fires. Such a person shall be deemed to be an employee of the state with respect to fires fought and deemed to be an employee of the municipality in which the fire is fought with respect to fires fought.

(5) Any person who assists in a search for or an attempted rescue or rescue of another (pursuant to RSA 206:26, XII) and who is voluntarily under the direction of those authorized to give direction in searching for or attempting to rescue or rescuing another. A person who assists in the search for or attempted rescue or rescue of another shall be considered an employee solely with respect to such activity

(6) In the absence of any mutual aid agreement or other similar written agreement that specifically addresses the issue of workers' compensation benefits, any person who acts as an agent to the department of health and human services or the department of safety by providing assistance in response to a specific public health or public safety incident. Such person shall be deemed an employee of the state.

(7) Any member of the New Hampshire National Guard while on state active duty.

(8) Any person who is officially designated by the governing body of a political subdivision as a volunteer in a New Hampshire citizen corps local council program acting in his or her capacity as the emergency management director of the political subdivision.

“Employee,” with respect to public employment includes any person participating in a local welfare work program, however, the local governing body may vote to make the provisions of this chapter not applicable. With respect to public employment the term “Employee,”' shall not include any inmate of a county or state correctional facility who is required or allowed to work or perform services for which no significant remuneration is provided, any volunteer who performs services for which no significant remuneration is provided, any participant performing community service work under a court order or the provisions of a court diversion program, or any person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities. RSA 281, VII

Borrowed Employee

The “borrowed servant doctrine” is a common law rule. Whether someone is a borrowed employee depends on the facts of each case, Burnham v. Downing, 125 N.H. 293, 296, 480 A.2d 128, 130 (1984), and is not dependent upon whether the borrowing or lending employer provided the required workers' compensationcoverage for the employee in question. Nor is it answered by the workers' compensation statute, which merely provides that an employee is "any person in the service of an employer . . . under any express or implied, oral or written contract of hire," RSA 281-A:2, VI (Supp. 1991).

A number of tests have been used to answer the question. See, e.g., Burnham, 125 N.H. at 295-96, 480 A.2d at 130 (1984) (citing test set out in the Restatement (Second) of Agency); Manchester v. Huard, 113 N.H. 81, 83, 301 A.2d 719, 720 (1973) (citing 3-part test set out in 1C A. Larson, Workmen's Compensation Law § 48.00 (1990) which focuses on existence of contract, nature of work, and right of control); Porter v. Barton, 98 N.H. 104, 105, 95 A.2d 118, 119 (1953) (focusing on employer's right to control employee's performance).

Independent Contractor

In order to prove one is an independent contractor as opposed to an employee, an employer bears both the burden of producing evidence and the burden of persuasion on all of the criteria set forth in N.H. Rev. Stat. Ann. § 281-A:2(VI)(b)(1) (below).

§ 281-A:2(VI) (b) (1)

Any person, other than a direct seller or qualified real estate broker or agent or real estate appraiser, or person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, who performs services for pay for an employer, is presumed to be an employee. This presumption may be rebutted by proof that an individual meets all of the following criteria:

(a) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers.

(b) The person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer.

(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.

(d) The person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work.

(e) The person holds himself or herself out to be in business for himself or herself or is registered with the state as a business and the person has continuing or recurring business liabilities or obligations.

(f) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.

(g) The person is not required to work exclusively for the employer.

EXCLUSIVE REMEDY

General Rule

An employee shall be conclusively presumed to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:

(a) Against the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers; and

(b) Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers.

The spouse of an employee entitled to benefits, or any other person who might otherwise be entitled to recover damages on account of the employee's personal injury or death, shall have no direct action, either at common law or by statute or otherwise, to recover for such damages against any person identified in subparagraph (a) or (b).

The exclusivity provision does not limit the rights a former employee may have under common law or other statute to recover damages for wrongful termination of, or constructive discharge from, employment. However, if a former employee makes a WC claim for compensation for injuries allegedly caused by such wrongful termination or constructive discharge, the employee shall be deemed to have elected the WC remedies and to have waived rights to recover damages for such wrongful termination or constructive discharge under common law or other statute. Similarly, if a former employee brings an action under common law or other statute to recover damages for such wrongful termination or constructive discharge, the employee shall be deemed to have waived WC claims for compensation allegedly caused by such termination or discharge. RSA 281-A:8

Exceptions

Workers' compensation is an employee's exclusive remedy for all rights of action whether at common law or by statute against the employer or its insurance carrier. The statute contains a limited exception to the workers' compensation exclusivity bar for claims of wrongful termination or constructive discharge. An employee may elect to bring a claim for wrongful or constructive discharge either under the Workers' Compensation Law or under some other law, but may not bring such a claim under both the Workers' Compensation Law and some other law. RSA 281-A:8, I, III. Appeal of N.H. Dep't of Corrections, 162 N.H. 750, 34 A.3d 1210, 2011 N.H. LEXIS 175

Additionally, New Hampshire has “recognized the existence of…” but not “adopted” the dual capacity doctrine, which permits an employer, normally shielded from tort liability by the exclusive remedy principle, to become liable in tort to his own employee if he acts, in addition to his capacity as an employer, in a second capacity conferring on him obligations independent of those imposed on him as employer." Robbins v. Seekamp, 122 N.H. 318, 321, 444 A.2d 537, 538 (1982). However, NH courts have yet to permit an employee who has received workers' compensation benefits also to maintain an action against his or her employer. See Quinn, 124 N.H. at 421, 469 A.2d at 1370; Holzworth v. Fuller, 122 N.H. 643, 645, 448 A.2d 394, 395 (1982)

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

New Hampshire’s long-arm statute, RSA 510:4, provides:

"Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above."

New Hampshire courts have consistently interpreted this statute to grant jurisdiction whenever the due process clause of the United States Constitution on permits it. Estabrook v. Wetmore, 129 N.H. 520, 529 A.2d 956, 1987 N.H. LEXIS 203 (N.H. 1987) (citing Roy v. North American Newspaper Alliance, 106 N.H. 92, 95, 205 A.2d 844, 846 (1964)).

Extraterritorial Jurisdiction

If an employee is injured while employed outside of NH under circumstances that would have entitled the employee or a dependent to NH workers' compensation, the claimant is entitled to NH workers' compensation benefits:

(a) If the employee or the employee's dependents release the employer from all liability under any other law;

(b) If the employer is engaged in business in NH;

(c) If the contract of employment was made in NH; and

(d) If the contract of employment was not expressly for service exclusively outside of NH.

However, recovery of damages in an action at law or recovery of workers' compensation under the law of any other state shall bar recovery of NH workers' compensation benefits. RSA 281-A:12

Time Limitation

Discovery Rule

281-A:21-a - if the nature of the injury and its possible relationship to the employment are not known to the employee, the three years to file a claim shall not begin to run until the earlier of the following:

I. The date the employee knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employment; or

II. In the event of death, the date any dependent knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employee's employment.

Notice of Injury

Claims for benefits are barred unless notice of injury is given to the employer within two years from the date of the injury; provided, however, that if the nature of the injury and its possible relationship to the employment are not known to the employee, the time for filing notice shall not begin to run until the earlier of the following:

(1) The date the employee knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employment; or

(2) In the event of death, the date any dependent knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employee's employment. RSA 281-A:19

Statute of Limitations

Compensation for disability, rehabilitation, medical benefits, or death benefits under this chapter shall be barred unless a claim is filed within 3 years after the date of injury; provided, however, that if the nature of the injury and its possible relationship to the employment are not known to the employee, the time for filing a claim shall not begin to run until the earlier of the following:

The date the employee knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employment. 281-A:21-a

Special Rules for Death Claims

In the event of death, the date any dependent knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employee's employment. 281-A:21-a

Occupational Disease Claims

For the purpose of determining the date of injury for an occupational disease, the date of injury shall be taken to be the last date of injurious exposure to the hazards of such disease or the date on which the employee first knew or reasonably should have known of the condition and its relationship to the employee's employment, whichever is the later. RSA 281-A:16

Extension of Limitation Period

Compensation for disability, rehabilitation, medical benefits, or death benefits shall be barred unless the claimant petitions for a hearing under RSA 281-A:43 within 18 months after the claimant receives notice that the claim has been denied by the insurance carrier or self-insurer pursuant to RSA 281-A:42, I(b).

Any party 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, upon the ground of a change in conditions, mistake as to the nature or extent of the injury or disability, fraud, undue influence, or coercion. This section does not apply to requests for extensions of medical and hospital benefits, or other remedial care, or to lump sum agreements, except upon the grounds of fraud, undue influence, or coercion. 281-A:48

COMPENSABILITY

General Rule

Compensability:

To prove legal causation, an employee must prove the injury is work-related, and must also prove medical causation, which requires proof that the injury was caused by the work related event. Employee has the initial burden of proof to establish a prima facie case. Once met, the burden of production shifts to the employer to rebut the claims. The burden of persuasion remains with the claimant.

“Injury”Defined

A compensable injury under the Workers’ Compensation Law is defined as an accidental injury or death arising out of and in the course of employment, or any occupational disease or resulting death arising out of and in the course of employment, including disability due to radioactive properties or substances or exposure to ionizing radiation. It does not include those resulting from participation in athletic/recreational activities unless the employee reasonably expected that such participation was a condition of employment. RSA § 281-A:2 ,XI.

Types of Injuries

Accidentall

A compensable injury under the Workers' Compensation Law is defined as an "accidental injury or death arising out of and in the course of employment. RSA 281-A:2, XI It is well settled that "the accidental quality of a compensable injury may consist of an unexpected effect as well as an unexpected cause. That is, even though the cause may have been routine and not accidental, a claim is compensable if the effect on the employee is unexpected." Steinberg I, 119 N.H. at 226, 400 A.2d at 1165.

Infectious Diseases

While there are no NH Supreme Court cases specifically on point, an on the job condition which exposes the employee to an infectious disease process likely would be found compensable if the exposure arose out of and in the course of employment.

Heart

Incidents of heart cases may be found compensable in certain circumstances. Conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable only if contributed to or aggravated or accelerated by the injury. RSA § 281-A:2 ,XI

Defendants bear the burden to rebut the prima facie presumption that heart disease in firefighters is occupationally related, and can do so only by producing evidence that one or more non-occupationally-related factors were more probably the cause of the plaintiff's heart disease than his firefighter occupation; the sufficiency of any such rebuttal evidence is for the trier of fact to determine. RSA 281:2, V-A Cunningham v. Manchester Fire Dep’t, 129 N.H. 232, 525 A.2d 714, 1987 N.H. Lexis 170 (N.H, 1987).

Psychological Injury

While an accidental and work related aggravation of the employee’s mental condition can be compensable per RSA § 281-A:2, XI "injury" or "personal injury" shall not include diseases or death resulting from stress without physical manifestation. The legislature amended RSA 281-A:2 in 2001 to provide that disability resulting from the stress caused by a good-faith disciplinary action is not compensable through the workers' compensation system. "Injury" or "personal injury" shall not include a mental injury if it results from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action, taken in good faith by an employer.

Occupational Diseases

Per RSA 281-A:2, XII (Supp. 2000), "Occupational disease" means an injury arising out of and in the course of the employee's employment and due to causes and conditions characteristic of and peculiar to the particular trade, occupation or employment. It shall not include other diseases or death therefrom unless they are the direct result of an accidental injury arising out of or in the course of employment, nor shall it include either a disease which existed at the commencement of the employment or a disease to which the last injurious exposure to its hazards occurred prior to August 31, 1947.

EXCLUSIONS AND DEFENSES

Course of Employment

The phrase “in the course of” employment refers to whether the injury “occurred within the boundaries of time and space created by the terms of employment” and “occurred in the performance of an activity related to employment.” Murphy v. Town of Atkinson, 128 N.H. 641, 645, 517 A.2d 1170 (1986).

Engaged in the Furtherance of Employer’s Business

The Restatement takes the position that behavior within the scope of employment must be actuated at least in part by an object to serve the employer, Restatement, supra § 228(1)(c), and this view accords with an earlier statement of the New Hampshire rule that the act must have been performed in "furtherance" of the employer's business. Daigle v. City of Portsmouth, 129 N.H. 561, 534 A.2d 689, 1987 N.H. LEXIS 282 (N.H. 1987)

For purposes of determining whether an injury arose in the course of employment so as to be compensable under the workers' compensation law, (while union activities could be classified as personal activities), the supreme court stated that a better analysis would be that a union activity may be "in the course of employment" if it is of mutual benefit to the employee and employer, such a standard being consistent with the court's liberal interpretation of the phrase "in the course of employment." RSA 281:2, V (Supp. 1983). New Eng. Tel. Co. v. Ames, 124 N.H. 661, 474 A.2d 571, 1984 N.H. LEXIS 225, 61 A.L.R.4th 189 (N.H. 1984)

Not in Furtherance of Employer’s Business

Please Refer Engaged in the Furtherance of Employer’s Business

Traveling Employees

The NH Court has held that special travel risks imposed by special duties are properly considered hazards of the employment," R. Galway, New Hampshire Workers' Compensation Manual § 2.04, at 2-8 (1993), and thus arise out of employment, id.; see Heinz, 117 N.H. 214, 371 A.2d 1161 (teacher's death on roadway while traveling home before returning to work for extra duty held to have arisen out of and in the course of employment); Henderson v. Sherwood Motor Hotel, 105 N.H. 443, 201 A.2d 891 (1964) (waitress's roadway death while returning home from extra duty held to have arisen out of and in the course of employment). The traveling employee is generally considered to be within the scope of his employment throughout his sojourn, thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.

1A A. Larson, The Law of Workmen's Compensation § 25.00, at 5-275 (1995) (footnote omitted); see, e.g., Boyce v. Potter, 642 A.2d 1342, 1344 (Me. 1994). The NH Supreme Court noted that this traveling employee rule comports with the test it enunciated for determining the compensability of injuries suffered during activities peripheral to employment. "Where the employment requires travel, the employee is consequently exposed to hazards [he or] she would otherwise have the option of avoiding. Thus the hazards of the route become the hazards of the employment." Appeal of Griffin, 140 N.H. 650, 671 A.2d 541, 1996 N.H. LEXIS 11 (N.H. 1996) citing Whittemore, 129 N.H. at 436, 529 A.2d at 921

Commuting

Many jurisdictions have adopted a "coming and going rule”, to the effect that, for an employee having fixed hours and place of work, an injury is compensable only if it occurs on the employer's premises. See 1 A. Larson, The Law of Workmen's Compensation § 15.11, at 4-3 (1972). The NH court has noted that this "so-called rule has proved to be of doubtful utility and is riddled with various exceptions."Brousseau v. Blackstone Mills, 100 N.H. 493, 494, 130 A.2d 543, 545 (1957); see Henderson v. Sherwood Motor Hotel, 105 N.H. 443, 445, 201 A.2d 891, 894 (1964); United States Fidelity & Guar. Co. v. Gagne, 103 N.H. 420, 174 A.2d 406 (1961). In NH, the question is simply whether the cause of the injury can properly be considered a hazard of the employment. Id.; Brousseau v. Blackstone Mills supra; Manchester v. Huard, 113 N.H. 81, 301 A.2d 719 (1973). An employee's commute is a requirement for most jobs and, therefore, cannot realistically be deemed of mutual benefit to both employee and employer. Harrington v. Brooks Drugs, 148 N.H. 101, 808 A.2d 532, 2002 N.H. LEXIS 97 (N.H. 2002)

No Fixed Place of Work Exception

When employment is “on call”, consisting of service wherever and whenever needed, time and space criteria cannot be applied in the conventional manner with reference to a fixed place of work and fixed hours of employment. But although employment may occur anywhere and anytime, it does not occur without a call or a requirement to perform some activity integrally related to the object of the employment relationship. Murphy v. Atkinson, 128 N.H. 641, 517 A.2d 1170, 1986 N.H. LEXIS 350 (N.H. 1986)

Special Missions, Assignments, or Circumstances Exception

An employee may recover for injuries sustained while travelling to or from his place of employment if he is on a "special duty or errand" for the employer. Heinz, supra at 219, 371 A.2d at 1164; see Henderson v. Sherwood Motor Hotel, 105 N.H. 443, 445, 201 A.2d 891, 894 (1964). A special employment errand normally arises "[w]hen any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or supervisor . . . ." 1A Arthur Larson, The Law of Workmen's Compensation § 27.41, at 5-424 (1990). "special errand" rule dispensing with normal time and space requirements demands that the employee's activity be "integral" to the customary service to the employer . See Heinz v. Concord Union School Dist., 117 N.H. at 218-19, 371 A.2d at 1164; Cook v. Wickson Trucking Co., 135 N.H. 150, 600 A.2d 918, 1991 N.H. LEXIS 151 (N.H. 1991)

Premises and Parking Lot Cases

As a general rule, employment may be said to begin when the employee reaches the entrance of the employer's premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer. Gallienne v. Becker Bros. Shoe Co., 88 N.H. 375, 190 A. 274, 1937 N.H. LEXIS 57 (N.H. 1937)

Related to Employment

Employment-related risks include “all the obvious kinds of injuries that one thinks of at once as industrial injuries and are almost always compensable. These risks include falling objects, explosives, and fingers being caught in gears. Typically, a slip and fall is only attributable to an employment-related risk if it results from tripping on a defect or falling on an uneven or slippery surface on an employer's premises. This category of risks always arises out of employment.

Personal risks, are “so clearly personal that, even if they take effect while the employee is on the job, they could not possibly be attributed to the employment.” A fall caused solely by an employee's personal condition, such as a bad knee, epilepsy, or multiple sclerosis, falls into this category. Injuries falling squarely into this category are never compensable.

Mixed risks involve a personal risk and an employment risk combining to produce injury. A common example of a mixed-risk injury is when a person with heart disease dies because of employment-related strain on his heart. While not all injuries resulting from mixed risks are compensable, the concurrence of a personal risk does not necessarily defeat compensability if the claimant's employment was also a substantial contributing factor to the injury.

Neutral risks are “of neither distinctly employment nor distinctly personal character.” This middle-ground category is the most controversial in modern compensation law. Determining whether an injury resulting from a neutral risk arises out of employment is a question of fact to be decided in each. Injuries caused by neutral risks are by definition not clearly personal or employment-related in nature.

Courts predominantly apply one of three tests to determine whether such an injury arises out of employment. The first is the increased-risk test, which is the most widely utilized of these tests. It examines whether the employment exposed the claimant to a risk greater than that to which the general public was exposed. The second, the actual-risk test, ignores whether the risk faced by the employee was also common to the public. A claimant may recover so long as the employment subjects him to the actual risk that causes the injury. The final test is the positional-risk test. An injury arises out of employment if it would not have occurred but for the fact that the conditions and obligations of employment placed the claimant in the position where he was injured. In other words, under the positional risk test, an injury arises out of employment so long as the obligations of employment place the employee in the particular place at the particular time that he suffers an injury. Appeal of Margeson, 162 N.H. 273, 27 A.3d 663, 2011 N.H. LEXIS 98 (N.H. 2011)

In determining the appropriate test, one should first make a finding regarding the cause of the claimant's injury. If one finds that the injury was caused by a neutral risk, the increased-risk test will apply. However, should the injury result from a non-neutral risk, the claimant must prove both legal and medical causation and the test to be used for legal causation depends upon the previous health of the employee. Steinberg I, 119 N.H. at 231.

The application of the increased-risk test to injuries caused by neutral risks will ensure that a claimant receives compensation only for an injury “arising out of employment.” In other words, the injury must actually result from the hazards of employment and “not merely from the bare existence of employment.” Appeal of Margeson, 162 N.H. 273, 27 A.3d 663, 2011 N.H. LEXIS 98 (N.H. 2011)

Intentionally Self-Inflicted Injury or Death

No compensation shall be allowed to an employee for injury proximately caused by the employee's willful intention to injure himself or injure another. RSA § 281-A:

Employee’s Intoxication

The employer shall not be liable for any injury to a worker which is caused in whole or in part by the intoxication, or by the serious and willful misconduct of the worker. The provision as to intoxication shall not apply, however, if the employer knew that the employee was intoxicated. RSA 281-A:14

Employee’s Violation of Positive Orders of Employer

The employer shall not be liable for any injury to a worker which is caused in whole or in part by the intoxication, as defined in RSA 281-A:2, XII-a, or by the serious and willful misconduct of the worker.

Personal Animosity

If an assault arose from a personal quarrel unrelated to the employment or its environment, the resulting injury did not arise out of the employment. If the friction and strain arises not because of the enforced contacts resulting from the duties of the employment, but rather because the two employees, who met each other on the job, choose to enter apurely private relationship just as they might if they had elsewhere and quarrels develop, they do not arise out of the employment. To be compensable the injury received in a quarrel must result from the conditions and obligations of the employment and not merely from the bare existence of the employment. La Bonte v. National Gypsum Co., 110 N.H. 314; 269 A.2d 634; 1970 N.H. LEXIS 159

Hostile Attacks

Not Applicable

Retirement

The New Hampshire Workers' Compensation Act is intended primarily to afford limited compensation to the injured employee for his loss of earning capacity. Workers' compensation benefits are afforded only for the loss of earning capacity attributable to work-related injury. Where a claimant's lack of earning capacity is due not to his disability, but to his voluntary retirement from the work force, he has not suffered a loss that the Act was intended to remedy. Appeal of Gelinas, 142 N.H. 250, 698 A.2d 1248; 1997 N.H. LEXIS 84

The claimant's average weekly wage for compensation purposes was properly calculated as zero based on his earnings in the weeks preceding the date of disability (i.e., the date of his heart attack) rather than the date of last exposure to the hazards of his employment (i.e., the date of his retirement), which was four years earlier. Appeal of Gelinas, 142 N.H. 250, 698 A.2d 1248; 1997 N.H. LEXIS 84

A work-related causal relationship exists when a retired firefighter develops heart disease within five years of retirement. RSA 281-A:17

General Rule

See above

Incarceration

Benefits are forfeited 30 days after incarceration for the remaining period of incarceration. Labor 510.04; RSA 281-A:3-a. Claimants have a duty to notify the carrier of incarceration per Labor 507.02.

BENEFITS

Calculation of Average Weekly Wage

Rule 506.02(c) provides for AWW computations.

If an employee’s AWW (per RSA 281-A:15) is 30% or less than the state AWW. Weekly compensation is the full amount of the employee’s AWW.

The max weekly compensation rate is no greater than 90% of the employee’s after tax weekly earnings as determined by RSA 281-A:15.

If the employee’s AWW is more than 30% of the state’s AWW, weekly compensation equals 60% of the AWW, or 30% of the state’s AWW, whichever is greater.

However, weekly comp may never exceed 150% of the state’s AWW, as determined by the labor commissioner for the year in which the injury occurred.

The state’s AWW is established by the Department of Employment Security for the preceding calendar year, effective the following July 1st. The max rate may not exceed 100% of the employee’s after tax earnings.

Concurrent Employment: the employee is responsible for requesting that the concurrent employer(s) complete a wage schedule and make it available to the carrier handling the claim.

The combined earnings shall be calculated as follows:

(a.) Allowable sources of wages shall be limited to concurrent employment subject to the New Hampshire workers' compensation law;

(b.) Sources of income that shall not be considered for concurrent employment include:

1. Unreported earnings;

2. Uninsured self-employment;

3. Federal; or

4. Other employment not subject to New Hampshire workers' compensation law;

Total Disability

The test used to determine entitlement to compensation is whether the employee is now able to earn in suitable work under normal employment conditions, as much as he/she earned at the time of injury. Appeal of Normand, 137 NH 617, 631 A.2d 535 (1993).

Temporary total disability is defined by RSA 281-A:28. Permanent total disability is defined by RSA 288-A:28-a (injured worker has reached MMI). Temp total disability payments are capped at 262 weeks for dates of injury after February 8, 1994 (RSA 281-A:31). If partial disability begins after a period of total disability, the period of total disability must be deducted from the 262 weeks. The difference between temporary and permanent disability is of little practical significance, however as there is nothing to limit an employer from petitioning for an extent of disability hearing if it has evidence that the “permanent” disability no longer continues.

Per Section 281-A:29(v), carriers/employers are required to report each compensable injury if total disability payments continue for 6 months from the date of injury, except for those injuries where an employee is entitled to benefits under the Social Security Act, the employee shall be entitled to an adjustment on July 1st. Per Rule 5063(b)(1), the carrier is obligated to advise the employee to apply for Social Security disability benefits, if applicable, prior to the third anniversary of the injury. Employers are required to produce a copy of the denial of their Social Security disability benefits after the third anniversary.

Payments: Carriers are to file a Memorandum of Payment – Form 9 WCA to indicate any payment or change in benefits. Failure to do so shall subject the carrier to a civil penalty per RSA 281-A:42. Attached to the MOP should be the Wage Statement (form 76 WCA). No wage statement is necessary if the disability period is less than 14 days.

Employee Reporting: An employee receiving WC benefits has an affirmative duty to report any changes in his/her employment status or earnings to the carrier. RSA 281-A:53-a. Rule 507.01 outlines the employee’s duties to advise regarding changes in medical condition or employment status.

Voluntary Payments:RSA 281-A:35 provides for recoupment if they were not owed.

Denials within 21 days of the first payment: Denial of comp requires the filing of a memo of denial of WC benefits, Form 9 WCA-1 with the Department and a copy to the claimant within 21 days of notification of a claim or subsequent period of disability. Per Rule 506.02(n)(2) the denial shall set for the reason, the employee’s rights, the name and phone number of the adjuster, and a narrative explanation for the denial.

After benefits have been paid for 21 days, the carrier shall request permission of the department to terminate benefits per RSA 281-A:48 and Lab 510.02 or be subject to fines and interest.

Partial Disability

Pursuant to RSA 281-A:28, if an employee becomes partially disabled, and has not yet reached maximum medical improvement, the employer shall pay a weekly compensation equal to 60% of the difference between the employee’s average weekly wage.

Pursuant to RSA 281-A:31, if an employee becomes partially disabled before reaching maximum medical improvement, the employer is to pay weekly compensation equal to 60% of the difference between what he or she can earn, subject to the maximum compensation rate per RSA 281-A:28. Such compensation does not include the first 3 days of disability, unless disability continues for more than 14 days. Payments do not continue after disability ends, or for more than 262 weeks. If partial disability begins after the period of total disability, the period of total disability must be deducted from the 262 weeks cap.

Permanent Impairment Awards – RSA 281-A:32

Except when death results from injury, in addition to any other benefits, an award shall be paid to employees for the following number of weeks:

(a) Total loss of arm 210

(b) Total loss of hand 189

(c) Total loss of thumb 76

(d) Total loss of index finger 47

(e) Total loss of middle finger 38

(f) Total loss of ring finger 19

(g) Total loss of little finger 9

(h) Total loss of leg 140

(i) Total loss of foot 98

(j) Total loss of great toe 18

(k) Total loss of toe, other 3

(l) Total loss of vision...one eye 84

(m) Total loss of vision...both eyes 300

(n) Total loss of hearing in one ear 30

(o) Total loss of binaural hearing 123

Payment of the scheduled award becomes due upon prompt medical disclosure, after maximum medical improvement has been achieved, regarding the loss or loss of the use of the member of the body. No later than 15 days following such disclosure the employer, or the employer's insurance carrier shall notify the commissioner as to whether it objects to the extent of the loss claimed by the employee, in which case it shall have 30 days to arrange for a medical examination, pursuant to RSA 281-A:38, and request a hearing and determination by the commissioner. Payment of the scheduled award shall be made in a single payment.

In order to determine if a permanent impairment award is owed, the carrier shall:

(1) Contact the injured employee or the employee’s treating physician to advise him or her of the need of a permanent impairment evaluation which shall:

(a.) Be based on the 5th edition of the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association;

(b.) Contain affirmation from the submitting physician that the findings for permanent bodily loss were determined from the Guides to the Evaluation of Permanent Impairment, the 5th edition; and

(c.) Contain medical evidence that the injured worker has reached maximum medical improvement.

(2) Advise the injured worker that if the treating physician does not perform permanent impairment evaluations, the physician may refer the employee to a physician that does perform permanent impairment evaluations;

(3) Pay the cost of the initial permanent impairment evaluation by the treating or referring physician;

(4) Submit “Memo of Permanent Impairment Award” form 10WCA together with the medical reports that support the impairment rating within 15 days of receipt of the physicians report if no objection is filed;

(5) Pay the permanent impairment award within 5 days of receipt of the approved “Memo of Permanent Impairment Award” form 10WCA;

(6) Pay the permanent impairment award based on the physicians report that used the American Medical Association Guides published by the American Medical Association except where RSA 281-A:32 II is more favorable to the injured worker;

(7) Pay the award in a single payment based on the average weekly wage of the employee at the time of the injury;

If upon receipt of the permanent impairment award evaluation, the carrier, self-insurer, employer or third party administrator objects to the percentage of loss given by the treating or referred physician, they shall:

(1) Notify the department of labor within 15 days of receipt of the permanent impairment evaluation;

(2) Arrange for an independent medical examination in accordance with RSA 281-A:32, XI and RSA 281-A:38 within 30 days of their objection to the treating or referring physicians report; and

(3) Request a hearing on the matter.

If upon receipt of the permanent impairment award evaluation, an objection is not filed with the department of labor as in 506.02(k) above, the carrier shall:

(1) Accept the rating filed by the treating or referred physician;

(2) File the “Memo of Permanent Impairment Award” form 10WCA; and

(3) Pay the award in accordance with RSA 281-A:32, XI.

If the carrier, self-insurer, employer, or third party administrator fails to pay the permanent impairment award and comply with (l) (1-3) above, the commissioner shall order payments of the award in accordance with RSA 281-A:43, II.

Vocational Rehabilitation

If an employee is unable to perform work for which he/she has previous training or experience, he/she shall be entitled to such vocational rehabilitation services, including retraining and job placement. If not voluntarily offered by the employer and accepted by the employee, the commissioner (through informal hearing) may refer the employee to a qualified physician or appropriate facility for evaluation rehab suitability. The commissioner may order that the services recommended be provided at the expense of the employer

Reporting Extended Disabilities - Lab 509.03

(a) Carriers and self-insured employers shall file with the department a "Report of Extended Disability", form 74WCA, with copies of the complete medical file and any vocational rehabilitation reports which are available at that time. This report shall be filed as soon as the carrier knows that the employee's disability will extend or has extended for 6 months or more. The department shall review the report and accompanying material.

(b) If the review indicates a need for services, the department shall direct the carrier or self-insured employer to refer the employee to a vocational rehabilitation provider to evaluate the practicability of and need for vocational rehabilitation services and to develop recommendations for the kind of service or training necessary to return the employee to suitable and gainful employment. Such evaluation shall include, but not be limited to, information regarding the employee's prior training, work experience, education, average weekly wage, age, and medical factors.

Vocational rehabilitation training shall not extend for a period of more than one year, except that in unusual cases the period may be extended as is deemed to be reasonable and necessary to accomplish a successful result. If an employee refuses to accept vocational rehabilitation ordered by the commissioner, the employee may lose compensation for each week of the refusal if the commissioner so directs. The Act created a staff of vocational and physical rehabilitation personnel within the workers' compensation division.

A rehabilitation provider shall prepare an individualized written rehabilitation plan on all compensable workers' compensation claims which require 2 or more counseling sessions, vocational evaluations, training, work evaluation, work hardening, or placement. Prior to implementation of the plan, the plan shall be signed by the employer and employee and filed with the commissioner. The commissioner may, within 14 days of the filing of such plan, disallow any plan for rehabilitation that does not appear to be in the best interest of the employee or designed to return the employee to work.

Each rehabilitation provider shall disclose in writing at the first meeting or written communication with the employee, any ownership, interest, or affiliation between the firm which employs the rehabilitation provider and the employer, insurance company, or claims adjusting company, including the nature and extent of the affiliation or interest. Each rehabilitation provider shall also disclose in writing to all parties any affiliation, business referral or other arrangement between the provider and any other party, including any attorney, any physician, or any chiropractor. RSA 281-A:25

Return to Work with Loss of Earnings

See partial incapacity benefits, above.

Diminished Earning Power

Diminished earning capacity rate is established by Labor Department Rule 510.03, which provides that even in the absence of available work opportunity, benefits may be reduced as calculated by formulas set forth in the regulation. The diminished earning capacity imputes an earning capacity, based on the minimum wage for a worker who has not returned to work.

Employer Job Offer

All employers with 5 or more employees shall develop temporary alternative work opportunities for injured employees. If the employee fails to accept temporary alternative work, the employer may petition the commissioner pursuant to RSA 281-A:48, to reduce or end compensation.

Vocational Expert

Persons providing vocational rehabilitation services under RSA 281-A:25 shall be certified in accordance with this Lab Rule 516.

Amputation or Loss of Use/Scarring

There are no provisions for scarring within the NH Act. See also 6.3.1 re: permanent impairment.

Disfigurement

Not applicable

Loss of Sight

The loss of 80 percent or more of the vision of an eye, uncorrected by an eye lens, entitles the employee to the award for the total loss of an eye. RSA 281-A:32 An award shall be paid to employees in amounts provided by RSA 281-A:28 for 84 weeks for total loss of vision in one eye, or 300 weeks for total loss of vision in both eyes. RSA 281-A:32(I)(l)-(m).

Loss of Hearing

An award shall be paid to employees in amounts provided by RSA 281-A:28 for 30 weeks for total loss of hearing in one ear or 123 weeks for total loss of binaural hearing. RSA 281-A:32(I)(n)-(o).

Penalties

Misrepresentation of I/C status:

If the commissioner finds that an employer has misrepresented the relationship Independent Contractor between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500; in addition, such employer may be assessed a civil penalty of $100 per employee for each day of noncompliance. . § 281-A:2(VI) (b) (1)

Failure to procure coverage:

An employer who fails to secure payment of compensation may be assessed a civil penalty of up to $2,500; in addition, such an employer may be assessed a civil penalty of up to $100 per employee for each day of noncompliance. Notwithstanding any provision of law to the contrary, any person with control or responsibility over decisions to disburse funds and salaries and who knowingly failed to secure payment of workers' compensation shall be held personally liable for the payment of penalties under this chapter.

In addition to the assessment of civil penalties, the commissioner may also proceed in the superior court to restrain and prohibit an employer subject to this chapter from conducting business in this state for so long as the employer fails to comply with the provisions of RSA 281-A:5

An insurance carrier which insures an employer and fails to file with the commissioner a notice of coverage within a reasonable period of time as prescribed by rule shall be assessed a civil penalty of up to $50 for each day of noncompliance. RSA 281-A:7

Responsibility of Employer to Provide Vital Information:

(1.) Every employer or self-insurer shall record in sufficient detail and shall report or cause to be reported to the commissioner any injury sustained by an employee in the course of employment as soon as possible, but no later than 5 days after the employer learns of the occurrence of such an injury. If an injury results in a disability extending beyond 3 days, the employer shall file with the commissioner a supplemental report giving notice of such disability as soon as possible after such waiting period, but no later than 7 days after the accidental injury.If any employer fails without sufficient cause as determined by the commissioner to file a first report as set forth in this paragraph, the commissioner shall assess a civil penalty of up to $2,500. 281-A:53

(2.) Any employer who consistently fails to make available to the commissioner and to that employer's insurance carrier the information required by the carrier to make payment of disability compensation in a manner consistent with RSA 281-A:42 shall be assessed a civil penalty of not more than $100.

(3.) All "First Reports of Injury'' shall be filed by the insurance carrier or self-insured employer electronically in a manner prescribed by the department. The commissioner may grant an insurance carrier or self-insured employer a variance if the carrier or self-insured employer documents to the satisfaction of the commissioner that compliance would cause the carrier or self-insured employer "undue hardship'' which, for the purposes of this section, means significant difficulty or expense.

Failure to Pay or Deny - Lab 512.01

The commissioner shall assess civil penalties of up to $2,500.00 against employers and insurance carriers who fail to pay or deny compensation promptly, fail to give the commissioner timely notice of such action, or fail to provide vital information in a timely manner. In determining the severity of the civil penalty, the commissioner shall document violations of the carrier or employer and the fine shall be based on the number of violations of the statute and rules prior to the assessment.

The commission may assess a civil penalty of $2,500 for failure to pay a medical bill or to deny payment, notifying the health care provider, employee and labor department of the denial. §281-A:23V(e)

RSA 281-A:42 Failure to Make Payment of Compensation

•       I. The commissioner may assess a civil penalty of up to $2,500 on any insurance carrier or self-insurer who fails, without sufficient cause as determined by the commissioner, within 21 days after notice of a claim has been received by the insurance carrier or self-insurer or 21 days from the date that benefits are due:

o (a) To make payment of compensation pursuant to RSA 281-A:28 and 281-A:31, and file a memorandum of such action with the commissioner; or

o (b) To deny such compensation; to file a memorandum of such action with the commissioner; and to make a copy of the memorandum available to the claimant. The memorandum shall give a valid reason for the denial and shall advise the claimant of the right to petition the commissioner for a hearing.

o (c) The memorandum described in subparagraphs (a) and (b) shall be on a form prescribed by the commissioner.

•       II. The insurance carrier or self-insurer shall be relieved of the obligation to meet the 21-day time limit of paragraph I:

o (a) If the commissioner has granted an extension of time upon showing cause; or

o (b) If and to the extent that an employer, except a self-insurer, has failed to comply with the requirements of RSA 281-A:53.

•       III. Upon failure of any insurance carrier or self-insurer to comply with either an order for payment of compensation or an assessment of a civil penalty, the commissioner shall recover either or both in a civil action in the superior court of the county of jurisdiction. Anyone owing a civil penalty under this section shall pay it to the commissioner, who shall deposit it into the department of labor restricted fund established in RSA 273:1-b.

•       IV. The commissioner shall submit to the insurance commissioner the record of an insurance carrier who consistently fails to comply with the provisions of this section. If the insurance commissioner should, upon investigation, find the carrier to be in substantial noncompliance, the commissioner shall order compliance. If the insurance carrier shall fail to comply, the insurance commissioner shall suspend or revoke such carrier's authorization to carry out the business of workers' compensation in this state. Likewise, the commissioner shall, as the commissioner deems necessary, suspend or revoke the self-insurer's permit of an employer or group self-insurer who consistently fails to comply with the provisions of this section and any rules adopted to enforce this section.

•       V. Any insurance carrier or self-insurer who fails to file a timely memorandum in accordance with this section and who makes late payment to the employee, shall pay interest to such employee at the same rate as for judgments under RSA 336:1, II from the date the payment was due until it is paid.

•       VI. In addition to paragraph V, any insurance carrier, self-insurer, or claims adjusting company who fails to file either the memorandum of payment of disability compensation or the memorandum of denial of compensation benefits in a timely manner shall be assessed a civil penalty of up to $2,500.

Penalty for False Representation

A person who makes a false statement or representation for the purpose of obtaining any benefit or payment, whether for himself or herself or for any other person, and who does not believe the statement or representation to be true, shall be subject to prosecution and punishment for false swearing, unsworn falsification, or perjury, as the case may be, and, upon conviction, the court may order forfeit all of the person's rights to the compensation sought. In addition to any other remedy, the employer or insurance carrier providing the benefit or payment shall be entitled to restitution

An employer or insurance carrier, or any employee, agent, or person acting on behalf of an employer or insurance carrier, who makes a false statement or representation in the course of reporting, investigating or adjusting a claim for any benefit or payment and who does not believe the statement or representation to be true shall be subject to prosecution and punishment for false swearing, unsworn falsification, or perjury under. RSA 281-A:56

General Penalties:

For violates any provision of the NH WC law or any order issued by the superior court or by the commissioner are set forth in RSA 281-A:57.

281-A:57-a Penalty Collection Powers. –

The department of labor shall cause a certified copy of the notice and demand for payment of such fees, penalties, or interest to be filed in accordance with RSA 454-B:2 and such filing and service of the notice and demand shall constitute a lien upon the real estate, personal estate, property interest, right, or credit to which the notice and demand relates, or which may be subsequently discovered.

Any lien filed shall continue and shall be valid and binding until the liability for the sum, with interest, costs, and attorney's fees is satisfied or 6 years from the date such lien is filed, whichever is earlier.

In the event the liability, interest, costs, and attorney's fees are not satisfied before the end of the original term of the lien, any lien filed pursuant to this section may be renewed for the same term as the original term of the lien by refiling according to the procedures set forth in paragraphs I-. A bankruptcy filing shall not affect the validity of any lien properly filed or renewed in accordance with this section.

Upon neglect or refusal of any person or corporation to pay the fees, penalties, or interest assessed upon them, the department may restrain the personal estate, property interest, right, or credit of such person or corporation.

Interest

In any dispute over the amount of the benefit payable under this chapter which is appealed to the board or Supreme Court or both, the employee, if such employee prevails, shall be entitled to reasonable counsel fees and costs as approved by the board or court and interest on that portion of any award the payment of which is contested. For the purposes of this paragraph, to "prevail'' means:

I. (1) If the employee is the appealing party, the employee shall have received an award for disability benefits, medical, hospital, and remedial care, a scheduled permanent impairment award, vocational rehabilitation, or reinstatement of the employee, which is greater in amount than awarded by the decision which is the subject of the appeal; or

(2) If the appeal is by the employer or insurance carrier, the appealed decision shall have been affirmed. If the insurance carrier appeals multiple issues and the employee prevails on some, but not all, of the issues appealed, the board or court shall apportion and award fees to the employee's attorney only for the reasonable fees apportioned to the issues which were affirmed.

II. Interest shall be calculated at the same rate as for judgments under RSA 336:1, II, and the state treasurer shall periodically transmit the applicable rate to the commissioner in the same manner provided for notice to the administrative office of the courts.

III. Interest on awards for disability indemnity benefits shall be computed: (a) From the date of injury where compensability is in dispute in the first instance and benefits have not been paid; or

(b) From the date of termination or reduction of benefits where the extent of disability is in dispute or where benefits were terminated or reduced for some other reason.

IV. Interest on awards for a scheduled permanent impairment shall be computed from the date when payment is due under RSA 281-A:32, XI.

V. Interest on awards for medical, hospital, and remedial care shall be payable only on amounts which have been paid directly by the employee and not by a third party, in which case interest shall be computed from the date of such payment.

VI. No attorney representing a claimant shall contract for, charge for, or collect a fee for legal service rendered to the claimant at the department level unless the fee has been approved by the commissioner. In determining the amount of the allowable fee, the commissioner shall consider, among other things, the nature, length and complexity of the service performed, the usual and customary charge for work of the like kind and the benefit accruing to the claimant as a result of the legal service performed; provided, however, that when an insurance carrier, self insurer, or payor acting on behalf of such carrier or self insurer disputes the causal relationship of a medical bill to the claimant's injury, or whether a medical bill was required by the nature of the injury, and denies payment of such bill, is after a hearing, ordered to pay or reimburse the bill by the commissioner, the claimant shall be entitled to reimbursement of reasonable counsel fees and costs as approved by the commissioner.

The claimant shall be entitled to reasonable fees and costs pending appeal. In the event that the medical bill is voluntarily accepted less than 7 business days prior to the date of the scheduled hearing, the claimant shall be entitled to reasonable counsel fees and costs as approved by the commissioner unless the carrier can prove a justifiable reason for the delay in accepting the bill. 281-A:44

Costs

See below.

Counsel Fees

The employee is solely responsible for attorney’s fees rendered at the Labor Department level, which must be approved. Attorney's fees for legal services rendered to the claimant at the department level shall be limited to 20% of the actual recovery excluding medical benefits. Lab Rule 511.02. However, the employee is entitled to reimbursement of reasonable counsel fees and costs, as approved by the Commissioner when an insurance carrier disputes a medical bill on causal relationship grounds, or on the grounds that the medical bill is not required by the nature of the injury and the employee has a favorable hearing result.

The claimant is also entitled to reasonable fees and costs pending appeal. The Labor Department has determined that claimant’s counsel has a right to receive reimbursement of reasonable fees and costs from a carrier in cases when the hearing is not actually held, but rather the carrier or self- insured withdraws its denial of a medical bill shortly before hearing. RSA 281-A:44 provides for attorney’s fees and costs should the employee prevail at the Board or Supreme Court (or both) on that portion of any award the payment of which is contested.

Death Benefits

General. If death results from an injury, the employer shall pay burial expenses not to exceed $10,000 and weekly compensation shall be paid to the dependents of the deceased employee in an amount provided by the compensation schedule in RSA 281-A:28.

Death Benefits to Widow/Widower. In the case of the remarriage of a widow or widower without dependent children, compensation payments shall cease. RSA 281-A:26

Death Benefits to Children.The commissioner shall have the power to determine what portion of the compensation shall be applied for the benefit of any children and may order the same paid to a guardian.

Compensation for a dependent child shall continue until the child becomes 18 years of age, or until the child becomes 25 years of age if such child is enrolled as a full-time student in an accredited educational institution. However, if the commissioner determines that the child is self-supporting or if the child marries or is legally adopted, compensation shall cease. A dependent child who is physically or mentally incapacitated shall continue to receive compensation as long as the incapacity continues.

Death Benefits to Other Dependents. Any dependent, except a widow or a widower or children, who, at the time of the injury to the deceased employee is only partially dependent upon that person's earnings shall receive such proportion of the benefits provided for those wholly dependent as the amount of the wage contributed by the deceased to such partial dependent at the time of the injury bore to the total support of the dependent.

Medical Benefits

Selection: Under §281-A:23 an employee has the right to select his or her own physician. The act of applying for WC benefits constitutes authorization to physicians, hospitals and other medical vendors to supply all relevant information regarding the injury to an insurer or an insurer’s representative. The request should state the following: “this request is strictly limited to medical information relevant to the occupational injury or illness that underlies the patient’s workers’ compensation claim, including any past history of complaints of, or treatment of, a condition similar to that presented in the claim.”

§281-A:23V(d) requires medical reports relating to the condition at issue to be filed with the commissioner within 15 days after receipt of such a report, and must be provided to the opposing party at least 5 days prior to the hearing at which it is offered.

Medical payments: Are to be made within 30 days of presentation of an invoice or statement – see Rule 506.2(h). Since there is no fee schedule, the employer must pay the full amount of the health care provider's bill unless the employer or employer's insurance carrier can show just cause as to why the total amount should not be paid. Effort shall be made to resolve any dispute as to the reasonable value of service prior to applying to the commissioner for resolution of such a dispute. Whenever a dispute arises between the employer and care provider, the commissioner shall have exclusive jurisdiction to determine the reasonable value of such service or care.

Following the commissioner's determination, any interested party may petition for a hearing and all interested parties shall be entitled to notice and hearing if it is determined that all reasonable efforts to resolve the dispute have failed. The commissioner or the commissioner's authorized representative shall make a finding as to the reasonable value of such services or care rendered, and such findings shall be final.

506.02(q) outlines the procedure for denial of a medical bill. The carrier/employer must raise all reasons for denial of medical bills at the time of the initial denial.

Pre-Approval of Medical Procedures: See Labor 507.05.

When pre approval of a medical procedure is required, the injured employee shall obtain a written statement from the medical provider containing the following:

(1) The nature of the proposed treatment;

(2) How the proposed treatment is required to address problems that are the result of the work-related injury;

(3) The anticipated benefit of the treatment; and

(4) An estimate of the cost for the treatment.

The carrier then has 20 days to evaluate the request and decide if it will approve the treatment. If the carrier denies the treatment or does not respond within the stated time frame, the injured worker shall contact the department, in writing, to request a hearing.

Refusal of Medical Treatment

There are no provisions within the New Hampshire Workers’ Compensation Act with regard to an employee’s refusal to seek medical treatment. However the court has dealt with the issue by examining whether the employee's conduct in refusing to submit to the treatment so arbitrary and unreasonable that the continued disability could be said to have resulted from his own misconduct, per RSA 281-A:14. See Cate v. M.S. Perkins Mach. Co., 102 N.H. 391, 157 A.2d 778, 1960 N.H. LEXIS 38 (N.H. 1960)

The court went on to note that where an injured employee had previously suffered many unfortunate medical and surgical experiences, his refusal to submit to major surgery under all the circumstances of the case was not so arbitrary and unreasonable that his continued disability could be said to have resulted from his own misconduct.

SUBROGATION OR CREDIT

7.1 General Rule -281-A:1:

The employer, or the employer's insurance carrier, shall have a lien on the amount of damages or benefits recovered by the employee, less the expenses and costs of action, to the extent of the compensation, medical, hospital, or other remedial care already paid or agreed or awarded to be paid by the employer, or the employer's insurance carrier, under this chapter, less the employer's or the employer's insurance carrier's pro rata share of expenses and costs. No settlement by an employee against such third person shall be binding until approved by the commissioner or, if an action has been brought, by the court or arbitration proceeding in which such action is pending or to which the writ is returnable.

If the employer or the employer's insurance carrier recovers from such other person damages or benefits, after expenses and costs of action have been paid, in excess of the amount of the lien as defined in this section, then any such excess shall be paid to the injured employee or, in case of death, to the administrator of the employee's estate for distribution in accordance with the provisions of RSA 556:14.

Lab 511.03 Third Party Liability.

(a) Except for cases resolved in the courts, employees, employers and/or carriers shall, upon recovering damages from a third person under RSA 281-A:13, prepare in full and file for the commissioner's approval a "Release and Settlement of Claim", form WC-3PR-1.

(b) The reverse side of the form shall show the full amount of settlement from which there shall be deducted the total amount of attorney expenses and costs of action and the amount of employer/carrier's lien.

(c) The computation shall show the employer/carrier's pro rata share of expenses and costs of action, the employee's pro rata share of expenses and costs of action, the employer/carrier's net lien, and the net amount of the settlement.

(d) The form shall be completed in full and it shall not be required to be notarized unless required by the third party or its insurance carrier.

(e) The commissioner shall review the completed form to assure that the figures are correct and that the lien or compromised lien of the carrier/employer is satisfied. The commissioner shall approves the third party lien.

Attorney’s Fee

In approving a proposed settlement in a liability action subject to a workers' compensation lien, the court is charged with making provisions for the payment of lien after expenses and costs of action have been paid, and is also charged with dividing the obligation for expenses and costs of the action, including attorneys' fees, between the employer or its insurance carrier and the employee as justice may require. RSA 281-A:13, III(a), IV. Gelinas v. Sterling Indus. Corp., 139 N.H. 14, 648 A.2d 465, 1994 N.H. LEXIS 98 (N.H. 1994)

Motor Vehicle Accidents

An automobile insurer is not an “insurance carrier” within the meaning of the Workers' Compensation Law. Therefore, the Workers' Compensation Law does not bar an action for underinsured motorist benefits against an employer's automobile insurer if the underinsured motorist is neither the insured's employer nor a co-employee. Hull v. Town of Plymouth, 143 N.H. 381, 385 (1999);Matarese v. New Hampshire Mun. Ass’n Property Liability Ins. Trust, Inc. 147 N.H. 396, 398 (2002).

When an employer is the policy holder and both the victim and the tortfeasor are its employees, the employer's automobile liability policy is not required to provide liability coverage for an employee injuring another employee in the course of their employment, as the injured employee would be fully compensated for his or her injuries under the Workers' Compensation Act. RSA 264:14, 264:15. Trombley v. Liberty Mut. Ins. Co., 148 N.H. 748, 813 A.2d 1202 (2002).

Health Benefits

Where an injured worker's medical expenses are paid by employer's group health carrier prior to a court decree in workmen's compensation proceeding, and thereafter expenses are paid by employer, employee is not entitled to interest payment on medical care benefit had received. RSA 281:21, 281:37–a; Corson v. Brown Products, Inc., 119 N.H. 20, 397 A.2d 640 (1979)

Credits

Per RSA 281-A:36, no savings or insurance of the injured employee shall be taken into consideration in determining the compensation to be paid, nor shall benefits derived from any source other than the employer be considered in fixing the workers’ compensation benefit amount.

ATTORNEYS

No special certification is required for an attorney to practice in the area of workers’ compensation.

CLAIMS PROFESSIONALS

Any insurance carrier, self-insured employer or employer group, or claims adjusting company handling workers' compensation claims in NH shall utilize a claims adjuster licensed in New Hampshire and such claims adjuster shall maintain suitable facilities in this state. Every 2 years, at least 60 days prior to the renewal date of their license, persons holding a license to adjust workers' compensation insurance claims shall certify to the department of insurance that they have completed courses of instruction, preapproved by the insurance department, providing a minimum of 20 hours, 10 hours of which shall inform the licensee of the current workers' compensation laws of this state, to enable the licensee to engage in the business of a workers' compensation adjuster fairly and without injury to the public and to adjust all claims in accordance with the workers' compensation laws of this state and 10 hours of which shall be in any other preapproved multi-line claims adjusters course of instruction. 281-A:63

It is strongly advised that any claims professional review the Department of Labor Rules, in particular Rule 506 (reprinted in part, below), which addresses the RESPONSIBILITIES OF CARRIERS:

Claims Processing:

(a) Carriers shall familiarize themselves with the provisions of the WC statute and the DOL rules.

(b) Carriers shall obtain and maintain a supply of mandated state forms which they shall supply to their insured’s and their own claims offices.

(c) Carriers shall keep their insured’s informed of the current address and telephone number of their nearest claims office.

(d) Carriers shall provide facilities within NH to service claims. In the event they elect to substitute an unaffiliated adjustment service, or a third party administrator, they shall confirm that the third party administrator is licensed by the state, and they shall delegate sufficient authority to comply with the statute and these rules.

(e) Carriers shall process all claims as quickly as possible. After receiving the first notice of a claim, the claim shall be paid or denied within 21 days (per Lab 506.02)

(f) Carriers shall promptly and critically review employers' supplemental reports for the purpose of making a determination as to compensable disability within 21 days of receipt of the report.

(g) Also see specific rules for IMEs at 6.15, above. Lab Rules 506.01

Lab 506.05 Adjustment of Claims.

(a) For the purposes of RSA 281-A:63, I, any licensed New Hampshire insurance adjuster or adjusting company handling workers' compensation claims within the state of New Hampshire shall:

(1) Maintain a business office in the state of New Hampshire on a full time basis;

(2) Be open during the hours of 9 a.m. and 4 p.m.; and provide a toll-free number for injured employees; and

(3) Have the capacity to facilitate the claims handling process.

(b) The utilization of an independent claims adjuster or claims adjusting company on behalf of an insurance carrier or self-insured that maintains facilities within the state of New Hampshire in accordance with Lab rule 506.05(a) shall be acceptable for the purposes of this rule.

LITIGATION AND APPEAL

Hearings before Labor Department

Hearing officers are not bound by the rules of evidence or by technical or formal rules of procedure. However, they may exclude irrelevant, immaterial or unduly repetitious evidence. Non-medical evidence must be disclosed no later than two business days prior to the scheduled hearing. All written evidence shall be compiled, indexed, tabbed, and paginated in chronological order within each tabbed section. The final compilation shall be submitted to the hearing officer at the time of the hearing. Medical testimony is generally presented in the form of records and letters. If medical witnesses are to be presented, the opposing party should be notified at least two business days before the date of the hearing. Depositions are only allowed upon agreement of all parties, and shall be completed and a transcript submitted at least 7 days prior to hearing. The party having the burden of proof shall give its statement last. If the hearing officer needs an additional submission or memo, it shall be made within the time frame allowed by the hearing officer.

It is important to raise all potential defenses and arguments at the initial Labor Department hearing. Rule 204.1 requires the issues be specified at least 14 calendar days prior to hearing. Issues may be added at hearing with consent of the parties. Therefore, it is imperative that all involved parties review the hearing notice for accuracy of the listed issues. Appeal from the labor department decision is limited to the issues addressed at the time of the hearing.

Mandatory Prehearing Disclosure of Witnesses and Exhibits. (Lab 524.03) At least 5 days before the hearing, the parties and intervenors shall provide to the other parties and intervenors:

(a) A list of all witnesses to be called at the hearing containing the names of the witnesses, their addresses and their telephone numbers;

(b) Brief summaries of the testimony of the witnesses to be called;

(c) A list of documents and exhibits to be offered as evidence at the hearing;

(d) A copy of each document to be offered as evidence at the hearing; and

(e) An offer to allow the inspection of non-documentary exhibits to be offered as evidence at the hearing at times and places of convenience to the parties and intervernors.

If the hearing will extend beyond an hour, the department requires notification so the appropriate time can be allotted. Parties may attend the hearing by conference call, or by video. Testimony may also be presented by deposition. Affidavits and statements are normally not admitted with the exception of medical reports.

Decisions:are due no later than (30) days after the hearing. Such decisions shall be final 30 days after the written decision is rendered, unless an appeal is taken to the Compensation Board of Appeals. Within (10) days of a hearing officer’s decision, a party may write to the Commissioner and request reconsideration of the decision where there is clearly a mistake, or to obtain clarification of the decision. However, it does not postpone the 30 day period in which to appeal to the Compensation Appeals Board.

Historically, the Department of Labor has allowed carriers to stay the payment of medical bills ordered paid by the hearing officer pending an appeal of that decision. Such stay must be granted by the hearing officer. Payment of weekly compensation and entitlement to medical and vocational benefits shall begin or continue as soon as possible, but no later than 5 working days after a decision’s effective date, and shall not be terminated except in accordance with the terms of the decision or a final court determination.

Workers’ Compensation Appeals

Compensation Board of Appeals

In 1990, the Legislature established the Compensation Board of Appeal. Appeals otherwise would have been taken to the Superior Court under the old scheme. The Appeals Board is made up of 33 members, 11 of whom must be attorneys. All must have at least 5 years of experience in the field of workers’ compensation. Terms are for 4 years.

Its de novo review is limited to issues raised in the Department of Labor proceedings being appealed. An appeal of one issue within a decision which deals with multiple issues does not allow the parties to re-litigate all issues. One cannot rely on an appeal filed by the other party, either. If a timely notice of appeal is filed by one party, the other may cross appeal within 10 days.

An appeal must be filed within 30 days after the decision by the commissioner or the hearing officer. An appeal will be scheduled within 6 weeks and like hearings at the department level, continuances are discouraged. Pre-hearing conferences are used to determine and allow for orderly scheduling.

The panel is not bound by common law or statutory rules of evidence for procedure. In general, any probative and relevant evidence will be received unless it is determined by the Chair that the evidence is irrelevant, immaterial or repetitious. Nevertheless, it is the practice of the panel to exclude hearsay evidence. Depositions must be completed so that transcripts are available at least 14 calendar days before the scheduled hearing.

Parties may submit findings of facts/rulings of law to the Board, but must provide a copy to opposing party at least 10 days prior to the start of the hearing. The parties shall make sincere efforts to agree on as many as the proposed findings a possible, and shall inform the panel as to which proposed findings are agreed upon and which are contested.

Labor Rule 206 allows a party to apply for a re-hearing within 30 days of the final order or decision of the panel. The motion shall set forth every ground which is claimed that the decision or order complained of is unlawful or unreasonable. No appeal is allowed unless the appellant made an application for re-hearing.

Supreme Court

Appeals to the New Hampshire Supreme Court are made pursuant to RSA 281-A:43,I (c). Petitioners must raise all relevant arguments in their initial brief, or they will be deemed waived. The Supreme Court’s review will be limited to errors of law, as well as whether the Board’s order is patently unjust or unreasonable. As long as competent evidence supports the Board’s decision, the Court will not reverse. The appealing party has the burden of demonstrating that the Appeals Board decision was erroneous.

SETTLEMENT

Mandatory Mediation

There are no mandatory ADR provisions or informal settlement conferences provided for in the NH Act.

Lump Sum Settlements

In cases where there have been at least 12 months of continuous disability, or where the best interests of all concerned will be served, lump sum agreements may be approved by the commissioner. However, in no event shall the medical provisions be lump summed. The costs of vocational rehabilitation services may be lump summed provided the lump sum agreement specifically sets forth the portion of the lump sum amount attributable to vocational rehabilitation services. Such sum shall be held in escrow by the employer or insurance carrier and shall be paid to the provider of the vocational rehabilitation services for services incurred by the claimant.

Any lump sum agreement which proposes to include the costs of vocational rehabilitation services shall also specify the nature of the vocational rehabilitation services to be provided to the claimant and shall require the claimant to commence such vocational rehabilitation services within 6 months of the approval of the agreement. The employer and the insurance carrier shall not be liable for vocational rehabilitation services incurred if the claimant fails to commence use of vocational rehabilitation services within 6 months after approval of the lump sum agreement, unless the period is extended by the commissioner for good cause. RSA 281-A:37 see also 515.09 Request of Lump Sum Settlement and Lab 515.15- The Release and Settlement of Claim Computation..

INSURANCE

General Rule

Securing Payment of Compensation. – An employer, or group or association of homogeneous employers, subject to this chapter shall secure compensation to employees in one of the following ways:

(1.) By insuring and keeping insured the payment of such compensation with a company licensed to write workers' compensation insurance and filing with the commissioner evidence of such coverage as the commissioner deems appropriate.

(2.) By insuring and keeping insured the payment of compensation to domestic employees with a company providing workers' compensation insurance in accordance with RSA 281-A:6.

(3.) By furnishing to the commissioner satisfactory proof of financial ability to pay compensation directly to an employee when due. 281-A:5

Particular Requirements

Exclusion of Executive Officers and Members of Limited Liability Companies. Any corporation or limited liability company may elect to exclude up to 3 executive officers or members from the compulsive coverage requirements under this chapter. . No exclusion shall be valid unless properly filed with the commissioner. . Those executive officers and limited liability company members who elect to be excluded shall not be considered uninsured employees of a subcontractor under RSA 281-A:18

General Rule Where Employer is Uninsured

An employer who fails to comply with the provisions of RSA 281-A:5 by not securing payment of compensation may be assessed a civil penalty of up to $2,500; in addition, such an employer may be assessed a civil penalty of up to $100 per employee for each day of noncompliance. The penalties shall be assessed from the first day of the infraction not to exceed one year.

Any person with control or responsibility over decisions to disburse funds and salaries and who knowingly failed to secure payment of workers' compensation shall be held personally liable for the payment of penalties. RSA 281-A:7

In addition to the assessment of civil penalties, the commissioner may also proceed in the Superior Court to restrain and prohibit an employer subject to this chapter from conducting business in this state for so long as the employer fails to comply with the provisions of RSA 281-A:5

PART Lab 309 CIVIL PENALTIES FOR NON-COMPLIANCE

Lab 309.01 Application.

(a) The commissioner shall assess civil penalties against employers who fail to secure compensation to employees pursuant to RSA 281-A:7, as follows:

(1) In determining the severity of the civil penalty, the commissioner shall consider the prior history of compliance with the statute and with the rules and orders of the department;

(2) Penalties shall be on a graduated basis of $100, $250, $500, $1,000, and $2,500 based on documented non-compliance; and

(3) The employer shall be further assessed a penalty of $100 per day per employee for each day of non-compliance.

(b) The commissioner shall assess a civil penalty of $10.00 per day on insurance carriers who fail to provide proper notice of coverage to the department. This fine shall begin on the date of written notification by the department to the carrier.

Damages by Action at Law Where Employer is Uninsured - RSA 281-A:7

An employee of an employer failing without sufficient cause as determined by the commissioner to comply with the provisions of RSA 281-A:5, or dependents of such employee if death ensues, may file an application with the commissioner for compensation in accordance with the terms of this chapter. The commissioner shall hear and determine such application for compensation in like manner as other claims. The employer shall pay the compensation so determined to the person entitled to it no later than 10 days, excluding Sundays and holidays, after receiving notice of the amount of compensation as fixed and determined by the commissioner. The commissioner shall file an abstract of the award in the office of the clerk of the superior court in any county in the state. The clerk of that court shall docket such abstract in the judgment docket of that court, and such abstract shall be a lien upon the property of the employer situated in the county for a period of 8 years from the date of the award. The commissioner shall instruct the sheriff of the county to levy execution as soon as possible thereafter, but no later than 8 years, in the same manner and with like effect as if the award were a judgment of the superior court.

As an alternative to the procedure afforded above, an employee of an employer failing to comply with the provisions of RSA 281-A:5, or dependents of that employee if death ensues, may pursue any available remedy at law, free of the waivers and immunities conferred by RSA 281-A:8.

Guaranty Funds

New Hampshire has adopted legislation which creates a state insurance guaranty association as non-profit entity. RSA 404-B.1, et seq; Mo. Rev. Stat. §§ 375.771, et seq. 1. The express purpose of New Hampshire’s Insurance Guaranty Association Act is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.

New Hampshire’s insurance guaranty monies are funded by assessing member insurers within each state. RSA 404-B:8, I(c); Mo. Rev. Stat. § 375.775, I (3). In New Hampshire, the insurer passes the costs of these assessments onto the insured. RSA 404-B:16.

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