Employers can appeal certain workers' comp denials : NH Supreme Court

Michael Cousineau, The New Hampshire Union Leader, Manchester
·2 min read

Jul. 16—Eight employers — including BAE Systems, Shaw's Supermarkets and the city of Manchester — won a victory in the state Supreme Court on Tuesday that gives them the right to challenge certain workers' compensation decisions.

The court compelled the state Department of Labor to offer employers a department-level hearing to allow them to challenge denials of their applications for reimbursement from a state fund covering people with second injuries.

That fund dispensed more than $16 million during the last fiscal year.

"When a controversy arises as to whether an employer or its insurance carrier is either ultimately responsible for the payment of compensation or is due reimbursement from the fund, RSA 281-A:43, I(a) provides for review of a denial of reimbursement," the court said in its unanimous decision.

"To construe the statute otherwise — to provide no right to a contested hearing — as the (Department of Labor) would have us do, would subvert the purpose of the statute," said the five-page decision.

The state's second injury fund "gives employers an opportunity to limit their compensation costs in the event that an impaired employee sustains a workers' compensation injury which leaves him/her more disabled than the same injury would leave a non-impaired worker," according to the Department of Labor website.

In an email, Labor Commissioner Kenneth Merrifield said the revolving fund does "assess its costs on the workers' compensation insurance carriers and self-insured entities that pay any workers' compensation claims in New Hampshire.

"The carriers and self-insured entities that participate by submitting approved claims are reimbursed for certain worker compensation costs based on the eligibility criteria and formula provided" in state law.

During the fiscal year that ended last month, the fund paid out more than $16.3 million to 75 insurance carriers or self-insured entities for a variety of accepted claims, according to the commissioner.

"Technically, there is no specific cap on the amount that might be paid for an individual case," Merrifield said.

Asked for comment on the ruling, Merrifield said: "As we have just received the decision, our legal counsel is currently reviewing it."

The Attorney General's Office represented the Department of Labor.

"The State is currently reviewing the court's order and will consider next steps," said Michael Garrity, director of communications and legislative affairs for the state Department of Justice.

Manchester attorney Gary Harding, who argued for the employers before the court, said he had no comment.

Challenging the state were the City of Manchester, Walgreen Eastern Co., Inc., Shaw's Supermarkets, Inc., BAE Systems, Inc., Phillips Exeter Academy, People's Linen Services, LLC, North Country Independent Living, Inc., and Highliner Foods USA, Inc.

Backing the employers were Chief Justice Gordon J. MacDonald, Senior Associate Justice James P. Bassett and Associate Justice Patrick E. Donovan. Associate Justice Anna Barbara Hantz Marconi sat for oral argument but subsequently disqualified herself and didn't participate in further review of the case.