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Bar News - August 23, 2013


Workers’ Compensation & Personal Injury: Lesser Used Provisions in the NH Workers’ Compensation Law

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The New Hampshire Workers’ Compensation Law contains 70 sections, most of which are not invoked in the course of a typical claim. What follows is a brief discussion of some of those lesser-used provisions in the law.

Incarceration of Certain Persons (RSA 281-A:3-a)

An employee who becomes incarcerated pursuant to a conviction forfeits any right to workers’ compensation indemnity benefits 30 days after becoming incarcerated for the remaining period of incarceration. This provision affects only indemnity benefits. The rationale for the suspension is that the employee is incapable of working, not because of disability from injury, but because of his or her criminal act.

Labor Department Regulation 510.04 [Forfeiture of Benefits upon Incarceration] addresses the manner by which benefits are suspended. Non-attendance at medical appointments or un-cashed indemnity checks could provide the basis by which an employer or carrier learns of incarceration.

Employee’s Fault (RSA 281-A:14)

An employee’s claim for workers’ compensation benefits may be defeated if the employer can demonstrate that the employee was at fault for causing his injuries. This affirmative defense removes employer liability when an injury “is caused in whole or in part by the intoxication… or by the serious and willful misconduct of the worker.”

To be intoxicated, as defined under RSA 281-A:2, XII-a, means by alcohol or a controlled drug, as defined in RSA 318-B:1; however, it is not a defense to an injury if the employee had a prescription for the controlled drug and used it in accordance with the instructions for said drug. Also, this defense is not applicable if the employer “knew” that the employee was intoxicated. Thus, to avoid liability, the defense must establish that the employee was intoxicated, that the intoxication caused (in whole or in part) the injury and that the employer did not know the employee was intoxicated at the time the injury occurred.

Serious and willful misconduct is harder to establish and is generally understood to be something beyond a minor violation of company policy. Even in cases involving fights between employees and so-called “horseplay,” the New Hampshire Supreme Court has ruled that a tense work environment is part of the job and, therefore, the resulting injury is compensable.

Contractor’s Liability for Subcontractors (RSA 281-A:18)

When a contractor subcontracts some or part of a job, the contractor must pay workers’ compensation benefits to an injured employee of a subcontractor unless the subcontractor has purchased workers’ compensation insurance to cover its own employees. This protects an injured employee from an intentionally or inadvertently uninsured subcontractor. The injured employee thus has a source of recovery if the direct employer did not secure the necessary insurance. A contractor obligated to pay benefits may also recover the payment and necessary expenses from the uninsured subcontractor.

The NH Supreme Court interpreted this provision in Appeal of Harleysville Insurance Company, 156 NH 532 (2007). Harleysville filed an appeal to the New Hampshire Supreme Court after the Compensation Appeals Board (CAB) concluded that it was liable for the payment of workers’ compensation benefits through a homeowner’s policy.

The relevant facts are that a homeowner hired a painter who recommended a roofer to do some work on the homeowner’s home. The roofer completed only some of the roofing work he had been hired to do. The painter then recommended a second roofer who was willing to complete the job. The homeowner hired this second – uninsured – roofer who brought in an assistant who was injured in a fall from the roof. The CAB ruled that the homeowner was the “contractor” and that the second roofing company was her “subcontractor” thus passing liability onto Harleysville under RSA 281-A:18. The Supreme Court reversed, holding that RSA 281-A:18 requires that there be two distinct contracts: an initial or primary contract, and a second or sub-contract. Here there was only one roofing contract, the one between the homeowner and the second roofer.

“There was no initial contact that the homeowner then subcontracted in whole or in part to a subcontractor. Therefore, there is no contractor to subcontractor relationship as contemplated by RSA 281-A:18, and no liability for [roofing assistant’s] injuries may be transferred to [the homeowner].”

Compensation for Death (RSA 281-A:26)

When death results from a compensable injury, indemnity benefits are paid to the dependents of the decedent employee.

Usually, benefits are paid to the widow or widower for his or her benefit and for the benefit of dependent children. The NH Commissioner of Labor determines how the compensation payments are to be distributed and can order guardianships for children.

If a widow or widower without dependent children re-marries, death benefits cease. If a widow or widower with dependent children re-marries, the remaining benefits shall be payable as the Commissioner orders for the use and benefit of the children during their dependency.

Compensation for a dependent child ends when the child reaches 18 years old, or at age 25 if he or she is enrolled as a full-time student in an accredited institution; however, if the Commissioner determines that the child is self-supporting, has married, 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, regardless of age. The employer or insurance carrier must also pay burial expenses up to $10,000.

Examination by Physician [on Referral From Commissioner] (RSA 281-A:47)

Independent medical evaluations are governed by RSA 281-A:38 and 39; however, employers and employees may ask the Commissioner to arrange an examination, in which case the doctor’s report is sent directly to the Department of Labor.

The party requesting this referral must pay the medical fee but, if the employee makes the request and the employee prevails on the issue at hand, the expense of the exam shifts to the employer. If the Commissioner determines that additional medical evidence is required, he may refer the employee for the examination but then the state will be responsible to pay the doctor, unless the Commissioner determines that the employer should pay (which one would expect in most cases).

The Commissioner ordinarily will accept as “determinative” the outcome of the evaluation unless, after hearing, the Department finds that these results do not accurately reflect the employee’s condition. In practice, this section is virtually never used, but it is conceivable, in a complicated case, that the Department could seek a third opinion for additional guidance.

Penalty for False Representation (RSA 281-A:56 & 57)

Someone who makes a false statement for the purpose of obtaining benefits, not believing the statement to be true, is subject to prosecution for false swearing, unsworn falsification, or perjury. Upon conviction, a judge may order the person to forfeit all rights to the compensation sought. The employer or insurance carrier shall be entitled to restitution for benefits paid.

Conversely, an employer or insurance carrier guilty of making a false statement in reporting, investigating or adjusting a claim shall also be subject to prosecution for false swearing, unsworn falsification, or perjury. Under RSA 281-A:57, “any person” who violates any provision of RSA 281-A or any order issued by the Superior Court or by the Commissioner under RSA 281-A shall be guilty of a violation or of a misdemeanor, depending upon their status.

Criminal prosecutions arising out of workers’ compensation claims are quite rare, partially because it can be difficult to prove a knowing false statement as opposed to a statement of opinion regarding one’s injury, and also because seeking criminal penalties may be affected by prosecutorial discretion.

Although these sections are rarely invoked or applied, they can be useful and help complete the landscape of workers’ compensation law in New Hampshire.


Rick Weinstein is an attorney with Bernard & Merrill in Manchester. He practices workers’ compensation, general liability, and insurance law.

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