Handwritten Notes Failed to Preserve Insurer’s Second Injury Fund Claim, N.H. Supreme Court Holds

Case File

While an insurer included handwritten notations on two memoranda of payment identifying concurrent employment wages, the New Hampshire Supreme Court found the notations insufficient to constitute notice of a potential claim against the Special Fund for Second Injuries.

Case

Appeal of Comm’r of N.H. Dep’t of Labor, No. 2025-0416 (N.H. 09/03/26)

What Happened?

An employee was injured while working for a company. She was concurrently employed by another employer at the time of the injury. The company's insurer paid the employee workers' compensation benefits based upon her combined weekly wages from the two employers for whom she worked at the time of her injury.

The case did not concern whether the carrier was substantively entitled to reimbursement for concurrent-employment benefits. Rather, the dispute focused on whether the carrier satisfied the statute's notice requirement for pursuing a claim against the Fund.

The insurer filed memoranda of payment with the New Hampshire Department of Labor documenting its payment of the employee's workers' compensation benefits. Two of the memoranda contained handwritten notes indicating that the employee's average weekly wages were based upon combined wages of the company and the other employer and providing the AWW the employee was paid by each employer.

The insurer later applied for reimbursement from the Special Fund for Second Injuries. The Fund denied the insurer's request because the insurer failed to notify the Commissioner of any possible claim against the Fund within 100 weeks after the injury, per state law requirements. The Fund rejected the insurer's assertion that the memoranda of payment provided the Commissioner with notice of its possible claim against the Fund.

Following a hearing at the DOL, a hearing officer concluded that the record contained no evidence that the insurer had notified the Commissioner of its possible claim. The Compensation Appeals Board reversed, finding that it "should be assumed" the DOL employee who received the memoranda of payment "would know or should have known that the double Memos were being submitted for purposes" of a claim against the Fund "even if he or she did not work directly in the Second Injury Fund department."

The insurer appealed to the New Hampshire Supreme Court.

Rule of Law

In New Hampshire, where the employee is employed as of the date of injury concurrently by two or more employers and is disabled from any such employment, AWW shall be computed on the basis of the weekly wages received by the employee from all such employers at the time of the injury. The employer in whose employment the employee was injured shall be liable in the first instance for payment of all benefits. Any additional compensation resulting from the increase in AWW due to the employee’s concurrent employment shall be reimbursed by the Fund.

The statute creating the Fund details that an employer or carrier shall notify the labor commissioner of any possible claim against the special fund as soon as practicable, but in no event later than 100 weeks after the injury or death.

What the New Hampshire Supreme Court Said

According to the New Hampshire Supreme Court, the insurer did not provide the Commissioner with timely notice of its possible claim against the Fund.

In rejecting the insurer's argument that the memoranda satisfied the notice requirement under state law because they contained handwritten notes saying that the employee's AWW was based upon her combined wages from the company and the other employer, the court found that the insurer ultimately dropped the ball.

"The statute places the onus on the employer or carrier to notify the Commissioner that it may have a claim against the Fund," the court wrote. "It does not obligate the Commissioner to attempt to intuit from filings made for other purposes that the employer or carrier may seek reimbursement from the Fund."

According to the court, the memoranda only notified the Commissioner that the employee had been paid workers' compensation benefits and did not give notice that the insurer intended to make a "possible claim" against the Fund.

Verdict: The CAB's order was reversed and remanded.

Takeaway

In New Hampshire, information contained in routine workers' compensation filings may not satisfy the statutory requirement to notify the Commissioner of a potential Second Injury Fund claim. Carriers must provide clear notice that they may seek reimbursement, rather than relying on the DOL infer a claim from concurrent-employment wage information.

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