New Hampshire court rejects insurer's late second-injury claim

By Daniel Okafor

EBIS Inc. filed its reimbursement claim on August 29, 2022, more than 100 weeks after the worker’s January 7, 2020 injury, and the New Hampshire Supreme Court rejected it.

What reimbursement was EBIS seeking?

The high court upheld the state Department of Labor’s denial of EBIS Inc.’s claim against the New Hampshire Special Fund for Second Injuries. EBIS acted as insurer for BAE Systems, Inc., where the worker suffered her injury while also working for another company. EBIS had already paid her full workers’ compensation benefits.

Under state law as the court described it, the employer and insurer where the employee was injured must pay all benefits first. The Special Fund reimburses the share tied to concurrent employment, but only if a claim is filed within 100 weeks of the injury. The high court treated that condition as decisive.

Why EBIS relied on its payment records

EBIS argued that the Memoranda of Payment it filed with the DOL in 2020 and 2022 supplied the required notice. The DOL administers the Special Fund. Two of those records contained handwritten notes stating that the employee’s average weekly wages were based on combined wages from BAE and another employer.

EBIS argued that the wage annotations alerted the DOL to the possibility of a fund claim. Its reimbursement claim nevertheless arrived on August 29, 2022, after the 100-week period had run from the January 7, 2020 injury.

Why the DOL rejected the claim

The DOL first denied EBIS’s claim because the deadline had passed and the memoranda did not provide enough notice. The fund maintained that the memoranda “are only in regard to the insurance carrier’s obligations to make indemnity payments to the injured worker, without reference to claim against the Special Injury fund.”

The fund’s coordinator was equally direct: “there is nothing in the Memos of Payment that also notify of a potential claim against the Special Injury Fund.” That reasoning treated the payment records as benefit documentation, not as an insurer’s request for reimbursement from the fund.

What the appeals board decided

EBIS appealed the denial to the Compensation Appeals Board. The board reversed and found that EBIS had satisfied the notice requirement through its payment memoranda.

It reasoned: “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 such a claim even if he or she did not work directly in the Second Injury Fund department.”

The New Hampshire Supreme Court said the CAB cited no legal or factual basis for that assumption. The DOL then appealed the board’s reversal, putting the agency’s reading of the 100-week rule before the high court.

Why the Supreme Court sided with the DOL

The court agreed that the memoranda showed only that the worker had received workers’ compensation benefits in accordance with law. They did not tell the DOL that EBIS intended to make a “possible claim” against the fund.

Payment records and reimbursement requests served different functions, much as a receipt documents a completed purchase while a refund request asks a seller to return money.

“We are not persuaded that the memoranda satisfied the statutory notice requirement,” the court said.

“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 said. It added: “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.”

What changes for insurers

Under the ruling, a payment memorandum cannot substitute for a specific notice of a possible Special Fund claim. An insurer must notify the Commissioner within 100 weeks of the worker’s injury. EBIS’s August 29, 2022 filing came too late, and the Supreme Court’s decision leaves payment records alone insufficient to recover the concurrent-employment share.