Petition of City of Manchester et al.

1) Whether a Writ of Mandamus should issue against the New Hampshire Department of Labor ordering it to grant Petitioners a Department level hearing on denied Second Injury Fund claims

pursuant to RSA 281-A: 43, I(a).

The full text of all statutory language is set forth in the Appendix to Petitioner’s Brief (“Appendix”) beginning at page 105.

This case is about the Petitioners’ (“Employers”) right to a first level

hearing at the New Hampshire Department of Labor (“Department”) to challenge the denials of their applications for Second Injury Fund reimbursement.

In 2021, Employers timely filed their applications for reimbursement from the Second Injury Fund (“Fund”) for payments made on workers’ compensation claims for calendar year 2020. Each of the Petitioners received a letter from the Special Fund Coordinator denying their applications for reimbursement. Appendix, pgs. 4, 5, 13, 21, 24, 30, 38, 46, 54, 61, 62, 69, and 76. The Denial Letters issued by the Fund indicate that “Pursuant to RSA 281-A:43 (b), should you disagree with this Decision, it may be appealed to the Workers’ Compensation Appeals Board....” Id.

Employers filed timely appeals of their respective denials with the Compensation Appeals Board (“Board”), as directed in the denial letters. Appendix, pgs. 6, 14, 31, 39, 48, 55, 63, 70, and 77.

The Employers then also filed requests for a first level hearing at the Department to challenge their respective denied Second Injury Fund claims pursuant to RSA 281-A:43, I(a). Appendix, pgs.7, 15, 32, 40, 49, 56, 64, 71, and 78.

Rather than scheduling a hearing pursuant to RSA 281-A:43, I(a), the Department issued letters denying the Employers’ requests for first level hearings. Appendix, pgs. 10, 18, 35, 43, 51, 58, 66, 73, and 80.

Employers then filed appeals of the Department’s letters denying the Employers’ requests for a first level hearing to challenge the Fund’s denials of their Second Injury Fund claims. Appendix, pgs. 12, 20, 37, 45, 53, 60, 68, 75, and 82.

Employers then filed this Writ of Mandamus requesting this Court to order the Department of Labor to schedule and hold a first level hearing to allow the Employers to challenge their denied Second Injury Fund applications.

By agreement of the parties all Board proceedings have been held in abeyance pending the determination of the Writ of Mandamus filed with

this Court. Appendix, pg. 83.

Petitioners, as employers and their insurance carriers, are granted a

statutory right to a Department of Labor hearing pursuant to RSA 281-

A:43, I(a) and RSA 541-A to challenge their denied Second Injury Fund claims.

RSA 281-A:43, I(a) states, “In a controversy as to the responsibility of an employer or the employer's insurance carrier for the payment of compensation and other benefits under this chapter, any party at interest may petition the commissioner in writing for a hearing and award.” The statute authorizes the Department to afford Employers a hearing as they are a “party at interest” in a controversy about “payment of compensation and other benefits under this chapter.”

The Administrative Procedure Act (“APA”) states, “This chapter shall govern all agency rulemaking procedures, hearings, and appeals, except as specifically exempted by this chapter.” See, RSA 541-A:41. The Department procedures for hearings and appeals are not exempt by the APA. Additionally, the APA, RSA 541-A:31, provides that in a contested case an agency “shall commence an adjudicative proceeding....” The Fund’s Denial Letter is also not a “decision” under either RSA 281-A:43 or RSA 541-A:35.

The Department’s answer to affording Employers a hearing to challenge their denied Second Injury Fund claims is an attempt to authorize a de novo Board hearing. The Department, however, lacks statutory authority to grant a de novo appeal to the Board prior to holding an initial level hearing. RSA 281-A:43 and Lab 202.02 are clear that the Board only has authority to hear a de novo appeal from a “decision” rendered by a Department of Labor “hearing officer” following a “hearing” held pursuant to RSA 281-A:43.

As the Department has denied the Employers’ request for a hearing and to

receive a “decision” by a hearing officer, the Department lacks legal authority to grant a de novo appeal hearing.

As such, Employers are without a legal venue to contest their denied Second Injury Fund claims because the Department refuses to schedule hearings and render a decision. This Court must order the Department to

schedule initial level hearings to provide relief for the Employers.

Standard of Review

Mandamus is an extraordinary writ. “A writ of mandamus is used to compel a public official to perform a ministerial act that the official has refused to perform, or to vacate the result of a public official's act that was performed arbitrarily or in bad faith. This court will, in its discretion, issue a writ of mandamus only where the petitioner has an apparent right to the requested relief and no other remedy will fully and adequately afford relief.” In re Cigna Healthcare, Inc., 146 N.H. 683, 687 (2001) (cleaned up).

This case requires an interpretation of RSA 281-A:43, I(a).

“In matters of statutory interpretation, we first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. We interpret the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. We consider words and phrases, not in isolation, but in the context of the statute as a whole in order to better discern the legislature's intent and to interpret statutory language in light of the policy or

purpose sought to be advanced by the statutory scheme. When construing a statute, we give effect to all words in a statute and presume that the legislature did not enact superfluous or redundant words.” In re Vasquez, Docket Nos. 2021-0071 and 2021-0072 (Slip Op. issued September 30, 2022), pgs. 3-4 (Cleaned up, internal citations omitted).

There is no other remedy available to the Employers to have the controversy heard by the Department in the first instance prior to a de novo appeal. The Employers have a statutory right to the relief requested and the Department’s denial of a hearing is arbitrary and works a great unfairness against Employers by denying them a legal venue to address these Second

Injury Fund controversies.

A plain reading of RSA 281-A:43, I(a) grants the Employers a right to a first level Department hearing on denied Second Injury Fund claims. The statute states, “In a controversy as to the responsibility of an employer or the employer's insurance carrier for the payment of compensation and other benefits under this chapter, any party at interest may petition the commissioner in writing for a hearing and award.”

Employers in this matter are a “party at interest” in a “controversy as to the responsibility of employers for the payment of compensation” and

**, .other benefits under this chapter”. There can be no legitimate doubt that

the Employers are a “party at interest” as they are the party requesting reimbursement.

Plainly, there is a “controversy” as the Employers made payment, then requested reimbursement, and then the Fund has denied the Employers’ request for reimbursement. RSA 281-A:43 provides two separate grounds for Employers to request a hearing on denied Second Injury Fund claims.

The first is to address their responsibility “for the payment of compensation” as the Employers made these payments but are no longer responsible as they have requested reimbursement from the Fund. RSA 281-A:54, states, “....the employer or the employer's insurance carrier shall in the first instance pay all awards of compensation provided by this chapter” and the responsibility for those past payments are now disputed by the Fund. The statute contains no requirement that the disputed payments be issued in the future.

RSA 281-A:43 also provides grounds for a hearing because Second Injury Fund reimbursements are also considered “...other benefits under this chapter.” The request for reimbursement is authorized by RSA 281-A:54 and 55 and as such, the controversy pertains to both “payments of compensation” and “other benefits under this chapter”.

Despite the plain wording of the statute, the Department, argues for a different reading of RSA 281-A:43 that would not authorize a first level, Department hearing.

The Department’s position is “the statute, as constructed, does not

separate ‘other benefits’ to provide an independent basis for a first level

consideration.” Appendix, pgs. 67, 74 and 81. The Department’s interpretation of the statute, if accepted, arguably creates an ambiguity as to whether the statute authorizes the Department to schedule first level hearings on denied Second Injury Fund claims. However, this perceived ambiguity is one of the Department’s own making because in three separate instances, the Department changes or adds to the text of the statute to support its strained reading of the statute that it cannot schedule hearings. First, the Department’s letters denying a hearing state, “The statute requires controversy regarding an insurance carrier’s ‘responsibility’ to

‘make payment of compensation and other benefits’ for adjudication at the

Department level.” Appendix, pgs. 66, 73, and 80. (Italics original, underline emphasis added).

However, the Department adds the “make payment” language to the statute to create this perceived ambiguity. RSA 281-A:43 actually states, “Tn a controversy as to the responsibility of an employer or the employer's insurance carrier for the payment of compensation and other benefits under this chapter...”

By adding the irregular verb “to make” prior to “payment of compensation” the Department changes a reference in the statute to a controversy about an employers’ responsibility “for the payment of compensation” that could have occurred in past or could occur in the future, into a requirement that the payment must be made in the future. The

statute, as written, allows the Department to schedule hearings regarding a controversy regarding the responsibility of carriers “for the payment compensation” that was made in the past or future, thus allowing it to schedule Second Injury Fund hearings.

Second, the Department’s denial of hearing letters further explains, “(Employer] does not articulate a dispute regarding its responsibility to make payment of compensation and payment of other benefits.” (Emphasis added). Appendix, pgs. 10, 18, 35, 43, 51, and 58.

However, RSA 281-A:43 I(a), actually states, “In a controversy as to the responsibility of an employer or the employer's insurance carrier for the payment of compensation and other benefits under this chapter....” The statute does not include the word “payment” preceding “other benefits”, as stated by the Department. The Department, by adding the word “payment” before “other benefits”, inappropriately tries to conjoin the phrase “payment of benefits” and “other benefits” in the statute to justify its denial of a hearing in these matters. Even if the statute did not allow hearings based upon a controversy regarding Employers responsibility “for payment of benefits, ” the statute would allow a hearing on “other benefits, ” which would include Second Injury Fund benefits.

Furthermore, the Department’s letters denying the Employers’ request for a first level hearing concede that Employers are “....entitled to an adjudicative hearing within the requirements set forth by RSA 281-A.” Appendix, pgs. Pg. 67, 74 and 81. The Department, however, in trying to offer a hearing to address the disputed claims, purports to authorize a de novo Board hearing, rather than a Department hearing. The Department’s denial letters again change the language of the statute to support its strained

reading of the statute. The Department states, “The statute does address the right to an appeal hearing before the Compensation Appeals Board when a

party is aggrieved by a determination made by the Commissioner’s

authorized representative.” (Emphasis added). Appendix, pgs. 10, 18, 35, 43, 51, 58, 67, 74, and 81.

RSA 281-A:43, I(b), however, states, “An appeal from a decision of the commissioner or the commissioner's authorized representative shall be taken to the board no later than 30 days from the date of such decision. Upon the filing of an appeal the board shall, within 6 weeks hold a full hearing on the appeal; but, in no case shall such an appeal suspend the

operation of an award unless the hearing officer from which the appeal was

taken shall so order.” (Emphasis added). The statute does not state there is a right to a de novo Board hearing from a “determination” by the Department, instead it requires a “decision”.

RSA 281-A:43, I(b) presupposes there has been a Department level hearing before a de novo Board hearing. This section of the statute provides that only a “hearing officer” can suspend the operation of an “award” from the hearing that would be appealed to the Board. The Department, by changing “decision” to “determination, ” tries to create a right that does not exist — that being a de novo Board hearing without a Department level hearing - in order to justify the denial of a Department level hearing.

The statute authorizes the Department to schedule and hold a hearing on denied Second Injury Fund claims. However, assuming arguendo, there was an ambiguity in the statute on this issue, then in analyzing the ambiguity the Department also has authority to schedule a Department level

hearing.

This Court has stated that in interpreting an ambiguity in the workers’ compensation statute the first task is to review legislative history. Here, the history provides no evidence that the legislature intended to take the radical step of denying hearings to Employers on denied Second Injury Fund claims. If the legislature had intended to take such a singular and unusual position, it could have done so, but did not. Although the history does not specifically state the legislature granted authority for the Department to schedule hearings on denied Second Injury Fund claims, it strongly suggests the Department and the legislature read the statute, when enacted, as granting such authority. This presumption may have been so strong that it explains why the topic was not explicitly raised in the legislative history.

In 1988, when the workers’ compensation statute was recodified to RSA 281-A, the Department (Ms. Crane) and the legislature (Senator Delahunty) appeared to anticipate that under the recodification Employers would continue to litigate Second Injury Fund claims at the Department and the Department did not wish the statute to change the Second Injury Fund statute to encourage additional litigation:

“Sen. Delahunty: Do you see any particular harm with leaving it in

there, Anne?

hiring handicapped people and having records of their pre- existing physical condition or impairment. I am really concerned they might mess it up.” Appendix, pg. 100.

Although the statute is silent as to whether Employers explicitly have a right to hearing on denied Second Injury Fund claims, it is clear enough that the Department and the legislature at the time of the recodification anticipated that Employers had a right to litigate Second Injury Fund claims.

This interpretation of the legislative history is supported by the history at the Department where it previously read the same statutory language for decades as granting it authority to schedule hearings on denied Second Injury Fund claims. The Department previously scheduled initial level hearings on Second Injury Fund denials for many years after the recodification of RSA 281-A, as noted by the Department of Labor decision dated August 27, 2007 in which the sole issue was Second Injury Fund eligibility. Appendix, pg. 96 and 97. The previous Second Injury Fund litigation referenced by the Department and the legislature in 1988 began at a Department hearing.

If the legislative and administrative history is still inconclusive, this Court has explained that in interpreting an ambiguity in the workers’ compensation statute, “... we liberally construe the workers’ compensation statute, resolving reasonable doubts in statutory construction in favor of

providing the broadest reasonable effect to its remedial purpose of

compensating injured employees.” Appeal of CNA Insurance Companies, (1996)). Here, the broadest reasonable effect is to grant the Department authority to schedule a hearing on denied Second Injury Fund claims. “As a matter of longstanding practice, we adopt a construction favorable

to the claimant when statutory language is ambiguous.” In re Gamas, 158 N.H. 646, 650 (2009) (citing Appeal of Hiscoe, 147 N.H. 223, 230 (2001)).

The Court has held in Second Injury Fund cases, “The second injury fund was created to encourage employers to hire or retain employees with permanent physical or mental impairments of any origin by reducing the employer’s liability for workers’ compensation claims. See RSA 281:47-a; N.H.H.R. JOUR. 80 (1947) (recommending “establishment of a second injury fund so as to encourage employment of physically handicapped persons”).” Appeal of CNA Insurance Companies, 143 N.H. 270, 272-273

(1998). Therefore, any ambiguity should be resolved in favor of the Employers in order to effectuate the remedial purposes of the statute, which is to benefit employees with permanent physical impairments.

Here, it is a clear benefit to the Employers to be granted a Department of Labor level hearing to challenge their denied Second Injury Fund claims. This first level affords Employers the opportunity to learn the Fund’s position and evidence supporting the denial of their claim, to present their own evidence and arguments in support of their claims and have a Hearing Officer review the evidence, apply the law and rule on the legitimacy of their claim. Without a first level hearing, Employers are prejudiced because they never learn the Fund’s arguments to support their denial until closing arguments at the de novo Board hearing and therefore can never secure additional evidence that might be required to address the alleged

deficiencies in the claim.

The denial of a Department level hearing also dampens Employers’ expectations for reimbursement from the Second Injury Fund. The denial of a Department level hearing discourages employers from hiring and retaining employees with a permanent physical or mental impairment because they understand the odds of reversing a denied Second Injury Fund claim are lessened when they are denied a Department level hearing.

This Court has held that “we do not assume that the legislature would enact statutory language that would lead to an absurd result.” Appeal of Murray, 142 N.H. 910, 913 (1998). The Department’s interpretation of the statute does just that. That result being the Department denying Employers a hearing and decision from a hearing officer under RSA 281-A:43 but then granting themselves authority to schedule a de novo Board hearing challenging the “decisions” from “hearings officers” that do not exist and that never occurred. The Department’s position would require a radical reading of RSA 281-A:43 in that the legislature does not grant Employers the right to hearing on denied Second Injury Fund claims but does grant all other parties with a dispute regarding issues under RSA 281-A a first level Department hearing. If the legislature intended to take such a radical and unprecedent step in denying a right to a Department level hearing it would have clearly stated that intention in the statute but it did not do so.

Pursuant to RSA 281-A:43 I(a), the Employers are a “party at interest” and requested a hearing to determine the responsibility for “payment of compensation and other benefits under this chapter” which the Department has denied. The Department is failing to carry out the statute’s legislative intent to provide an initial level hearing to address controversies in

contested cases.

The Administrative Procedure Act (“APA”) states, “This chapter shall govern all agency rulemaking procedures, hearings, and appeals, except as specifically exempted by this chapter.” RSA 541-A:41. The Department’s procedures for hearings and appeals are not exempt by the APA. The Department’s hearing procedures, appeals and decisions must follow the APA as well as the Workers’ Compensation Act under RSA 281-A.

The APA provides a State agency two choices in “...processing an application, petition, or request...” RSA 541-A:29. The agency can “(a) Approve or deny the application, in whole or in part, on the basis of nonadjudicative processes, if disposition of the application by the use of these processes is not precluded by any provision of law; or (b) Commence an adjudicative proceeding in accordance with this chapter.” RSA 541- A:29, II.

For reimbursement from the Fund, RSA 281-A:54 instructs insurance carriers or employers to file applications to the Fund for any “employee who has a permanent physical or mental impairment, as defined in RSA 281-A:2, XIV, from any cause or origin incurs a subsequent disability by injury arising out of and in the course of such employee's employment....” At the time of these initial filings, the application process is not an “adjudicative proceeding” as defined by the APA. An “‘adjudicative proceeding’ means the procedure to be followed in contested cases, as set forth in RSA 541-A:31 through RSA 541-A:36.” See, RSA 541-A:1, I.

Here, Employers applied for reimbursement to the Fund. The Fund “elected to proceed with a nonadjudicative process.” Appendix, pg. 91. A nonadjudicative process “means all agency procedures and actions other than an adjudicative proceeding.” RSA 541-A:1, X.

After the nonadjudicative review, the Fund then either accepts the Second Injury Fund application or issues the “Denial Letter”. Here, in the Employers’ cases, Denial Letters were issued. The Denial Letters are not a “decision” as defined by RSA 541-A:35 as there is no “adjudicative proceeding” or “contested case” or hearing held. In defining a “decision”, RSA 541-A:35 states, in part, “A final decision or order adverse to a party in a contested case shall be in writing or stated in the record.” (Emphasis added).

Furthermore, the Special Funds Coordinator is not a Hearing Officer as defined by RSA 281-A:42-b and is not duly qualified to issue Department decisions. RSA 281-A:42-b, states in part, that a Hearing Officer “shall

hear workers' compensation cases before the commissioner.” As the Coordinator does not hold any type of hearing that satisfies RSA 281-A:43 I(a) in which a de novo hearing can be held pursuant to the statute and Lab Rule 202.02, the Coordinator’s Denial Letter holds no enforceable weight as a decision concerning the “legal rights, duties, or privileges of a party.” RSA 541-A:1, IV.

Additionally, the Special Funds Coordinator is not part of the Department’s Hearings Bureau that “hear(s) workers’ compensation cases before the commissioner.” RSA 281-A:42-b. Currently, there are five (5) Hearing Officers at the Department that issue decisions under RSA 281- A:43, I(a) and the Special Funds Coordinator is not designated as one of the five Hearing Officers. Therefore, the Special Funds Coordinator cannot issue a “decision” under the statutory provisions.

RSA 541-A:31, I states, “An agency shall commence an adjudicative proceeding if a matter has reached a stage at which it is considered a contested case, or, if the matter is one for which a provision of law requires a hearing only upon the request of a party, upon the request of a party (sic).” A “contested case” is defined by the APA and “means a proceeding in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after notice and an opportunity for hearing.” RSA 541-A: 1, IV.

The Fund acknowledges that prior to the Denial Letters being issued the “matter has yet to be subject to a hearing of any kind.” Appendix, pgs. 87, 88, paragraphs 7 and 12. Since the Employers and the Fund agree there have been no “proceedings” or “hearing of any kind, ” the Denial Letter being issued by the Fund is not a decision pursuant to RSA 541-A:35, I or RSA 281-A:43, I(a).

Once the Denial Letter is issued, then this matter becomes a “contested case” which requires an “opportunity for hearing.” When this matter becomes a contested case, then the Department must schedule this matter for an initial level hearing, when requested, pursuant to RSA 281-A:43, I (a). In these cases, there is no notice provided and no opportunity for hearing prior to the Fund issuing Denial Letters in the nonadjudicative process.

Here, the Fund’s “Denial Letter” is not a decision pursuant to RSA 541- A:35 or RSA 281-A:43, I(a). As a result, a de novo appeal cannot be held

as the first adjudicative proceeding. Without a hearing and decision being rendered by the Department, the Board has no statutory authority to hear a

de novo appeal which is argued below in Section III.

Il. THE DEPARTMENT OF LABOR LACKS AUTHORITY TO

The Department lacks authority to grant a de novo Board hearing

because it is not authorized to do so by statute.

RSA 281-A:42-a, I(b) provides the Board’s specific statutory authority, providing, “[t]he board shall hear appeals, in accordance with RSA 281- A:43, I(b), from the decisions of the commissioner made pursuant to RSA 281-A:43.” RSA 281-A:42-a, I(b) also states, “[a]ppeals from a decision of the commissioner or the commissioner's representative shall be heard de novo by a 3-member panel....”” As argued in Section II, the Fund’s denial letter is not a “decision of the commissioner made pursuant to RSA 281- A:43”; therefore, the Board lacks authority to hold a de novo appeal in the first instance. The Board cannot hear appeals from the Fund’s denial letters, which are not decisions after a hearing but are instead non- adjudicative determinations.

Here, the Fund acknowledges that the denied Second Injury Fund claims have “...yet to be subject to a hearing of any kind.” Appendix, pgs. 87, 88, paragraphs 7 and 12. The Fund and Department cannot have it both ways by arguing that RSA 281-A provides for an appeal and de novo hearing

from a decision from a Department hearing officer but then deny the Employer a Department level hearing where a hearing officer can consider the evidence and render a decision for a de novo hearing to occur.

In addition, Lab Rule 202.02 states, “‘De novo hearing’ means a new hearing which is not bound by the findings and rulings of a previous hearing before the commissioner or hearing officer and which allows the parties to introduce new evidence or evidence not considered by the hearing officer or commissioner at such a hearing, subject to the provisions of Lab 205.09.” The Lab rule makes clear that the Board’s de novo hearing can only take place after an initial level hearing, because it references the prior hearing, and the entire appeal process is predicated on the lower level Department hearing being held pursuant to RSA 281-A:43 and a decision being rendered by a hearing officer.

As such the Department does not have legal authority to authorize a Compensation Appeals board de novo hearing.

In these cases, the legal matter properly before the Department is whether the Employers satisfied the “proof of eligibility” requirement under RSA 281-A:54 in order to obtain reimbursement from the Fund. The Department, as the agency that enforces the Workers’ Compensation Act, has initial jurisdiction to hear the legal matter of whether the Employers satisfied the proof of eligibility requirements for reimbursement from the Fund pursuant to RSA 281-A:54.

The Fund’s position is that the Denial Letter gives sufficient notice of the issues in disputer because it recites the statutory language. However, by the Department improperly denying a first level hearing, this prevents the Employer from determining the legal and factual issues in dispute that

would be identified during a first level hearing.

New Hampshire law is clear, parties can only raise issues on appeal that were noticed and raised at the lower level. “The board's de novo review is limited to issues raised in the department of labor proceedings being appealed.” Appeal of Staniels, 142 N.H. 194, 796 (1998). Appeal of Currin, 149 N.H. 303, 307 (2003) (Employer “did not make this argument

before the DOL and could not have made the argument on appeal to the board.”)

“Because of the breadth and complexity of the workers' compensation statutory scheme, limiting the issues reviewable by the board ensures that parties can reasonably anticipate the issues for which they must prepare evidence and argument. Moreover, the board's de novo review of an appeal does not confer upon non-appealing parties the right to pursue their claims on appeal.” In re Fay, 150 N.H. 321, 324 (2003).

The Fund’s Objection to Motion in Limine filed with the Board also states, “the fact a denial letter identifies one or two deficiencies in a Carrier’s claim does not necessarily mean that additional deficiencies do not exist.” Appendix, pg. 88, para. 9. Without a lower level hearing, the first time an Employer would have the opportunity to determine what the “additional deficiencies” are would be at the appeal, and they would have no opportunity to introduce new evidence to address the “additional deficiencies” as contemplated by Lab 202.02.

Lab Rule 202.02 is clear that the Board only has authority to hear an appeal of a “decision” rendered by a Department of Labor “hearing officer” following a “hearing” held pursuant to RSA 281-A:43. As the Department

has denied the Employers’ request for a hearing and a decision issued by a hearing on denied Second Injury Fund claims, the Department lacks legal

authority to then grant the Board authority to hold a de novo appeal hearing.

For the reasons outlined above, the Petitioners respectfully request that this Court order the Department of Labor to schedule initial lower-level hearings, pursuant to RSA 281-A:43, I(a) on denied Second Injury Fund

claims.

The Petitioners respectfully request that this Court schedule 15

minutes for oral arguments to hear Attorney Gary S. Harding in this matter.

The undersigned hereby certifies that a copy of this brief is being

forwarded via this Court’s electronic filing system to:

Counsel for the Department of Labor:

Laura Lombardi, Esq.

Department of Justice | Office of the Attorney General 33 Capitol Street

Concord, New Hampshire 03301 Counsel for the Second Injury Fund:

Mary F. Stewart, Esq.

Consumer Protection and Antitrust Bureau Department of Justice | Office of the Attorney General 33 Capitol Street

Concord, New Hampshire 03301

I hereby certify that the total words in this Brief do not exceed the

maximum of 9, 500 words. This brief contains 5, 035 words.

The undersigned also certifies that pursuant to New Hampshire Supreme Court Rule 16 (3)(i), that the appealed decisions are in writing and

are appended to this Brief.

I hereby certify that a copy of the foregoing document is being timely provided to all counsel of record through the Court’s electronic

service filing system.

Date: af Z 2 3 /s/ Gary S. Harding

Gary S. Harding, Esq.

Ken Merrifield Commissioner of Labor

Rudolph Ogden, III Deputy Labor Commissioner

Hugh J. Gallen

Ptate of Nee Aampahire — Sse oreeron Concord, NH 03301 Department of Labor 603/271-3176

TDD Access: Relay NH

1-800-735-2964

FAX: 603/271-6149

http://www.nh.gov/labor

November 18, 2022

Gary Harding, Esq.

Bernard & Merrill, PLLC 814 Elm Street, Suite 407 Manchester, NH 03101

RE: Patrick Mullen v. City of Manchester DOI: 9/15/2019 DOL Case: 104041 | CAB Docket: 2022-C-0159

The New Hampshire Department of Labor (“Department”) is in receipt of CCMSI’s request for a Department level hearing pursuant to RSA 281-A:43, I(a). Articulated at issue in the request is the denial of CCMSI’s application for reimbursement from the Special Injury Fund (“Fund”) pursuant to RSA 281-A-54.

CCMSI argues it is entitled to a hearing on the issue of denial of its application for eligibility to use the Special Injury Fund. Of note, CCMSI requested an appeal hearing before the Compensation Appeals Board on the issue of the Fund’s denial of its application for reimbursement on November 10, 2021 (Docket 2022-C-0159). CCMSI now argues that it is entitled to a hearing at the Department, and not the Compensation Appeals Board level.

CCMSI’s entitlement to a hearing, and the Department’s jurisdiction over the issue is not in dispute. However, CCMSI’s request for hearing at the Department level is respectfully denied for the following reasons.

Under RSA 281-A:43, I(a), a Department level hearing before the Commissioner of Labor’s (“Commissioner”) authorized representative is appropriately scheduled “[i]n a controversy as to the responsibility of an employer or the employer’s insurance carrier for the payment of compensation and other benefits under this chapter...”._ CCMSI does not articulate a dispute regarding its responsibility to make payment of compensation and payment of other benefits. Rather, CCMSI’s dispute is in regard to its to application for reimbursement from the Special Injury Fund for benefits already paid. Given this, CCMSI has not articulated a dispute under RSA 281-A:43, I(a) for which a Department level hearing can be scheduled.

The statute does addresses the right to an appeal hearing before the Compensation Appeals Board when a party is aggrieved by a determination made by the Commissioner’s authorized representative. Specifically, RSA 281-A:43, I(b) reads, in relevant part: “An appeal from a decision of the commissioner or the commissioner’s authorized representative shall be taken to the board no later than 30 days from the date of such decision.”,

In this instance, the dispute articulated by CCMSI is in relation to the Special Injury Fund’s denial of its application for eligibility to receive reimbursement. CCMSI disputes a decision rendered by the Commissioner’s authorized representative for which a hearing is appropriately heard by the Compensation Appeals Board pursuant to RSA 281-A:43, I(b). CCMSI appropriately requested a hearing before the Compensation Appeals Board in November 2021. Given this, CCMSI’s request for hearing appropriately remains pending before the Compensation Appeals Board.

11/18/2022 le ee ee

Date Danielle N. Albert, Director Workers Compensation Division

ce: Mary Stewart, Esq.

Wesley Gardner, Esq.

State of Net Hampshire

Department of Labor

Ken Merrifield Commissioner of Labor

Rudolph Ogden, Ill Deputy Labor Commissioner

Hugh J. Gallen

State Office Park Spaulding Building TDD Access: Relay NH 1-800-735-2964

FAX: 603/271-6149 http:/Avww.nh.gov/labor

November 22, 2022

Gary Harding, Esq.

Bernard & Merrill, PLLC 814 Elm Street, Suite 407 Manchester, NH 03101

RE: John P. Connors v. City of Manchester DOI: 7/28/21020

The New Hampshire Department of Labor (“Department”) is in receipt of CCMSI’s request for a Department level hearing pursuant to RSA 281-A:43, I(a). Articulated at issue in the request is the denial of CCMSI’s application for reimbursement from the Special Injury Fund (“Fund”) pursuant to RSA 281-A-54.,

CCMSI’s request for hearing at the Department level is respectfully denied for the following reasons.:

Urider RSA 281-A:43, I(a), a Department level hearing before the Commissioner of Labor’s (“Commissioner”) authorized representative is appropriately scheduled “[i]n a controversy as to the responsibility of an employer or the employer’s insurance carrier for the payment of compensation and other benefits under this chapter...”. CCMSI does not articulate a dispute regarding its responsibility to make payment of compensation and payment of other benefits. Rather, CCMSI’s dispute is in regard to its to application for reimbursement from the Special Injury Fund for benefits already paid. Given this, CCMSI has not articulated a dispute under RSA 281 -A:43, I(a) for which a Department level hearing can be scheduled.

The statute does addresses the right to an appeal hearing before the Compensation Appeals Board when a party is aggrieved by a determination made by the Commissioner’s authorized representative. Specifically, RSA 281-A:43, I(b) reads, in relevant part:

“An appeal from a decision of the commissioner or the commissioner’s authorized representative shall be taken to the board no later than 30 days from the date of such

decision.”

CCMSI has also taken a appeal to the Compensation Appeals Board in this matter (CAB Docket 2022-0149). Given that CCMSI has not articulated a dispute that can be appropriately scheduled under RSA 281-A:43, I(a), the dispute regarding the denial is more appropriately addressed before the Compensation Appeals Board.

11/22/2022 oe iene ee

Date Danielle N. Albert, Director Workers Compensation Division

cc: Mary Stewart, Esq.

Wesley Gardner, Esq.

Hugh J. Gallen

State of New Hampshire see, ree rar 95 Pleasant Street Concord, NH 03301

Department of Labor 603/271-3176 TDD Access: Relay NH

Ken Merrifield Commissioner of Labor AN cg placcaed 49 http:/Awww.nh.gov/labor

Rudolph Ogden, III Deputy Labor Commissioner

October 31, 2022

Gary Harding, Esq.

Bernard & Merrill, PLLC 814 Elm Street, Suite 407 Manchester, NH 03101

RE: Henry Kin v. Walgreen Eastern Co Inc.

DOI: 10/29/2018 DOL Case: 103981

The New Hampshire Department of Labor (“Department”) is in receipt of Sedgwick CMS’s request for a Department level hearing pursuant to RSA 281-A; 43, I(a). Articulated at issue in the request is the denial of Sedgwick CMS’s application for reimbursement from the Special Injury Fund pursuant to RSA 281-A-54,

Sedgwick CMS argues it is entitled to a hearing on the issue of denial of its application for eligibility to use the Special Injury Fund. Sedgwick CMS’s entitlement to a hearing, and the Department’s jurisdiction over the issue is not in dispute. However, Sedgwick CMS’s request for hearing at the Department level is respectfully denied,

Under RSA 281-A; :43, I(a), a Department level hearing before the Commissioner of Labor’s (“Commissioner”) authorized representative is appropriately scheduled “[i]n a controversy as to the responsibility of an employer or the employer’s insurance carrier for the payment of compensation and other benefits under this chapter...”. Sedgwick CMS does not articulate a dispute regarding its responsibility to make payment of compensation and payment of other benefits. Rather, Sedgwick CMS’s dispute is relative to its to application for reimbursement from the Special Injury Fund for benefits already paid. Given this, Sedgwick CMS has not articulated a dispute under RSA 281- A:43, I(a) for which a Department level hearing can be scheduled.

The statute does addresses the right to an appeal hearing before the Compensation Appeals Board when a party is aggrieved by a determination made by the Commissioner’s authorized representative. Specifically, RSA 281-A:43, I(b) reads, in relevant part:

“An appeal from a decision of the commissioner or the commissioner’s authorized representative shall be taken to the board no later than 30 days from the date of such

decision.”,

In this instance, the dispute articulated by Sedgwick CMS is in relation to the Special Injury Fund’s denial of its application for eligibility to receive reimbursement. Sedgwick CMS is disputing a decision rendered by the Commissioner’s authorized representative for which a hearing is appropriately heard by the Compensation Appeals Board pursuant to RSA 281-A:43, I(b). Sedgwick CMS’s request is therefore forwarded to the Compensation Appeals Board for scheduling of a hearing in routine course.

Should Sedgwick CMS disagree with this determination, it may be appealed by filing a written notice of appeal addressed to the Compensation Appeals Board, c/o New Hampshire Department of Labor, 95 Pleasant Street, Concord, NH 03301, within 30 days of the date of this determination.

10/31/2022 ll Way, ~~. SS

Date Danielle N. Albert, Director Workers Compensation Division

ec: Mary Stewart, Esq.

Hugh J. Gallen

State of Nete Hampshire — See tea Par 95 Pleasant Street Concord, NH 03301

Department of Labor 603/271-3176 TDD Access: Relay NH

Rudolph Ogden, Ili Deputy Labor Commissioner

Ken Merrifield Commissioner of Labor oi Zi gisges 49 http:/Awww.nh.gov/labor October 20, 2022 Gary Harding, Esq.

Bernard & Merrill, PLLC 814 Elm Street, Suite 407

Manchester, NH 03101

RE: Dawn Wightman v. Shaw’s Supermarkets, Inc.

DOT: 5/18/2020 DOL Case: 103969

The New Hampshire Department of Labor (“Department”) is in receipt of Sedgwick CMS’s request for a Department level hearing pursuant to RSA 281-A:43, I(a). Articulated at issue in its request is the denial of Sedgwick CMS’s application for reimbursement from the Special Injury Fund reimbursement pursuant to RSA 281-A-54,

Sedgwick CMS argues it is entitled to a hearing on the issue of denial of its application for eligibility to use the Special Injury Fund. Sedgwick CMS’s entitlement to a hearing, and the Department’s jurisdiction over the issue is not in dispute, However, Sedgwick CMS’s request for hearing at the Department level is respectfully denied.

Under RSA 281-A:43, I(a), a Department level hearing before the Commissioner of Labor’s (“Commissioner’’) authorized representative is appropriately scheduled “[iJn a controversy as to the responsibility of an employer or the employer’s insurance carrier for the payment of compensation and other benefits under this chapter...”. Sedgwick CMS does not articulate a dispute regarding its responsibility to make payment of compensation and payment of other benefits. Rather, Sedgwick CMS'’s dispute is relative to its to application for reimbursement from the Special Injury Fund for benefits already paid. Given this, Sedgwick CMS has not articulated a dispute under RSA 281- A:43, I(a) for which a Department level hearing can be scheduled.

The statute does addresses the right to an appeal hearing before the Compensation Appeals Board when a party is aggrieved by a determination made by the Commissioner’s authorized representative. Specifically, RSA 281-A:43, I(b) reads, in relevant part:

“An appeal from a decision of the commissioner or the commissioner’s authorized representative shall be taken to the board no later than 30 days from the date of such

decision.”.

In this instance, the dispute articulated by Sedgwick CMS is in relation to the Special Injury Fund’s denial of the application for eligibility to receive reimbursement. Sedgwick CMS is disputing a decision rendered by the Commissioner’s authorized representative for which a hearing is appropriately heard by the Compensation Appeals Board pursuant to RSA 281-A:43, I(b), It is noted that Sedgwick CMS has already filed an appeal, without prejudice, on this issue for hearing before the Compensation Appeals Board,

Should Sedgwick CMS disagree with this determination, it may be appealed by filing a written notice of appeal addressed to the Compensation Appeals Board, c/o New Hampshire Department of Labor, 95 Pleasant Street, Concord, NH 03301, within 30 days of the date of this determination.

10/20/2022 es pee, ool

Date Danielle N. Albert, Director Workers Compensation Division

cc: Mary Stewart, Esq.

Ken Merrifleld Commissioner-of Labor:

Rudolph Ogden, Ill Deputy Labor Commissioner

State of New Hampshire

Department of Labor

Hugh J. Gallen State Office Park

Spaulding Building TDD Access: Relay NH 1-800-735-2964

FAX: 603/271-6149 http:/Avtww.nh.gov/labor

October 18, 2022

Michelle Broadhurst, Esq, Bernard & Merrill, PLLC 814 Elm street, Suite 407

Manchester, NH 03101

RE: Atida Chan v, BAE Systems, Inc.

DOI: 1/7/2020

The New Hampshire Department of Labor (“Department”) is in receipt of ESIS, third party administrator for Indemnity Insurance Company of North America’s, request for hearing before the Compensation: Appeals Board filed pursuant to RSA 281-A:43, I(b). Articulated at issue in its request is ESIS’s denial of eligibility for Special Injury Fund reimbursement pursuant to RSA 281-A-55-a.

In addition to a hearing before the Compensation Appeals. Board, ESIS indicates in its request that it also seeks a hearing on the issue of Special Injury Fund reimbursement-eligibility at the Department level under RSA 281-A:43, [(a), on the issue of RSA 281-A:54,

ESIS seeks, in part, a hearing at the Department level pursuant to RSA 281-A:43, I(a), Under RSA 281- A; 43 I (a), aDepartment level hearing before. the Commissioner of Labor’s (“Commissioner”) authorized representative may be scheduled when a dispute regarding responsibility of an employer, or the employer's insurance carrier, to make payment of compensation and other workers’ compensation benefits arises.

Under RSA 281-A:43, I(a), a Department level hearing before the Commissioner of Labor's (“Commissioner”) authorized representative is appropriately scheduled “[i]n a controversy as to the responsibility of an employer or the employer’s insurance carrier for the payment of compensation and other benefits under this chapter...”. ESS does not articulate a dispute regarding its responsibility to make payment of compensation and payment of other benefits, Rather, ESIS’s dispute is relative to its to eligibility for reimbursement from the Fund for benefits already paid. Given this, BSIS has notarticulated a dispute under RSA 281-A:43, I(a) for which a Department level hearing is appropriate.

The statutes further addresses the right to an appeal hearing before the Compensation Appeals Board when a party is aggrieved by a determination made by the Commissioner’s authorized. representative. Specifically, RSA 281-A:43, I(b) reads, in relevant part:.

“An appeal. from a decision of the commissioner or the commissioner’s authorized representative shall be taken to the board no later than 30 days from the date of such decision.”.

ESIS is in relation to the Fund s denial of eligibility to receive by ESIS. ESIS is disputing.a decision hich a hearing is appropriately heard by the

In this instance, the dispute articulated by reimbursement of workers’ compensation benefit expenses paid rendered by the Commissioner’s authorized representative for w o™

Compensation Appeals Board pursuant to RSA 281-A:43, I(b). Accordingly, ESIS’ request for an appeal has been received and forwarded for scheduling of a hearing before the-Compensation Appeals Board,

10/18/2022 “I no ee Se

Date Danielle N. Albert, Director Workers Compensation Division

ce: Mary Stewart, Esq.

State of New Hampshire

Department of Labor

Ken Merrifield Commissioner of Labor

Rudolph Ogden, Ill Deputy Labor Commissioner

Hugh J. Gallen

State Office Park Spaulding Building TDD Access: Relay NH 1-800-735-2964

FAX: 603/271-6149 http:/Avww.nh.gov/labor

November 18, 2022

Kevin Stewart, Esq, Bernard & Merrill, PLLC 814 Elm Street, Suite 407 Manchester, NH 03101!

RE: Jason Sylvain v. Phillips Exeter Academy DOI: 12/6/2018

The New Hampshire Department of Labor (“Department”) is in receipt of AIM’s Mutual Insurance Company’s request for a Department level hearing pursuant to RSA 281-A:43, I(a). Articulated at issue in the request is the denial of AIM Insurance Company’s application for reimbursement from the Special Injury Fund (“Fund”) pursuant to RSA 281-A-54.

Aim Mutual Insurance Company’s request for hearing at the Department level is respectfully denied for the following reasons.

Under RSA 281-A:43, I(a), a Department level hearing before the Commissioner of Labor’s (“Commissioner”) authorized representative is appropriately scheduled “[i]n a controversy as to the responsibility of an employer or the employer’s insurance carrier for the payment of compensation and other benefits under this chapter...”._ AIM Mutual Insurance Company does not articulate a dispute regarding its responsibility to make payment of compensation and payment of other benefits. Rather, AIM Insurance Company’s dispute is in regard to its to application for reimbursement from the Special Injury Fund for benefits already paid. Given this, AIM Insurance Company has not articulated a dispute under RSA 281-A:43, I(a) for which a Department level hearing can be scheduled.

The statute does addresses the right to an appeal hearing before the Compensation Appeals Board when a party is aggrieved by a determination made by the Commissioner’s authorized representative. Specifically, RSA 281-A:43, I(b) reads, in relevant part:

“An appeal from a decision of the commissioner or the commissioner’s authorized representative shall be taken to the board no later than 30 days from the date of such

decision.”.

AIM Mutual Insurance Company has also taken a appeal to the Compensation Appeals Board in this matter. Given that AIM Mutual Insurance Company has not articulated a dispute that can be appropriately scheduled under RSA 281-A:43, I(a), the dispute regarding the denial is more appropriately addressed before the Compensation Appeals Board.

11/18/2022 Te ee

Date Danielle N. Albert, Director Workers Compensation Division

co: Mary Stewart, Esq.

Wesley Gardner, Esq.

State of New Asmpshire

Department of Labor

Ken Merrifield Commissioner of Labor

Rudolph Ogden, III Deputy Labor Commissioner

September 20, 2022

Gary Harding, Esq.

Bernard & Merrill, PLLC 814 Elm Street, Suite 407 Manchester, NH 03101

RE: James Waterman vy. People’s Linen Service, LLC DOT: 3/17/2021

Hugh J. Gallen

State Office Park Spaulding Building TDD Access: Relay NH 1-800-735-2964

FAX: 603/271-6149 http:/Avww.nh.gov/labor

On September 8, 2022, The Lawson Group filed a petition for hearing on the issue of denial of The Lawson Group’s application to the Second Injury Fund (“Fund”) for eligibility for Fund reimbursement. Per the petition, The Lawson Group seeks a Department level hearing on the issue, under RSA 281-A:43, I.

The Lawson Group first notes in its request that it is entitled to an adjudicative hearing on the issue of the Fund denial. The Lawson Group specifically cites to the Administrative Procedures Act (“APA”) at RSA

541-A:31 in support this position,

There is no dispute that The Lawson Group is entitled to an adjudicative hearing relative to the disputed issue articulated in its request, However, the hearing must conform with the requirements for adjudicative hearings as in set forth in the Workers Compensation Law at RSA 281-A et seq. The Lawson Group seeks said hearing to be facilitated at the Department level pursuant to RSA 281-A:43, I(a), and not before the Compensation Appeals Board under RSA 281-A; 43, I(b). Specifically, The Lawson Group argues that a hearing at the Department level is appropriate under RSA 281-A:43, I(a) as the dispute is in relation to “a controversy as to the responsibility... for the payment of compensation and other benefits under this chapter”

between the Carrier and the Fund.””,

The Lawson Group’s interpretation of the types of controversy appropriate for Department level adjudication is misplaced and does not accurately interpret the requirements as set forth in statute. Pursuant to RSA 281- A:43, I(a), a Department level hearing before the Commissioner of Labor’s (“Commissioner”) authorized representative is appropriately scheduled “[iJn a controversy as to the responsibility of an employer or the employer's insurance carrier for the payment of compensation and other benefits under this chapter...”.

(emphasis added).

The statute requires controversy regarding an insurance carrier’s “responsibility” to “make payment of compensation and other benefits” for adjudication at the Department level. The dispute articulated by The Lawson Group in the instant matter is not in relation to the insurance carrier’s responsibility for payment of compensation and other benefits. An insurance carrier is obligated to make payment of compensation and this responsibility is not in dispute. There is no responsibility under the workers compensation statute for an employer or its insurance carrier to make submission for eligibility or otherwise seek reimbursement from the Fund. Rather, an insurance carrier has the option to seek eligibility for reimbursement, should it elect to do so, as an incentive for employers to hire and retain employees with permanent impairments, Of particular importance in the context of considering The Lawson Group’s instant request is that the controversy articulated by The Lawson Group is not in relation to its responsibility for “payment of compensation and other benefits.” This point is particularly impactful as the statute, as constructed, specifies such controversies, specifically those dealing with an insurance carrier’s responsibility for payment of compensation and payment of other benefits as the appropriate basis for Department level consideration. Furthermore the statute, as constructed, does not separate “other benefits” to provide an independent basis for a for first level consideration'. This conclusion is based upon the grammatical reality that "of compensation and other benefits” as set forth in 281-A:43, I(a) is a prepositional phrase which modifies “payment”. See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal texts 147-49 (2012) (explaining that under the series qualifier canon of construction “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpostive modifier normally applies to the entire series.”),

The Lawson Group has not articulated a dispute pursuant to RSA 281-A; 43, I(a) for which a Department level hearing is appropriate, However, as noted The Lawson Group is entitled to an adjudicative hearing within the requirements set forth by RSA 28]-A. The statute addresses the right to an appeal hearing before the Compensation Appeals Board when a party is aggrieved by a determination made by the Commissioner’s authorized representative at RSA 281-A:43, I(b). Specifically, RSA 281-A:43, I(b) reads, in relevant part:

“An appeal from a decision of the commissioner or the commissioner’s authorized representative shall be taken to the board no later than 30 days from the date of such decision.”.

RSA 281-A:43, I(b) allows for appeals of any determinations of the commissioner or the commissioners designee for adjudication to the Compensation Appeals Board. In this instance, The Lawson Group disputes the decision of the Fund Coordinator, the Commissioners designee, about its eligibility for Fund reimbursement. An adjudicative hearing before the Compensation Appeals Board on this dispute is therefore appropriate, and The Lawson Group’s request for hearing has been forward for scheduling before the Compensation Appeals Board in routine course.

‘

Date Danielle N. Albert, Director Workers Compensation Division

cc; Mary Stewart, Esq.

? Had the legislature intended to separate “benefits” and provide for an independent basis for hearing under RSA 281- A:43, I(a), it would have done so by adding a comma before the “and” as it would suggest no carryover modifier such that an additional basis for hearing is provided as “other benefits” would no longer modify the word “payment”.

Ken Merrifield Commissioner of Labor

Rudolph Ogden, Ill Deputy Labor Commissioner

Kevin W. Stuart, Esq.

Bernard & Merrill, PLLC 814 Elm Street, Suite 407 Manchester, NH 03101

State of New Hampshire

Department of Labor

September 20, 2022

RE: Elise Thomas v. North Country Independent Living, Inc.

DOI: 2/26/2021

Hugh J. Gallen

State Office Park Spaulding Building TOD Access: Relay NH 1-800-735-2964

FAX; 603/271-6149 http:/Avww.nh.gov/labor

On September 8, 2022, The Lawson Group filed a petition for hearing on the issue of denial of The Lawson Group’s application to the Second Injury Fund (“Fund”) for eligibility for Fund reimbursement. Per the petition, The Lawson Group seeks a Department level hearing on the issue, under RSA 28 1-A:43, 1.

The Lawson Group first notes in its request that it is entitled to an adjudicative hearing on the issue of the Fund denial. The Lawson Group specifically cites to the Administrative Procedures Act (“APA”) at RSA

541-A:3] in support this position.

There is no dispute that The Lawson Group is entitled to an adjudicative hearing relative to the disputed issue articulated in its request. However, the hearing must conform with the requirements for adjudicative hearings as in set forth in the Workers Compensation Law at RSA 281-A et seq. The Lawson Group seeks said hearing to be facilitated at the Department level pursuant to RSA 281-A:43, I(a), and not before the Compensation Appeals Board under RSA 281-A; 43, I(b). Specifically, The Lawson Group argues that a hearing at the Department level is appropriate under RSA 281-A:43, I(a) as the dispute is in relation to “a controversy as to the responsibility...for the payment of compensation and other benefits under this chapter”

between the Carrier and the Fund.””.

The Lawson Group’s interpretation of the types of controversy appropriate for Department level adjudication is misplaced and does not accurately interpret the requirements as set forth in statute. Pursuant to RSA 281- A:43, I(a), a Department level hearing before the Commissioner of Labor’s (“Commissioner”) authorized representative is appropriately scheduled “[i]n a controversy as to the responsibility of an employer or the employer's insurance carrier for the payment of compensation and other benefits under this chapter.., ”.

(emphasis added).

The statute requires controversy regarding an insurance carrier’s “responsibility” to “make payment of compensation and other benefits” for adjudication at the Department level, The dispute articulated by The Lawson Group in the instant matter is not in relation to the insurance carrier’s responsibility for payment of compensation and other benefits. In fact, there is no responsibility under the workers compensation statute for an employer or its insurance carrier to make submission for eligibility or otherwise seek reimbursement from the Fund, Rather, an insurance carrier has the option to seek eligibility for reimbursement, should it elect to do so, as an incentive for employers to hire and retain employees with permanent impairments, Of particular importance in the context of considering The Lawson Group’s instant request is that the controversy articulated by The Lawson Group is not in relation to its responsibility for “payment of compensation and other benefits.” This point is particularly impactful as the statute, as constructed, specifies such controversies, specifically those dealing with an insurance carrier’s responsibility for payment of compensation and payment of other benefits as the appropriate basis for Department level consideration. Furthermore the statute, as constructed, does not separate “other benefits” to provide an independent basis for a for first level consideration’. This conclusion is based upon the grammatical reality that "9f compensation and other benefits” as set forth in 281-A:43, I(a) is a prepositional phrase which modifies “payment”. See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal texts 147-49 (2012) (explaining that under the series qualifier canon of construction “[w]hen there is a straightforward, paralle] construction that involves all nouns or verbs in a series, a prepositive or postpostive modifier normally applies to the

entire series”).

The Lawson Group has not articulated a dispute pursuant to RSA 281-A; 43, I(a) for which a Department level hearing is appropriate, However, as noted The Lawson Group is entitled to an adjudicative hearing within the requirements set forth by RSA 281-A. The statute addresses the right to an appeal hearing before the Compensation Appeals Board when a party is aggrieved by a determination made by the Commissioner’s authorized representative at RSA 281-A:43, I{b). Specifically, RSA 281-A:43, I(b) reads, in relevant part:

“An appeal from a decision of the commissioner or the commissioner’s authorized representative shall be taken to the board no Jater than 30 days from the date of such decision.”.

RSA 281-A:43, 1(b) allows for appeals of any determinations of the commissioner or the commissioners designee for adjudication to the Compensation Appeals Board. In this instance, The Lawson Group disputes the decision of the Fund Coordinator, the Commissioners designee, about its eligibility for Fund reimbursement, An adjudicative hearing before the Compensation Appeals Board on this dispute is therefore appropriate, and The Lawson Group’s request for hearing has been forward for scheduling before the

Compensation Appeals Board in routine course.

O PRs) Za ee { we Oo

Date Danielle N, Albert, Director Workers Compensation Division

cc: Mary Stewart, Esq. Diate of Nefe Hampshire

Department of Labor

Ken Merrifield

Hugh J, Gallen

State Office Park Spaulding Building TDD Access: Relay NH 1-800-735-2964

Commissioner of Labor FAX: 603/271-6149 Rudolph Ogden, III http://www.nh.gov/labor Deputy Labor Commissioner October 12, 2022 a *%, Kevin Stuart, Esq. 2 7 g Bernard & Merrill, PLLC * be 814 Elm Street, Suite 407 % Manchester, NH 03101 YE ong

RE: Ariel D. Cortorreal v. Highliner Foods USA, Inc. DOI: 9/20/2017 (CNA Date: 05/01/2019)

On October 3, 2022, MEMIC filed a petition for hearing on the issue of a denial of MEMIC’s application to the Second Injury Fund (“Fund”) for eligibility of Fund reimbursement. Per the petition, MEMIC requests a Department level hearing on the issue of RSA 281-A:54 relative to the denial of Fund reimbursement.

MEMIC notes in its request that it is entitled to an adjudicative hearing on the issue of the Fund denial. MEMIC specifically cites to the Administrative Procedures Act (“APA”) at RSA 541-A:31 in support this

position.

There is no dispute that MEMIC is entitled to an adjudicative hearing. However, the hearing must conform with the requirements for adjudicative hearings as in set forth in the Workers Compensation Law at RSA 281-A et seq, MEMIC seeks said hearing to be facilitated at the Department level pursuant to RSA 281- A:43, I(a), and not before the Compensation Appeals Board under RSA 281-A:43, I(b). Specifically, MEMIC argues that a hearing at the Department level is appropriate under RSA 281-A:43, I(a) as the dispute is in relation to “a controversy as to the responsibility...for the payment of compensation and other benefits under this chapter” between the Carrier and the Fund.””.

MEMIC’s interpretation of the types of controversy appropriate for Department level adjudication is misplaced and does not accurately interpret the requirements as set forth in statute, Under RSA 281-A:; 43, I(a), a Department level hearing before the Commissioner of Labor’s (“Commissioner”) authorized representative is appropriately scheduled “[iJn a controversy as to the responsibility of an employer or the employer's insurance carrier for the payment of compensation and other benefits under this chapter...”. (emphasis added),

The statute requires controversy regarding an insurance carrier’s “responsibility” to “make payment of compensation and other benefits” for adjudication at the Department level. An insurance carrier is obligated to make payment of compensation under the Workers Compensation Law, and this responsibility is not articulated as in dispute in this instance. Rather, the dispute is in relation to MEMIC’s application for eligibility for reimbursement from the Fund. There is no responsibility under the workers compensation statute for an employer of its insurance carrier to apply for or otherwise pursue reimbursement from the Fund. Rather, an insurance carrier has the option to seek eligibility for reimbursement, should it elect to do so, as an incentive for employers to hire and retain employees with permanent impairments.

Of particular importance in the context of considering MEMIC’s instant request is that the controversy articulated by MEMIC is not in relation to its responsibility for “payment of compensation and other benefits.” This point is particularly impactful as the statute, as constructed, specifies such controversies, specifically those dealing with an insurance carrier’s responsibility for payment of compensation and payment of other benefits as the appropriate basis for Department level consideration. Furthermore the statute, as constructed, does not separate “other benefits” to provide an independent basis for a for first level consideration’. This conclusion is based upon the grammatical reality that "of compensation and other benefits” as set forth in 281-A:43, I(a) is a prepositional phrase which modifies “payment”. See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal texts 147-49 (2012) (explaining that under the series qualifier canon of construction “[w]hen there is a straightforward, paralle] construction that involves all nouns or verbs in a series, a prepositive or postpostive modifier normally applies to the entire

series.”).

MEMIC has not articulated a dispute pursuant to RSA 281-A; 43, I(a) for which a Department level hearing is appropriate, However, as noted MEMIC is entitled to an adjudicative hearing within the requirements set forth by RSA 281-A. The statute addresses the right to an appeal hearing before the Compensation Appeals Board when a party is aggrieved by a determination made by the Commissioner’s authorized representative at RSA 281-A:43, I(b). Specifically, RSA 281-A:43, I(b) reads, in relevant part:

“An appeal from a decision of the commissioner or the commissioner’s authorized representative shall be taken to the board no later than 30 days from the date of such decision.”.

RSA 281-A:43, I(b) allows for appeals of any determinations of the commissioner or the commissioners designee for adjudication to the Compensation Appeals Board. In this instance, MEMIC disputes the decision of the Fund Coordinator, the Commissioners designee, about its eligibility for reimbursement from the Fund. An adjudicative hearing before the Compensation Appeals Board on this dispute is therefore appropriate, and MEMIC’s request for hearing has been forward for scheduling before the Compensation

Appeals Board in routine course.

jofalaz2. _ Danielle N, Albert, Director

Date Workers Compensation Division

ce: Mary Stewart, Esq.