Appeal of New Hampshire Adjutant General’s Department

When an employer files a Memo of Denial in response to a claim for workers’ compensation benefits, RSA 281-A:42-d requires that a hearing be requested within 18 months. The fundamental question in this appeal is: who does the law permit to be a claimant for death benefits? If Michael Galimberti is the only claimant, then the 18-month limitation bars his right, and his Estate’s right, to challenge the denial he received in April 2019. But if his widow Kimberly Galimberti is properly recognized in accord with New Hampshire case law and the law of the majority of states as having an independent claim for death benefits, then her claim, having been timely filed in January 2023 and denied in February 2023, was timely acted upon when a hearing on the denial was requested in April 2023.

Although the CAB found the cancer presumption applied in this case, its application was unnecessary for the widow to prevail, as the CAB held she met the burden of proof on causation. The CAB acted within its discretion when holding that the testimonial and particularly the substantial written medical evidence presented made the causal connection of his cancer to occupational exposures more likely than not.

On questions of statutory interpretation, this Court will “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 to avoid an absurd or unjust result. We do not consider words and phrases in isolation, but rather within the context of the statute as a whole, which enables us to better discern the legislature’s intent in light of the policy or purpose sought to be advanced by the statutory scheme. Absent an ambiguity, we will not look beyond the language of the statute. We construe the Workers’ Compensation Law liberally to give the broadest reasonable effect to its remedial purpose. Thus, we resolve all doubts in statutory interpretation in favor of the injured worker.” Appeal of Estate of Menke, 2025 N.H. 10, ¶10 (internal citation elided for clarity).

II. The CAB correctly ruled that RSA 281-A:42-d does not bar Kimberly from pursuing her independent claim for death benefits.

This case is not about Michael’s claim for workers’ compensation benefits.

This case was brought by his widow Kimberly, asserting her own separate, independent claim for death benefits under RSA 281-A:26 (“If death results from an injury, weekly compensation shall be paid to the dependents of the deceased employee in an amount provided by the compensation schedule in RSA 281-A:28…”). That claim belongs to her as a statutory dependent, not to Michael. “[D]ependents have a separate and distinct right to compensation for the loss which they sustain by the death of the employee who was a source of support to them.” Brown v. Hubert, 100 N.H. 194, 196 (1956).

Any rights or obligations which attach to Kimberly’s claim for death benefits cannot, by definition, have existed before Michael’s death on January 23, 2020. That is the operative date of the workers’ compensation “injury” to her, because at no time prior to January 23, 2020 could any claim for death benefits have conceivably been filed. RSA 281- A:2, XI, (defining “injury” as “occupational disease or resulting death arising out of and in the course of employment”) (emphasis added). It was not until his death that she was first vested with any legal authority to pursue benefits arising from it.

And in order to pursue benefits of any kind under RSA 281-A, death benefits among them, three different notice and filing limitations tied to any date of injury must be met. Critically, all three procedural provisions were noticed for hearing. Appellant only claims error as to the third.

First, RSA 281-A:19 requires that notice of an injury be given to the employer within two years of the date of injury. Second, RSA 281-A:21-a separately provides that compensation will be barred unless a claim is filed with the employer within three years of the date of injury. Third, once a claim is filed, if the employer files a Memo of Denial in response, RSA 281-A:42-d imposes a “Time Limitation for Petition for Hearing”:

petitions for a hearing under RSA 281-A:43 within 18 months after the claimant receives notice that the claim has been denied by the insurance carrier or self-insurer pursuant to RSA 281-A:42, I(b) [describing the “Memo of Denial”].

RSA 281-A:42-d, (emphasis added).

The thrust of the employer’s argument is that there is but one “claimant” involved in this case, with only one “claim”, under one date of injury: Michael’s own, with the date of injury (diagnosis) February 15, 2019. That claim was denied on April 1, 2019, and Michael died on January 23, 2020 without having filed any request for hearing. On the employer’s theory, if no Estate was thereafter opened to request a hearing in pursuit of medical and indemnity benefits on Michael’s behalf within 18 months of April 1, 2019, then RSA 281-A:42-d bars any further action. But this ignores that an injured worker – by definition – cannot ever make a claim for death benefits. It is only the injured worker’s statutory dependents that can claim and receive death benefits under RSA 281-A:26.

Michael’s own claim for indemnity and medical benefits was never adjudicated. But that claim is different in kind from Kimberly’s independent claim for benefits, which only sprang into existence upon Michael’s January 23, 2020 death.

The separate and independent existence of a dependent’s right of action for death benefits is well-settled in New Hampshire. Hubert, 100 N.H. at 196 (holding that in superseding Cote v. Bachelder-Worcester, 85 N.H. 444 (1932) by statute, the Legislature intended to create a new system by which “dependents have a separate and distinct right to compensation for the loss which they sustain by the death of the employee who was a source of support to them.” Id. at 196 (emphasis added); see also Menke, 2025 N.H. 10, ¶19 (citing Hubert approvingly).

Significant legal consequences flow from the creation of this separate and distinct right. The Hubert employee was injured in December 1951. His claim was accepted and later settled in February 1952—but that settlement did not include, nor affect, the “separate and distinct right of action” belonging to his dependents. Indeed, it was not until more than two years after the settlement was approved, when he died from his work-related injuries in October 1954, that “there arose in his dependents, the plaintiffs, a separate and distinct right of action from that which he acquired when he was injured in December 3, 1951. It follows that the settlement executed by him and not by his dependents on February 6, 1952, could only affect his right of action.” Id. at 196.

Therefore, when the Hubert widow filed for death benefits in March 1955, more than three years after the claimant’s settlement was approved and six months after his death, her petition was upheld. Id. at 196-97.

The Appellee acknowledges that Kimberly’s situation is distinguishable, as the petition for death benefits in Hubert followed a claim that was accepted as compensable and settled on the same basis. But this is a distinction without a material difference, because as Hubert reasoned, the right to claim death benefits belongs to the survivors regardless of the actions of the injured worker. Whether an injured worker fails to pursue a claim for benefits through ignorance, pride, illness or otherwise, that does not preclude dependents’ right to file and prove their own claim. Hubert recognized this, too: If this settlement could not affect plaintiffs' rights it follows that a failure on [the employee’s] part to apply for a modification thereof under Laws 1947, c. 266, § 38, now RSA 281:40 [currently RSA 281- A:48], could not do so. Nor did said section 38 impose a duty on the plaintiffs to apply for a modification of [the employee’s] settlement since that settlement was not related to their rights as dependents which arose over two years thereafter.

Id. at 196-97 (emphasis added).

Professor Larson’s workers’ compensation treatise not only supports the theory articulated by Hubert that a claimant’s release of rights does not bar a dependent’s claim, 8 Lex K. Larson, LARSON’S WORKERS’ COMPENSATION §98.01[2] (2023), but goes further: The most striking consequence of the independent status of dependency rights is the rule, accepted by the majority of jurisdictions, that an adverse decision on the merits of a claim by the employee while he or she was alive does not bar a dependency claim under the doctrine of res judicata, since the parties and rights involved are different, and since the dependent is not in privity with the injured employee as to the rights asserted….

A fortiori, the defeat of the employee’s claim on procedural grounds such as failure to file a timely claim, or the employee’s complete failure ever to make claim during his or her lifetime, is not a bar to the rights of dependents.

V OL. 8, LARSON’S, §98.01[4], 98-5 to 98-7, and cases collected at DIGEST § 98.01D[4]; see, e.g., Cowell v. Industrial Accident Comm’n., 78 P.2d 1016 (Cal. 1938).

Illinois held otherwise, but only because of the existence of a statute (to which no analogue exists in New Hampshire) making a final decision in the employee’s case conclusive on the same issue in the dependent’s case. Lewin Metals Corp. v. Indust.

Comm’n, 196 N.E. 482 (1935).

More broadly representative is Nevada’s approach, allowing a widow’s November 1980 claim for death benefits to proceed despite the employee’s failure to timely pursue his own claim for silicosis within one year of his 1976 diagnosis. “We interpret the statute of limitations to allow recovery up to one year after the husband’s [October 1980] death, regardless of whether a claim was made by the employee within one year after the employee knew or should have known of the relationship between his disease and the employment, because the widow’s cause of action commences upon the death of her husband.” State Indust. Ins. Sys. v. Lodge, 822 P.2d 664, 665 (Nev. 1991).

Here, the Court need not go so far as to hold that a dependent may claim death benefits in the face of an employee’s adverse decision on the merits. It is enough to observe that there was simply no appeal of the employer’s denial of Michael’s claim in 2019. His failure to request a hearing on that denial within 18 months certainly bars his own right to pursue routine indemnity and medical benefits under his February 15, 2019 date of injury. RSA 281-A:42-d.

But that failure presents no bar to Kimberly’s independent claim for A:26 death benefits, which first materialized upon Michael’s death on January 23, 2020. This principle, too, was recognized by this Court in the 1950s. In Hirch v. Hirch Bros., 97 N.H. 480 (1952), an employee suffered severe injuries in a work-related plane crash on June 30, 1951. He died from those injuries on July 6, 1951. In the interim (July 1, 1951), a new law took effect increasing the maximum death benefit payable. When the claimant’s widow filed a petition for death benefits, the trial court awarded her benefits at the “old” rate that applied as of the date of the employee’s injury. Id. at 486.

This Court reversed, holding that the widow was entitled to benefits at the “new” rate, because her benefit was governed by the law effective when her independent claim arose. [I]n our judgment the petition to enforce [death benefits] is properly brought by the dependents rather than by a representative of the decedent employee. It follows that the rights of the dependents are to be determined according to the law in force at the time the rights arose, namely, upon the death of the employee.

Id. at 486.

Thus, Hirch makes clear that when an independent claim for death benefits is made, the “date of injury” to dependents is the date of death. 97 N.H. at 486; see Hubert, 100 N.H. at 196-97 (employee’s settlement “was not related to their rights as dependents which arose over two years thereafter.” (emphasis added.))

This interpretation squares with the statutory definition of “injury”, which is stated in the disjunctive. ““Injury” … as used in and covered by this chapter means … any occupational disease or resulting death arising out of and in the course of employment[.]” RSA 281-A:2, XI (emphasis added). The cognizable “injury” under RSA 281-A suffered by Kimberly is not Michael’s initial diagnosis – which, even if compensable, would have yielded no direct benefit or conferred any immediate right to her - but the event of his death.

The distinction was well articulated by the Supreme Court of Vermont, in a case establishing that an adverse decision on the merits of an employee’s claim was no bar to his widow’s subsequent petition for death benefits: The employee’s rights are based entirely on the injury and spring into being as soon as it is received. The compensation for loss resulting from such injury belongs to the employee and to him only. It is also true that there would be no occasion for a dependent to claim compensation unless the deceased employee had received a compensable injury. But the rights of the dependent to compensation do not accrue unless and until death results from such injury and such rights are then given to him by the statute not because of the injury but because of the resulting death and the financial loss to the dependent therefrom.

Laird v. State of Vermont Highway Dep’t., et al, 20 A.2d 555, 562 (Vt. 1941).

Further, because Kimberly’s independent claim necessarily could not have arisen before Michael’s death on January 23, 2020, her claim is presented within all relevant statutes of limitations. This is true as to notice under RSA 281-A:19, filing of a claim under RSA 281-A:21-a, II, and – the key question presented in this appeal - filing of a petition for a hearing following receipt of a denial of her claim under RSA 281-A:42-d.

i. Because the employer was on notice of the claim that Michael’s cancer was work related and had actual notice of his death from that cancer, RSA 281- A:19, II is satisfied.

Regarding notice, RSA 281-A:19 states: Claims for benefits under this chapter shall be barred unless notice of injury is given to the employer within 2 years from the date of the injury…

II. In the event of death, the date any dependent knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employee's employment.

(Emphasis added.)

Regarding Kimberly’s claim, what matters for purposes of providing notice under RSA 281-A:19, II of an independent claim for death benefits is that the employer receive notice of the arguably work-related death. It is well-settled that actual notice is sufficient to satisfy RSA 281-A:19. Phillips, 165 N.H. at 232 (reaffirming the holding in Appeal of Gamas, 158 N.H. 646 (2009) that actual notice qualifies). RSA 281-A:19, II is clear that “in the event of death”, the running of the two-year clock begins “the date any dependent knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employee’s employment.” On its face, this language presents a potential conundrum. If one assumes that Kimberly “knew or should have known” that a causal link existed between Michael’s employment and his cancer when he was diagnosed in February 2019, then should notice of his death have been provided before he died?

To pose the question is to answer it – such a reading of A:19, II yields an absurd result. Kimberly obviously had no ability to pursue death benefits before Michael’s death, whatever she may have believed about his cancer’s causal relationship to his employment. It follows that she can have had no legal obligation or even ability to report, petition, or take any other action to enforce her own rights under §A:26 before his death vested her with that right (and attendant obligations).

See Lodge, 822 P.2d at 666-67 (“the “claimant” is the widow or dependent, and the knowledge that the disease caused the death arises only upon the death of the injured employee.”)

The most natural reading of RSA 281-A:19, II – and given its ambiguity in this regard, the most appropriately liberal construction which will give “the broadest reasonable effect to its remedial purpose – to protect those who were dependent upon an employee’s wages that were diminished or lost due to a workplace injury”, Menke, 2025 N.H. 10, ¶13, is that it is a discovery clause for dependents. I.e., notice by dependents is to be given within two years of an employee’s death; and if greater than two years have elapsed since death, any later notice provided to the employer that the death may have been work-related is time-barred unless the dependent shows that she did not and could not have known of the death’s possible relationship to employment until some later date.

The employer, having itself already filed a Notice of Accidental Injury alleging “liver cancer – toxic substance exposure” on Michael’s behalf, was aware of the claimed relationship between Michael’s cancer and workplace exposure. C.R. at 1. Subsequently, the employer had actual notice of Michael’s death by cancer the day it happened, as evidenced by the letter of condolence sent by the employer to Kimberly on the day of his passing. C.R. at 171. The employer was further aware of Kimberly’s assertion of a causal connection between his employment and his death by bile duct cancer by virtue of her filing of a LODD claim, C.R. 173, and the employer’s own participation in the Department of Safety’s investigation of that claim by providing the same report of Dr. Pulde the employer used to deny Michael’s claim. C.R. Ex. B at 62.

With that evidence of the employer’s actual, contemporaneous notice of Michael Galimberti’s cancer- related death, RSA 281-A:19 is satisfied.

ii. Because Kimberly’s right to demand death benefits began upon Michael January 23, 2020 death, her claim is timely filed under RSA 281-A:21-a.

The structure of RSA 281-A:21-a, governing the filing of claims, is the same as the notice provision under §A:19. “Compensation for…death benefits under this chapter shall be barred unless a claim is filed within 3 years after the date of injury…In the event of death, the date any dependent knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employee's employment.”

For the same reasons described above, Kimberly Galimberti’s right, indeed her ability, to file a claim with the employer for death benefits first arose on January 23, 2020. Any time limitation on filing cannot have begun before that date. This Court “construe[s] “claim” in the Workers’ Compensation Law to mean “a demand for compensation, benefits or payment.” Menke, 2025 N.H. 10, ¶12. Her demand for death benefits was filed on January 18, 2023, less than three years following Michael’s death.

Accordingly, RSA 281-A:21-a was satisfied.

iii. The employer filed a Memo of Denial specific to Kimberly’s claim for death benefits, and a hearing was promptly requested within two months; RSA 281-A:42-d is satisfied.

The 18-month limitation on petitions for hearing contained in RSA 281-A:42-d has also been satisfied, as it requires a claimant to “petition for a hearing…within 18 months after the claimant receives notice that the claim has been denied…pursuant to RSA 281-A-42, I(b) [the written Memo of Denial]” (emphasis added).

The State takes the position that Kimberly does not enjoy the independent right to pursue death benefits recognized in Hubert, relying instead on Michael’s April 2019 Memo of Denial (See 2/6/23 Memo of Denial at C.R. 39, stating “[Kimberly’s] claim is a continuation of the previously- filed claim with a 2/19/19 date of injury, which was denied on 4/1/19…”).

This fundamentally misconstrues the nature of the claim asserted. In this claim for death benefits, Kimberly is the “claimant” for purposes of §A:42-d (“Compensation for …death benefits…shall be barred unless the claimant petitions for a hearing…within 18 months after the claimant receives notice that the claim has been denied…”). The first, 2019 Memo of Denial was addressed and sent to Michael, and makes no reference to death benefits. C.R. at 2. Why would it? Michael was alive. And upon his death, no new Memo of Denial was sent to Kimberly.

Nor would one expect it to be. The State knew Michael had died of cancer asserted to be work-related, but didn’t know Kimberly was demanding A:26 death benefits right away. For that matter, neither did she. It was not until December 2022 that Kimberly learned that eligibility for retirement death benefits was further contingent upon a Labor Department determination that Michael’s death was work-related.

She then retained counsel and presented her death benefit claim on January 18, 2023. This claim was denied by the State on February 6, 2023. Kimberly requested a hearing on the denial less than two months later, satisfying RSA 281- A:42-d.

The CAB’s adoption of Appellant’s theory of the case was clearly identified in its decision, which begins with a recognition that there was not one, but two separate dates of injury at issue: The second date of injury, January 23, 2020 is the date Michael Galimberti died and that claim is moving forward via his widow, Kimberly Galimberti.

6/17/24 D ECISION, pg. 2 (emphasis added), C.R. at 356.

The CAB separately found that, as required by §A:19, notice of Kimberly’s assertion of a work-related death was provided to the employer within two years of the January 23, 2020 death. This was done by virtue of her filing with the State – and copying to State Fire Marshal Parisi directly - a request for Line of Duty Death (LODD) benefits in April 2020, less than three months after the date of death:

finds that the claim for LODD benefits was notice to the Employer and the Panel finds that the State utilized the same expert report by Dr. Pulde for both cases.

6/17/24 DECISION, pg. 13, C.R. at 367 (emphasis added).

Thus, her assertion of a work-related death having been noticed to the employer in 2020, she separately litigated to a successful conclusion the (non-workers’ compensation) LODD benefit in December 2022. Having done so, she promptly filed her claim for workers’ compensation death benefits under RSA 281-A:21-a on January 17, 2023. That claim was denied by the State on February 6, 2023. She had 18 months to request a Labor Department hearing on that denial pursuant to RSA 281-A:42-d. She did so two months later, in April 2023. The statute is satisfied.

This is what the CAB referred to when correctly observing that: The Panel finds RSA 281-A:42-a is not applicable to the facts of this case, as the statute specifically states there is a death benefit limit of 18 months from a denial (when) a CLAIMANT petitions for a hearing within 18 months of the denial.

6/17/24 DECISION, pg. 14 (all-caps emphasis in original), C.R. at 368.

The CAB found the 18-month statute of limitations in Section A:42-a “not applicable” in this case because Kimberly, the “claimant” in this matter, met the statutory requirements for her claim with 16 months to spare. There is no error. Appellant’s complaint turns on who qualifies as a “claimant”. Appellant concedes that per DOL rule, “Claimant means a person who has a claim under the laws and rules administered by the department. It notably does not require that a claimant be the injured worker.” A PPELLANT’S BRIEF at 15-16 (citing LAB. R. 101.02). Just so.

But there is a difference, and a significant one, between the widow opening an Estate to request a hearing on behalf of Michael in response to the denial issued to him, as she might have done before October 2020, and the independent claim she later asserted on her own behalf in 2023.

A hearing timely brought by the Estate which challenged the denial to Michael’s own claim (as Appellant says, “dependents who could step in a claimant’s shoes to timely request a hearing to challenge a denied claim”, APPELLANT’S BRIEF at 16), would have had as its goal a threshold causal finding under §A:2 that his cholangiocarcinoma was work-related, and attendant orders for the State to be responsible for all medical care associated with his cancer treatment under §A:23 and payment of weekly indemnity benefits under §A:48 until the moment of his death. At that time, his dependents would have had the opportunity to claim death benefits under §A:26, and the employer given an opportunity to deny (on the basis, for example, that non-spousal dependents were not financially dependent on him, or that the dependent was not a legitimate spouse. See, e.g., Menke, 2025 N.H. at ¶5).

But in this instance, because Michael’s claim was never litigated, the substantive issues litigated under Kimberly’s claim were causal relationship of the disease to Michael’s employment under §A:2, and in terms of benefits paid, the only benefit available: the weekly death benefit under §A:26 itself. The CAB did not issue an order requiring payment of any period of disability suffered by Michael, or of medical bills incurred by him. All that liability pre-dates Kimberly’s injury: the death of her spouse. The only benefit ordered paid was the death benefit. 6/17/24 DECISION, pg. 15, C.R. at 367. Consider the effect of Appellant’s theory if Michael lived an additional 9 months, and died in November 2020, one month after the §A:19-d statute ran on his Memo of Denial. While he was alive, Kimberly had no standing to challenge the denial of Michael’s claim, as she was not “a person who has a claim under the laws and rules administered by the department.” LAB. R. 101.02. No benefits under RSA 281-A accrue directly to the spouses of injured workers. It was not until his death that she became a statutory “dependent” under §A:26 and capable of acting on her own behalf. If Michael’s death did not represent a cognizable injury to her, then she would be precluded from making a claim by the mere happenstance of time.

The language of §A:42-d explicitly imposes an 18- month limitation to request a hearing in response to the filing of a Memo of Denial. It is not a time limitation on providing notice of, or filing, a claim. Those are found in RSA §A:19 and §A:21-a, respectively. Rather, §A:42-d is titled “Time Limitation for Petition of a Hearing”, and says that “Compensation for…death benefits under this chapter shall be barred unless the claimant petitions for a hearing under RSA 281-A:43 within 18 months after the claimant receives notice that the claim has been denied by the insurance carrier or self-insurer pursuant to RSA 281-A:42, I(b).” The above presumes first that a claim for death benefits has been filed, and that a Memo of Denial has been filed in response: that’s when the clock begins. The statute nowhere states, or even implies, that the 18-month clock begins to run silently, automatically on claims for death benefits at the moment of death. Other states do have such limiting language specific to death claims, and their courts have ruled accordingly. See V OL. 11, LARSON’S, §126.11[1], Limitations Affecting Death Claims, §§126-69 to 126-72, and cases collected at DIGEST §126.11D[1]. New Hampshire does not. It requires the claimant be given affirmative notice of a Memo of Denial.

The analysis could end there, as the language is clear. “When a statute's language is plain and unambiguous, [this Court] need not look beyond the statute for further indication of legislative intent.” In re Malouin, 155 N.H. 545, 549 (2007). But even if this Court were to view the language as susceptible of multiple interpretations and desired to review the legislative history of RSA 281-A:42-d to aid its analysis, it would search in vain for any hint that the legislature intended to create a unique 18-month limitation on death claims that begins the moment of death without separate notice of denial to the injured workers’ statutory dependents, who may well be unknown to the carrier. 5 And as described in detail above, when Kimberly timely claimed death benefits under existing law and received a Memo of Denial in response to her claim, she requested a hearing less than two months later. Section A:42-d does not bar her claim: it authorizes it.

Reading the statute as Appellant urges is inconsistent with this Court’s “practice to liberally construe the Workers'

Compensation Law, resolving all reasonable doubts in statutory construction in favor of providing the broadest reasonable effect to the statute's remedial purpose of compensating injured employees, ” Appeal of Hypertherm, 152 N.H. 21, 24, (2005). It flies in the face of an interpretative model that has seen an overwhelming majority of jurisdictions, faced with similar questions, hold that decedents’ independent claims are to be measured as of the date of death unless their state’s statute explicitly provides otherwise. Supra, 11 LARSON’S, §126.11[1].

III. The argument that notice of Michael’s death was improperly imputed among agencies ignores uncontroverted evidence of notice to the employer, and is based on a misreading of which “date of injury” was being adjudicated.

Although Appellant never cites §A:19 in its brief (the two-year notice of claim provision), the complaint is that notice of Kimberly’s claim for benefits under the Line of Duty Death statute, filed with the Department of Safety three months after her husband’s death, cannot serve as notice to the employer of a potential workers’ compensation death. This complaint ignores the evidence of actual notice by and to the employer, and is a fundamental misreading of Kimberly’s own claim.

The flaw in reasoning is due to Appellant’s own refusal to acknowledge Kimberly’s independent right to claim death benefits. (“There is only one date of injury in this case, February 15, 2019, which can be alleged by the Claimant or the Widow/Claimant.” APPELLANT’S RULE 10 PETITION, at *10.) This is simply wrong. There have been two dates of injury noticed for hearing in this case since the very beginning: Michael’s (2/15/2019), and Kimberly’s (1/23/2020). C.R. at 49 (DOL hearing notice), 284 (CAB hearing notice). Because the Appellant deems illegitimate Kimberly’s independent right to claim death benefits within three years of Michael’s death, the Appellant reads the CAB’s decision to allow her claim to proceed as tolling the original 18-month deadline that began with the State’s April 2019 denial of Michael’s claim. The allegation of error depends upon the assumption, rejected by the CAB, that the original Memo of Denial is the only one that matters.

The CAB understood there are two dates of injury at issue. The first was Michael’s own.

The second date of injury, January 23, 2020 is the date Michael Galimberti died and that claim is moving forward via his widow, Kimberly Galimberti.

6/17/24 DECISION, pg. 2 (emphasis added), C.R. at 356.

That second date of injury has its own fresh set of notice and filing requirements, all of which were met. The CAB explicitly recognized this:

Galimberti was first told of the possibility of Workers’ Compensation benefits and she made a claim that started dated 1/17/2023.

CLARIFICATION, pg. 2, (emphasis added). C.R. at 407.

So: the CAB did not view Kimberly’s filing for LODD benefits as tolling the 18-month deadline to request a hearing initiated by the April 2019 denial of Michael’s claim. (The CAB never, in its 15-page decision or 4-page post-decision order, describes what it is doing as “tolling” that deadline.) Rather, the CAB viewed Kimberly’s filing for LODD benefits as providing timely notice of an alleged workers’ compensation death under §A:19, a claim she would then formally, and timely, present under §A:21-a on January 17, 2023. This, too, was made explicit by the CAB: The Panel finds that the claim for LODD benefits was notice to the Employer and the Panel finds that the State utilized the same expert report by Dr. Pulde for both cases.

6/17/24 D ECISION, pg. 13 (emphasis added), C.R. at 367.

There is no “tolling” error, and the CAB’s decision should be affirmed.

IV. Appellant’s complaint about the cancer presumption is mistaken as a matter of statutory interpretation, but would be harmless in any event as the CAB decided in the claimant’s favor even if the burden of proof rested with her.

If certain statutory preconditions are met, career firefighters in New Hampshire enjoy a legal presumption that their cancer is occupationally caused. RSA 281-A:17, II. When the presumption applies, the burden of proof shifts to the employer to “provide evidence of non-occupationally-related risk factors from which a reasonable trier of fact could conclude that the plaintiff's [cancer] disease was, more probably than not, caused by one or more of those non- occupational factors.” See Cunningham v. City of Manchester Fire Dep’t., 129 N.H. 232, 238 (1987) (explaining operation of the presumption for heart disease in firefighters). Thus, if the presumption is met, the workers’ compensation claimant need not make any affirmative case to prevail. It is enough that the employer fail to meet its burden to persuasively establish a non-occupational cause for the cancer.

The CAB found that the presumption was met in this case, but the point is moot: after reviewing hundreds of pages of medical evidence, multiple expert reports and assessing the live testimony of the claimant’s medical expert Dr. Cochran, the CAB held in no uncertain terms that even if the burden of proof remained with Kimberly, she met that burden. The successful workers’ compensation claimant will address both legal and medical causation by a preponderance of the evidence. Appeal of Briggs, 138 N.H. 623 (1994) and Appeal of Cote, 139 N.H.

575 (1995). Legal causation evidence was presented by witness testimony and expert reports to the multiple “potential exposures” in the workplace. The Panel finds that reasonable testimony and expert reports indicate there are multiple potential exposures in Claimant’s service as a firefighter as the basis for the sudden emergence of ICC cancer.

Medical causation requires proof by a preponderance of the medical evidence that work- related activity “…probably cause or contributed to the injury as a matter of medical fact.” Appeal of Kehoe, 141 N.H. 412, 417 (1996). The panel finds Mrs. Galimberti’s medical expert to have presented a credible chain of exposures and risk factors that establish medical causation by a preponderance of the evidence. The Panel finds that there is a reasonable scientific basis for the conclusion by Dr. Cochran, that the ICC cancer found in Michael Galimberti was caused by the multiple exposures typically experienced by firefighters in general and by this person in specific.

6/17/24 DECISION, pg. 14 (emphasis added), C.R. at 368.

Given this reasoning, the CAB’s further ruling on the presumption had no effect on its disposition of the case. Any claim of error – however mistaken – would therefore be harmless because Appellee prevailed without relying on the presumption. Medical and legal causation was affirmatively established as in any routine workers’ compensation claim, and the decision should be affirmed.

However, should the Court entertain Appellant’s argument directly, Appellee has a twin response.

First, as has been well-established, Kimberly is the claimant, with a cognizable injury dated January 20, 2023. The statute in effect on that date narrowly defines what it meant for Michael to have lived a “tobacco-free lifestyle” for purposes of establishing the presumption: For the purposes of this section, a person lives a “tobacco free lifestyle” if he or she has not, within the past 6 months, used any tobacco product, including cigarettes, cigars, chewing tobacco, snuff, or pipe tobacco 4 or more times in a week.

RSA 281-A:17, II, (a)(1), (e) (eff. July 17, 2019).

The uncontradicted evidence was that Michael had not used tobacco for nearly two decades at the time of his diagnosis. C.R. at 356-57. The presumption was met.

Second, even if the Court were to interpret the legislature’s intent under the version of the statute existing on the date of Michael’s diagnosis, the law required a similar showing of a “tobacco-free life”, but did not define the term. RSA 281-A:17, II(a)(1)(eff. July 19, 2018). In light of the Legislature’s clarification the following year that a mere 6 months of nonsmoking is sufficient to qualify, it is reasonable to interpret the predecessor statute similarly under the rule of liberal construction required when interpreting RSA 281-A, Menke, 2025 N.H. 10, ¶10, and Michael’s nearly two decades of abstinence means that for presumption purposes, he was leading a tobacco-free life when diagnosed in 2019. The presumption is satisfied here as well. (Again, not that the success of Kimberly’s claim depends on it, having made the affirmative case for causation.)

This case involved extraordinarily complex epidemiological questions of causation. The State hired three separate experts to provide written narrative reports; the claimant relied on the narrative reports of Dr. Cochran, the only expert whose live testimony was also adduced at hearing.

The written expert reports alone comprised over 100 pages of analysis and rebuttal. C.R. Ex. C. Further entered into evidence was a 487-page Toxicological Profile for Polycyclic Aromatic Hydrocarbons6 published by the U.S. Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry, C.R., Ex. E, and a 739-page Monograph published by the International Agency for Research on Cancer, specifically addressing “Occupational Exposure as a Firefighter.” C.R. Ex. F.

As it did before the CAB, the State cherry-picks comments made during Dr. Cochran’s live testimony to cast doubt on the validity of her analysis, but of course the bulk of her substantive analysis, and lengthy excerpts from peer- reviewed literature supporting her conclusions, are found in the written narratives and documentary evidence presented to the CAB.

It is well-settled that the persuasiveness of the expert opinions is for the CAB to assess. Appeal of Gamas, 138 N.H. 487 (1994) (the fact finder may reconcile competing medical evidence); Appeal of Commercial Union Ins. Co., 140 N.H. 429 6 “PAHs” are “common byproducts of combustion processes…burning fuels such as coal, wood, petroleum products, or oil, burning refuse, used tires…Diesel exhaust contains significant amounts of PAHs.” C.R., Ex. C at 136. “Once PAHs enter the body…[they] are metabolized in a number of organs and excreted in bile and urine.” C.R., Ex. C at 151 (emphasis added).

(1995) (reliance on a well-reasoned record review may support an administrative agency’s decision).

As for the three defense experts, Dr. Pulde’s curriculum vitae was not even entered into evidence. Dr. Korytko is Board certified in radiation oncology: useful for making an appropriate diagnosis of cancer, but no evident training in occupational medicine or epidemiology that would assist in determining the cause of cancer. Similarly, Dr. D’Silva is Board certified in hematology, internal medicine and oncology—again, useful for diagnosing and treating cancer, but no evident advanced training in occupational medicine to assess the work-related exposures that cause it.

Kimberly’s expert was Dr. Barbara Cochran, recognized by the CAB to be [a] specialist in internal medicine, occupational medicine, and provider of Independent Medical Examinations…Dr. Cochran testified she has been working in occupational medicine since 1990, doing workers compensation cases, U.S.

Department of Transportation physicals, injury treatment, and independent medical exams for workers’ compensation cases related to permanency and causation since 2008. Dr.

Cochran has made five presentations on cancer in firefighters between May 2019 and June 2023.

6/17/24 CAB D ECISION, pg. 4, C.R. at 358.

The crux of Dr. Cochran’s conclusion that Michael’s rare form of bile duct cancer was occupationally caused centered on his exposure to polycyclic aromatic hydrocarbons, the chemical byproducts of combustion. And although Appellant claims deficiencies in the record to support whether a 20-year veteran firefighter like Michael was actually exposed to the byproducts of combustion, even the State’s own defense expert Dr. Pulde explicitly acknowledged that “during firefighting there may be exposure to asbestos, arsenic, benzine, benzo(a)pyrene, and other polycyclic aromatic hydrocarbons (PAHs), cadmium, chlorophenols, chromium, diesel fumes, dioxins, ethelyneoxide, formaldehyde, O-toluidine, polychlorinated biphenyls, and vinyl chloride.” C.R., Ex. C at 27 (emphasis added). Each of these are Class 1 carcinogens identified by the International Agency for Research on Cancer. 7 Further, defense expert Dr. D’Silva openly conceded in the section of his report discussing risk factors for the development of bile duct cancer that “the pathogenesis of cholangiocarcinoma is also linked to environmental exposures…identifying the chemicals that increase the risk of cholangiocarcinoma, exposures to these chemicals typically occur at the workplace and are, therefore, occupational in nature. Firefighters are exposed to a number of chemicals in their dynamic work environment, and the chemicals range from innocuous to known carcinogens. Some of these exposures among firefighters include exposure to vapors and fumes of metals and organic chemicals, some of which are carcinogens. Typical exposures among firefighters are exposures to lead, antimony, cadmium, uranium, benzene, methylene chloride, polyaromatic hydrocarbons (PAH), perchloroethylene, toluene, and non-crystalline silica.” C.R., Ex. C at 110 (emphasis added).

Dr. Cochran summarized the findings from dozens of peer-reviewed studies8 to conclude that “the current scientific literature shows that these Class I carcinogens are present in the firehouse engine bays, kitchen and sleep quarters so that there is 24-hour exposure while firefighters are on duty. There is additionally exposure on the personal protective equipment of the firefighters themselves as referenced in the medical literature…And finally, it is noted that the personal protective equipment worn by firefighters are not fully protective in that the carcinogens are absorbed through the skin primarily at the neck level.” C.R., Ex. C at 35. The CAB took notice that Dr. Cochran did not simply rely on statistical evidence that firefighters in general are routinely exposed to Class I carcinogens. Rather, she confirmed, through Michael’s own recorded statements as conveyed to Dr. Pulde 9 and by direct communication with

Kimberly, that Michael was in fact exposed to these carcinogens. The CAB further heard unrebutted testimony from Kimberly that over a 20-year career, Michael would come home from fire takedowns smelling of soot (i.e., PAH), attended to jet fuel spills, and was observed blowing soot from his nose following the multi-day overhaul of the April 2017 State Street Saloon fire in Portsmouth. Tr. at 22-29. Both in her presentation and (in particular) her written reports, Dr. Cochran provided an extensive review of the relevant literature on occupational exposure in firefighters, including excerpts of medical and peer-reviewed scientific literature supporting her analysis 10, and provided a supplement regarding the specific mechanism of cancer development in firefighters. 11 Contrary to the argument made by the State that her opinion was “purely speculative”, Dr. Cochran cited and explained peer-reviewed medical literature which demonstrated “that these exposures, particularly to polycyclic aromatic hydrocarbons [PAH], are carcinogenic in humans and particularly can affect the bile ducts since PAH is excreted through the bile ducts and kidney. That means that the entire time the firefighter is on duty his biliary tree is exposed, and perhaps longer, as the rate of PAH metabolism is not known.” C.R., Ex. C at 43.

She described how the metabolic pathways for PAH include being metabolized in a number of organs and excreted in bile, urine, and breast milk. She summarized a study on the epidemiology of cholangiocarcinoma in 2004, and noted a recent increase in trend of intrahepatic cholangiocarcinoma (ICC) in the United States which is apparently yet to be well understood, as the common risk factors for that kind of cholangiocarcinoma center on liver fluke infestations and other cysts—conditions never observed in Michael. She notes that “[c]ertainly a known Class I carcinogen that is excreted through the bile ducts is very important in assessing the risk of development of cholangiocarcinoma.” C.R., Ex. C at 43. Dr. Cochran identified literature specific to cholangiocarcinoma due to occupational exposure in firefighters in both 2013 and as recently as 2018. The 2018 study evaluated exposure to asbestos with cholangiocarcinoma, providing evidence of a dose-response relationship: i.e., that frequency of exposure to an inflammation-causing carcinogen increases the likelihood of cholangiocarcinoma, and as established, PAH is a Class 1 carcinogen to which Michael was routinely exposed, and is excreted through the bile duct.

Her summary analysis and ultimate conclusion is cited at length: The anatomic site of this cancer is the bile ducts. PAH is metabolized in the liver and excreted in bile and urine with prolonged exposure to PAH. This is the pathophysiologic mechanism for carcinogenesis. PAH does occur in the environment and is ingested in various foods that individuals routinely eat. However, the concentration of PAH that firefighters are exposed to is magnitudes different than that in the environment and in normal food stuff ingestion as documented by the article cited above.

The current thinking about the etiology in terms of carcinogenesis of any carcinoma is that an individual is exposed to a substance that causes an inflammatory reaction. The inflammatory reaction causes and alters the DNA and RNA structure at the molecular level. These alterations in RNA and DNA, when those cells do divide, form tumors rather than normal cells with the tumors having an abnormal cellular matrix (See Clapp, cited previously). Other studies about cholangiocarcinoma in general have implicated inflammation in the form of biliary cholangitis which is an inflammatory disease entity as well as some other risk factors, including obesity, liver disease and other possible risk factors. The inflammation is a key component to cholangiocarcinoma and inflammation occurs in firefighting duties as delineated above.

C.R., Ex. C at 47.

Mr. Galimberti has a defined diagnosis and disease. Peer-reviewed medical literature supports the epidemiology for this disease based on the documented exposures and pathophysiologic mechanism. There are no other factors that would cause this disease and other medical causations such as flukes, [alcohol] abuse, etc. have also been excluded. Mr. Galimberti is not obese. There is no peer-reviewed medical literature that supports the thesis that [non-alcoholic fatty liver disease] is causative. At most it may be a risk, but risk does not equate with causation. There is no literature to support prior smoking as a risk factor. The diagnosis is valid with confirmation by pathology report and imaging. The conclusion is that this carcinoma is work-related.

In evaluating the totality of the medical literature as a whole, as well as the exposures that Mr.

Galimberti experienced during his firefighting career and in particular his exposures to diesel exhaust and fumes, asbestos, as well as PAH at fire scenes, as well as in jet fuel, it is my expert opinion and stated to a reasonable degree of medical certainty that these exposures caused the development of intracellular cholangiocarcinoma in Mr. Galimberti.

C.R., Ex. C at 48.

It is perfectly permissible for the CAB to have found Dr. Cochran’s explanations well-founded and well-reasoned, and on that ground adopt hers as the controlling medical opinion. Commercial Union, 140 N.H. at 431. And that is precisely what the CAB did here, concluding:

development generally and ICC in specific…while the literature on ICC cancers is agreed to be limited, Dr. Cochran has stated her opinion using parallel causation analysis and citation to the relatively small amount of specific literature to ICC. The Panel finds that the scientific basis for Dr. Cochran’s opinion is much better supported in the exhibits, the testimony, and her expert report when compared to the scientific foundation for Dr. Pulde’s opinion.

6/17/24 D ECISION, pg. 12, C.R. at 366.

Having found Dr. Cochran the more persuasive and reliable expert, as is the CAB’s prerogative under Gamas and Commercial Union, the CAB adopted her conclusions as well supported by the evidence of Michael’s career-long exposure to PAHs and the extensive toxicology studies also submitted for their review.

To a reasonable degree of medical certainty, Mr.

Galimberti’s cholangiocarcinoma of the ICC (Intracellular) type is causally related and contributed to by his exposures to multiple Class 1 carcinogenic agents in the essential functions of his long career as a firefighter. These include, but are not limited to, PAH (see also the 68 page “Case Studies in Environmental Medicine Toxicity of Polycyclic Aromatic Hydrocarbons (PAHs) from the Agency for Toxic Substances and Disease Registry (ATSDR)”) asbestos, formaldehyde, benzene and diesel fumes.

6/17/24 Decision, pgs. 6-7, C.R. at 360-61.

The panel finds Mrs. Galimberti’s medical expert to have presented a credible chain of exposures and risk factors that establish medical causation by a preponderance of the evidence. The Panel finds that there is a reasonable scientific basis for the conclusion by Dr. Cochran, that the ICC cancer found in Michael Galimberti was caused by the multiple exposures typically experienced by firefighters in general and by this person in specific.

6/17/24 D ECISION, pg. 14 (emphasis added), C.R. at 368.

Under the deference owed to the factual findings of the CAB, the Appellant cannot demonstrate by a clear preponderance of evidence that the order is “unjust or unreasonable.” Phillips, 165 N.H. at 230.

In light of the foregoing, Appellee requests that the CAB’s decision be affirmed.

By order dated October 1, 2024, this appeal was assigned for argument before the full court. Kimberly Galimberti’s argument will be presented by Attorney Jared O’Connor.

RULE 16(3)(i) CERTIFICATION The written decision appealed from begins at page 354 of the Certified Record, and the order on Motion for Rehearing begins at page 406 of the Certified Record. Both are also appended to this brief.

The within brief does not exceed 9, 500 words exclusive of pages containing the table of contents, tables of citations, pertinent text of statutes and regulations, and any addendum. (Approximately 9, 220 words of relevant text.)

I hereby certify that the within brief has been served electronically via the court’s e-file system to Kevin Stuart, Esq.