Background
A BAE Systems employee was injured in January 2020 while also employed by another employer. ESIS, BAE’s former insurer, paid workers’ compensation benefits using the employee’s combined weekly wages, as required for concurrent employment.
In 2020 and 2022, the insurer filed memoranda of payment with the Department of Labor. Two included handwritten notes identifying the employee’s combined wages. More than 100 weeks after the injury, the insurer applied for reimbursement from the Special Fund for Second Injuries for the additional compensation attributable to concurrent employment.
The Court’s Holding
The New Hampshire Supreme Court held that the payment memoranda did not satisfy RSA 281-A:55-a, II’s requirement that an employer or carrier notify the labor commissioner of any possible claim against the Special Fund within 100 weeks of the injury.
The statute puts the burden on the employer or carrier to communicate that it may seek reimbursement; it does not require the commissioner to infer a potential fund claim from documents filed for another purpose. The memoranda showed that benefits had been paid based on combined wages, but did not state that the insurer intended to make a possible claim against the Fund. The court reversed the Compensation Appeals Board and remanded.
Key Takeaways
- A carrier seeking Special Fund reimbursement must give notice of its possible claim within 100 weeks after the injury or death.
- Payment memoranda documenting benefits do not alone provide notice of a potential Special Fund claim.
- The Department of Labor need not infer a reimbursement claim from filings submitted for other purposes.
Why It Matters
The decision enforces the statutory notice deadline for second-injury fund reimbursement claims. Insurers and employers should make an express, timely notice to the labor commissioner when a potential Fund claim exists, even if their other filings disclose facts that could support reimbursement.