New Hampshire Workers' Compensation: Deadlines, Benefits and How to File

Any private employer that employs one or more persons must secure workers' compensation, either by buying insurance from a licensed carrier or by proving to the Labor Commissioner that it can pay benefits directly (self-insurance). Domestic workers are covered: companies that sell homeowner's, tenant's or comprehensive personal liability insurance must include workers' compensation coverage for domestics unless the employer has a separate policy. Interstate railroad workers covered by the federal FELA are excluded. A person who performs services for pay is presumed to be an employee unless the business proves the person meets every part of a seven-part independent-contractor test; people who run their own business may elect to cover themselves. An employer that purposely fails to secure coverage commits a class B felony.

Claims are barred unless the employee gives the employer notice of the injury within 2 years of the injury. If the worker did not know the nature of the injury and its possible link to the job, the 2 years start when the worker knew or reasonably should have known. The notice is in writing on a form prescribed by the Labor Commissioner, signed by the employee in duplicate, and can be delivered in person or by certified mail; the employer signs to acknowledge receipt.

Compensation for disability, rehabilitation, medical or death benefits is barred unless a claim is filed within 3 years after the date of injury. If the worker did not know the nature of the injury and its possible relationship to the job, the 3 years start when the worker (or, after a death, a dependent) knew or reasonably should have known.

No wage-loss compensation is paid for the first 3 days of disability unless the disability lasts 14 days or longer, in which case those first 3 days are paid. If an injured employee returns to temporary alternative (light-duty) work within 5 days of the injury, compensation is paid from the first day of injury.

Temporary total disability is generally 60% of the employee's average weekly wage, or 30% of the state average weekly wage if that is greater. If the employee's average weekly wage is 30% or less of the state average weekly wage, the benefit is the employee's full average weekly wage, but not more than 90% of after-tax earnings. In no case may the weekly benefit exceed 100% of the employee's after-tax weekly earnings. Temporary partial disability pays 60% of the difference between pre-injury wages and what the employee can earn afterward, for up to 262 weeks.

The maximum weekly benefit is 150% of the state average weekly wage (rounded to the nearest dollar) for the year of injury. The state average weekly wage for the prior calendar year is set by the Department of Employment Security and takes effect each July 1.

The injured employee has the right to select his or her own physician, and also his or her own pharmacy. An employer or insurer may instead meet its medical obligations through a managed care program approved by the Labor Commissioner; such programs must give reasonable access to a second medical opinion and allow treatment outside the network when needed care is not available inside it or in an emergency.

Permanent impairment is paid as a scheduled award in addition to other benefits: a set number of weeks at the compensation rate for loss or loss of use of a body part (for example, 210 weeks for an arm and 189 for a hand), reduced proportionally for partial loss of use. Injuries to the spine, spinal cord or brain, burn scarring, or more than one listed loss are rated as a percent of the whole person under the AMA Guides (5th edition) against a maximum of 350 weeks. The award is due after maximum medical improvement and is paid in a single payment. Permanent partial disability wage benefits (60% of lost earning capacity) are limited to 262 weeks; permanent total disability benefits continue while the worker cannot engage in gainful employment.

If a work injury causes death, dependents receive weekly compensation under the regular compensation schedule. Benefits to a widow or widower without dependent children stop on remarriage. A dependent child is paid until age 18, or until 25 if a full-time student, and longer if physically or mentally incapacitated. Partial dependents receive a proportional share. The employer pays burial expenses up to $10,000.

The employee gives the employer written notice of injury on the Labor Commissioner's form. If there is a dispute about the employer's or insurer's responsibility to pay, any party may petition the Labor Commissioner in writing at the Department of Labor in Concord for a hearing, stating the reasons and the questions in dispute; the hearing is to be set within 6 weeks of receiving the petition. The Department has a dispute resolution coordinator whose job is to help unrepresented injured employees understand and protect their rights.

A decision of the Labor Commissioner or hearing officer may be appealed to the Compensation Appeals Board within 30 days of the decision; the board holds a full hearing within 6 weeks and issues its decision within 30 days of the hearing. An appeal does not suspend payment of an award unless the hearing officer orders it. A party aggrieved by the board's decision may appeal to the New Hampshire Supreme Court under RSA 541. Decisions that are not appealed become final 30 days after they are issued.

An injured employee of an employer with 5 or more employees has a right to be reinstated to his or her former position on request, if the position exists and the employee can perform it with reasonable accommodations (the position counts as available even if filled by a replacement). If the position was eliminated, the employee must be reinstated to another vacant, suitable position. The right ends 18 months after the injury, when the employee takes another job, or when it is determined the employee cannot return to the former position. The Labor Commissioner may assess a violating employer all weekly wage benefits back to the date the employee was eligible for reinstatement. The workers' compensation law does not take away other rights a former employee may have to sue for wrongful termination.

The statute sets no maximum number of weeks for temporary total disability. Temporary partial disability payments stop when the disability ends and may not last longer than 262 weeks; if partial disability follows a period of total disability, the weeks of total disability are deducted from the 262 weeks. Permanent total disability benefits are payable, after the worker reaches maximum medical improvement, for as long as the total disability continues. A scheduled permanent impairment award is paid in a single payment, and awards for more than one permanent loss are limited to a maximum of 350 weeks.

Lump-sum agreements may be approved by the Commissioner of Labor once compensability has been determined (by the employer, insurer, commissioner, the commissioner's representative or the compensation appeals board) and either the worker has had at least 12 months of continuous disability or the lump sum is in the best interests of all concerned. No lump-sum agreement may be approved except after a hearing before the commissioner or the commissioner's designated representative. Medical benefits can never be lump-summed. Vocational rehabilitation costs may be included if the agreement states the amount and the services; that money is held in escrow, and the worker generally must start the services within 6 months of approval.

Fees for work before the Department of Labor must be approved by the Labor Commissioner, who considers the type, length and difficulty of the work, customary rates and the benefit to the claimant. When an employer or insurance carrier appeals and the decision for the employee is affirmed, the employee is entitled to reasonable counsel fees and costs as approved by the board or court; reasonable fees are also reimbursed when the commissioner orders a carrier to pay a disputed medical bill after a hearing.

Generally no. An employee of an employer covered by the workers' compensation law is conclusively presumed to have accepted it and waived all other rights of action against the employer, its insurance carrier or self-insurance group, and, except for intentional torts, against co-workers, officers and agents acting for the employer. A spouse or others have no direct action against them either. Exception: an employee of an employer that failed to secure compensation as required may instead pursue any available remedy at law, free of these waivers and immunities.

Yes. An injured employee may, in addition to workers' compensation benefits, sue another person whose legal liability caused the injury (or collect under an uninsured motorist policy). The employer or insurer has a lien on the recovery, less expenses and costs, for benefits already paid or awarded, and shares pro rata in the costs of the action. Any settlement with the third party is not binding until approved by the labor commissioner or the court; if the employee does not proceed against the third party within 9 months after the injury, the employer or insurer may sue and is subrogated to the employee's rights.

An employee of an employer that failed to secure workers' compensation may apply to the labor commissioner, who hears the claim like any other; the employer must pay the compensation set within 10 days, and the award becomes a lien on the employer's property enforceable like a court judgment. Alternatively, the worker may sue the employer under any available legal remedy, free of the exclusive-remedy bar. The employer faces civil penalties of up to $2,500 plus up to $100 per employee per day of noncompliance, can be barred from doing business in the state, and purposely failing to secure coverage is a class B felony; responsible officers can be personally liable for penalties.

In a dispute over benefits, any party may petition the labor commissioner in writing for a hearing; the hearing must be set within 6 weeks of the petition and a decision issued within 30 days after it. A decision of the commissioner or hearing officer must be appealed to the Compensation Appeals Board within 30 days of the decision. A party aggrieved by the board's decision may appeal to the New Hampshire Supreme Court under RSA 541, which requires a motion for rehearing within 30 days after the decision and an appeal within 30 days after the rehearing motion is denied or decided.