Insurer scores chance to show entitlement to reimbursement

In New Hampshire, to determine whether a worker has an impairment covered under the second injury fund, it must be considered whether the employer knew of the worker's impairment and its extent.

Case name: Appeal of the Hartford Insurance Co., No. 2010-233, 2010-234 (N.H. 05/26/11).

Ruling: In a case of first impression, the New Hampshire Supreme Court held that in determining whether an insurer can be reimbursed from the second injury fund, a worker's ability to perform his job is not determinative of whether the preexisting impairment is "a hindrance or obstacle to obtaining employment."

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What it means: In New Hampshire, to determine whether a worker has an impairment covered under the second injury find, it must be considered whether the employer knew of the worker's impairment and its extent would more likely than not significantly consider it when making a decision to hire or retain the worker.

Summary: A worker, who was diagnosed with bipolar disorder, sustained work-related cervical degenerative disk disease and left cubital tunnel syndrome. Another worker, who had diabetes, suffered a work-related injury to his wrist. In both cases, the state Department of Labor denied the employer's insurer for reimbursement from the second injury fund. The Compensation Appeals Board also denied reimbursement. The insurer appealed. The New Hampshire Supreme Court vacated the board's decision and sent the case back, finding that the board using an incorrect standard in making its decision.

In its decision, in determining whether the workers had impairments, the board relied on the workers' abilities to perform their most recent jobs and found the workers' conditions were not so serious to "constitute a hindrance or obstacle to obtaining employment." The court concluded that this was an error. The court noted that some other courts examining the issue recognize an economic disincentive to hiring a worker who may expose the employer to increased liability, regardless of whether the worker can perform the job. The court decided that a worker's ability to perform his job, or one like it, is not determinative of whether the preexisting impairment is "a hindrance or obstacle to obtaining employment." Instead, the inquiry should be whether the impairment was such that "the employer who knew of it and its extent would more likely than not significantly consider it when making a decision to hire or retain the employee."

Read more at the WorkersComp Forum homepage.

June 20, 2011

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