Appeal of Comm’r of N.H. Dep’t of Labor

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Compensation Appeals Board
Case No. 2025-0416
Citation: Appeal of Comm’r of N.H. Dep’t of Labor, 2026 N.H. 34

APPEAL OF THE COMMISSIONER OF THE NEW HAMPSHIRE DEPARTMENT
OF LABOR
(New Hampshire Compensation Appeals Board)

Argued: April 7, 2026
Opinion Issued: September 3, 2026

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Mary A. Triick, senior assistant attorney general, on the brief and
orally), for the petitioner.

Bernard & Merrill, PLLC, of Manchester (Michelle A. Broadhurst and
Samantha G. Surowiec on the brief, and Michelle A. Broadhurst orally), for the
respondent.

GOULD, J.
[¶1] The petitioner, the Commissioner of the New Hampshire Department
of Labor (the Commissioner), appeals an order of the New Hampshire
Compensation Appeals Board (CAB) granting the claim of the respondent,

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ESIS, Inc. (the Insurer), the former insurer of BAE Systems, Inc. (BAE),1 for
reimbursement from the Special Fund for Second Injuries (the Fund). See RSA
281-A:55 (2023). The sole issue on appeal is whether the Insurer provided the
Commissioner with notice of its possible claim against the Fund within 100
weeks after the injury as required by RSA 281-A:55-a, II (2023). We hold that
the Insurer did not provide the Commissioner with timely notice of its possible
claim against the Fund. Accordingly, we reverse and remand.

I. Background

¶2 The record reflects the following facts. An employee was injured on
January 7, 2020, while employed by BAE. The employee was concurrently
employed by another employer. The Insurer paid the employee workers’
compensation benefits based upon her combined weekly wages from the two
employers for whom she worked at the time of her injury. See RSA 281-A:15,
III (2023).

¶3 In 2020 and 2022, the Insurer filed memoranda of payment with the
New Hampshire Department of Labor (DOL) documenting its payment of the
employee’s workers’ compensation benefits. See RSA 281-A:40 (2023). Two of
the memoranda contained handwritten notes indicating that the employee’s
average weekly wages were based upon “combined wages of BAE & [the other
employer]” and providing the average weekly wages the employee was paid by
each employer.

¶4 On August 29, 2022, the Insurer applied for reimbursement from the
Fund. At the time, more than 100 weeks had elapsed since the employee’s
injury in January of 2020. The Insurer sought reimbursement for the
additional compensation it paid to the employee pursuant to RSA 281-A:15, III
due to her concurrent employment. See RSA 281-A:15, III (“Any additional
compensation resulting from the increase in average weekly wages due to the
employee’s concurrent employment shall be reimbursed by the special fund
created under RSA 281-A:55.”); see also RSA 281-A:55-a, I (2023).

¶5 By letter dated September 8, 2022, the Fund coordinator notified the
Insurer that its claim had been denied because the Insurer had failed to notify
the Commissioner of any possible claim against the Fund within 100 weeks
after the injury. See RSA 281-A:55-a, II; see also N.H. Admin. R., Lab
506.04(a). The Insurer asserted that the memoranda of payment provided the
Commissioner with notice of its possible claim against the Fund. The Fund
coordinator disagreed, however, concluding that the memoranda were
insufficient to notify the Commissioner of the Insurer’s possible claim against

1 CorVel Corporation is defending this appeal as the third-party administrator for Indemnity
Insurance Company of North America, BAE’s current insurer. To simplify matters, we refer to
both ESIS, Inc. and CorVel Corporation as the “Insurer” in this opinion.

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the Fund because the memoranda “are only in regard to the insurance carrier’s
obligations to make indemnity payments to the injured worker, without
reference to claim against the Special Injury fund.” The Fund coordinator
explained that “[t]here is nothing in the Memo[s] of Payment . . . that also notify
of a potential claim against the Special Injury Fund.”

¶6 The Insurer requested a hearing at the DOL. See RSA 281-A:43, I(a)
(2023). After a hearing, the hearing officer upheld the Fund coordinator’s
decision. The hearing officer concluded that the record contained no evidence
that the Insurer had notified the Commissioner of its possible claim against the
Fund. The hearing officer explained that “Memos of Payment, while
informational, do not constitute notice to the commissioner or the Fund. To
find otherwise would be to rewrite the statute to say that payment of combined
earnings, approved by the DOL, constitutes notice to the fund, without more.”
That outcome, the hearing officer reasoned, would render the notice
requirement in RSA 281-A:55-a, II superfluous.

¶7 The Insurer appealed the hearing officer’s decision to the CAB. See
RSA 281-A:43, I(c) (2023). The parties agreed before the CAB that notice to the
Commissioner “is a precondition to reimbursement from the Fund.” After a
hearing, the CAB reversed the hearing officer’s decision. The CAB observed
that “[i]t should be assumed” the DOL employee who received the memoranda
of payment “would know or should have known that the double Memos were
being submitted for purposes of such a claim even if he or she did not work
directly in the Second Injury Fund department.” The CAB cited no legal or
factual basis for the assumption underlying its decision. The CAB concluded
that “payment should be made by the Second Injury Fund to [the Insurer] for
its claim.” The Commissioner unsuccessfully moved for rehearing. This appeal
followed.

II. Analysis

¶8 On appeal, the Commissioner argues that the CAB erred when it
concluded that the Insurer notified the Commissioner of its possible claim
against the Fund no later than 100 weeks after the injury. The Insurer
counters that the memoranda of payment provided notice to the Commissioner
of its possible claim against the Fund. We agree with the Commissioner.

¶9 Our review of the CAB’s decision is established by statute. Appeal of
Lawson Group, 175 N.H. 397, 399 (2022); see RSA 281-A:43, I(c) (“Any party in
interest aggrieved by any order or decision of the [CAB] may appeal to the
supreme court pursuant to RSA 541.”). We will not set aside the CAB’s order
“except for errors of law,” unless we are satisfied “by a clear preponderance of
the evidence” before us, “that such order is unjust or unreasonable.” RSA

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541:13 (2021). The CAB’s factual findings “shall be deemed to be prima facie
lawful and reasonable.” Id.

¶10 RSA 281-A:15, III provides:

Where the employee is employed as of the date of injury
concurrently by 2 or more employers subject to this chapter and is
disabled from any such employment, “average weekly wages” shall
be computed on the basis of the weekly wages received by the
employee from all such employers at the time of the injury. . . .
The employer in whose employment the employee was injured shall
be liable in the first instance for payment of all benefits. Any
additional compensation resulting from the increase in average
weekly wages due to the employee’s concurrent employment shall
be reimbursed by the special fund created under RSA 281-A:55.

RSA 281-A:15, III; see also RSA 281-A:55-a, I. RSA 281-A:55-a, II
requires that “[a]n employer or carrier shall notify the labor
commissioner of any possible claim against the special fund as soon as
practicable, but in no event later than 100 weeks after the injury or
death.” RSA 281-A:55-a, II.

¶11 Again, in this case the Insurer did not file its claim against the
Fund until August 29, 2022, which was more than 100 weeks after January 7,
2020, when the employee suffered the injury. Nonetheless, the Insurer argues
that the memoranda of payment notified the Commissioner of its possible claim
against the Fund, specifically because two of the memoranda contained
handwritten notes saying that the employee’s average weekly wages were based
upon her combined wages from BAE and another employer. We are not
persuaded that the memoranda satisfied the statutory notice requirement. The
statute places the onus on the employer or carrier to notify the Commissioner
that it may have a claim against the Fund. See id. It does not obligate the
Commissioner to attempt to intuit from filings made for other purposes that the
employer or carrier may seek reimbursement from the Fund. See id. The
memoranda of payment notified the Commissioner only that the employee had
been paid workers’ compensation benefits in accordance with RSA chapter
281-A. See RSA 281-A:40. The memoranda, and the handwritten notes on
them, did not give notice that the Insurer intended to make a “possible claim”
against the Fund. See RSA 281-A:55-a, II (providing that an “employer or
carrier shall notify the labor commissioner of any possible claim against the
special fund” (emphasis added)).

¶12 We hold that the CAB erred when it concluded that the Insurer
provided the Commissioner with notice of its possible claim against the Fund
no later than 100 weeks after the injury as required by RSA 281-A:55-a, II. We
have considered the Insurer’s remaining arguments, and we conclude that they

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do not require further discussion. See Vogel v. Vogel, 137 N.H. 321, 322
(1994). Accordingly, we reverse the CAB’s order and remand for further
proceedings consistent with this opinion.

Reversed and remanded.

DONOVAN, COUNTWAY, and WILL, JJ., concurred; MACDONALD, C.J.,
sat for oral argument but did not participate in the final vote.