Memoranda of Payment Do Not Satisfy RSA 281-A:55-a, II Notice of a “Possible Claim” Against the Special Fund

1. Introduction

This appeal arose from a reimbursement dispute under New Hampshire’s workers’ compensation scheme involving the Special Fund for Second Injuries (the “Fund”). The respondent insurer (ESIS, Inc., and in the posture of the appeal also referenced through CorVel as administrator for a different carrier, collectively the “Insurer”) paid benefits to an injured worker whose average weekly wage was calculated using concurrent employment wages, as required by RSA 281-A:15, III. The Insurer later sought reimbursement from the Fund for the “additional compensation” attributable to the concurrent-employment wage increase.

The Commissioner of the New Hampshire Department of Labor (the “Commissioner”) denied reimbursement on the ground that the Insurer failed to provide timely notice of a possible Fund claim within 100 weeks after the injury, as required by RSA 281-A:55-a, II. The Compensation Appeals Board (CAB) reversed, reasoning that the Department of Labor (DOL) should have inferred a possible Fund claim from the Insurer’s memoranda of payment noting “combined wages.” The Supreme Court granted review to resolve a single, outcome-determinative question: did those memoranda constitute statutory notice of a “possible claim” against the Fund within 100 weeks?

2. Summary of the Opinion

The Court reversed the CAB and remanded. It held that the Insurer’s memoranda of payment, submitted under RSA 281-A:40, served to document benefit payments but did not notify the Commissioner of the Insurer’s intent to pursue a “possible claim” against the Fund. Because the Insurer did not provide the required notice within 100 weeks after the January 7, 2020 injury, its later reimbursement application (filed August 29, 2022) was untimely under RSA 281-A:55-a, II.

3. Analysis

3.1 Precedents Cited

• Appeal of Lawson Group, 175 N.H. 397, 399 (2022)
  The Court cited this case for the governing standard of review applicable to CAB decisions—i.e., appeals proceed pursuant to RSA 541, and the Supreme Court will not set aside CAB orders “except for errors of law,” while treating factual findings as prima facie lawful and reasonable (as reflected in RSA 541:13). In this appeal, the dispositive issue was legal (what constitutes “notice” under RSA 281-A:55-a, II), making the “errors of law” prong central.
• Vogel v. Vogel, 137 N.H. 321, 322 (1994)
  The Court invoked Vogel to decline extended discussion of remaining arguments once the notice issue resolved the appeal. While not substantive to workers’ compensation, this citation signals a common appellate practice: when one legal conclusion is dispositive, ancillary points may be rejected without elaboration.

3.2 Legal Reasoning

The Court’s reasoning is grounded in statutory text, statutory function, and allocation of administrative burdens:

• Textual focus on affirmative notice of a Fund claim.
  RSA 281-A:55-a, II states that an “employer or carrier shall notify the labor commissioner of any possible claim against the special fund” as soon as practicable, but no later than 100 weeks after injury or death. The Court emphasized the statutory object of notice: not notice of injury, benefits, or wage calculation, but notice of a possible claim against the Fund.
• Function of memoranda of payment differs from Fund-claim notice.
  Memoranda filed under RSA 281-A:40 document the Insurer’s payment of workers’ compensation benefits. Even with handwritten “combined wages” annotations, the documents communicated compliance with benefit-payment rules—not an intention to seek Fund reimbursement. The Court rejected treating these benefit-payment filings as proxy Fund notices.
• Allocation of “onus” and rejection of an inference duty.
  The Court expressly held that the statute places the onus on the employer/carrier to provide notice. It “does not obligate the Commissioner to attempt to intuit from filings made for other purposes” that a Fund claim may later be pursued. This directly repudiates the CAB’s assumption that DOL staff “would know or should have known” the memoranda were submitted “for purposes of such a claim.”
• Administrative clarity and statutory coherence.
  While the Court did not rest its decision on a canon explicitly, the reasoning aligns with avoiding interpretations that effectively nullify a statutory requirement. If routine memoranda of payment automatically constituted Fund notice whenever concurrent wages were referenced, RSA 281-A:55-a, II’s specific notice obligation would be diluted into a happenstance byproduct of other filings.

3.3 Impact

• Bright-line compliance expectation for insurers and employers.
  Parties seeking reimbursement from the Fund should treat RSA 281-A:55-a, II as requiring an explicit, affirmative communication identifying a potential Fund claim—separate from ordinary benefit administration paperwork.
• Reduced administrative uncertainty for the DOL.
  The decision limits disputes over whether the Department “should have inferred” notice from file contents. It protects the DOL from being charged with constructive knowledge based on annotations embedded in unrelated submissions.
• Stronger timeliness defenses for the Fund.
  Where no distinct notice of a possible Fund claim exists within 100 weeks, the Fund has a clear basis to deny reimbursement, even if the underlying benefits were correctly calculated with concurrent wages.
• Practical influence on claims-handling protocols.
  Insurers will likely formalize internal checklists: upon paying concurrent-employment benefits (or other Fund-eligible categories), send a dedicated notice to the Commissioner well before the 100-week deadline and preserve proof of submission.

4. Complex Concepts Simplified

• Concurrent employment and “average weekly wages” (RSA 281-A:15, III).
  If an injured worker had more than one job at the time of injury, the weekly wage used to calculate benefits can include wages from all covered employers. That can increase benefits compared to using only the wages from the job where the injury occurred.
• Special Fund for Second Injuries (the “Fund”).
  The Fund reimburses certain additional costs that the employer/insurer must pay “in the first instance.” Here, the reimbursable component is the additional compensation caused by including concurrent-employment wages.
• “Notice of any possible claim” (the 100-week rule) (RSA 281-A:55-a, II).
  This is not notice of the injury or notice that benefits are being paid. It is notice that the employer/insurer may later ask the Fund to reimburse part of what it pays. The Court’s decision makes clear that the notice must communicate the possible Fund claim itself.
• Memoranda of payment (RSA 281-A:40).
  These are administrative filings showing what benefits were paid. The Court held they do not double as Fund-claim notice merely because they mention “combined wages.”

5. Conclusion

Appeal of Comm'r of N.H. Dep't of Labor, 2026 N.H. 34 establishes a clear rule of practice under RSA 281-A:55-a, II: to preserve eligibility for reimbursement from the Special Fund for Second Injuries, an employer or carrier must provide timely, affirmative notice of a possible claim against the Fund—and cannot rely on ordinary benefits documentation, even if that documentation reveals a reimbursement-eligible wage calculation. By reversing the CAB’s inference-based approach, the Court strengthens administrability, reinforces the statute’s allocation of responsibility, and provides a predictable standard that will shape how New Hampshire insurers and employers perfect Fund reimbursement claims going forward.