Injured Employee Benefits

RSA 281-A:32

A permanent impairment award, which is under RSA 281-A:32 of the New Hampshire Workers' Compensation statute, is an award for the percentage of permanent loss of use to a compensable body part. Compensable body parts are listed in the statute giving the total number of weeks allowed. The award is a separate and distinct benefit and is in addition to any other benefit being paid such as weekly compensation, medical benefits and vocational rehabilitation.

If an injury causes a permanent loss to more than one compensable body part or to the spine, the award is given on the basis of a whole person permanent impairment using a 350-week schedule.

According to RSA 281-A:32, IX, "Injury to spinal column or spinal cord shall not be construed to permit an award under this section as a result of soft tissue injury, nor to permit such an award on the basis of more than one permanent loss, unless such injury results in loss of use of upper or lower extremities."

In accordance with the Workers' Compensation statute, any medical opinion regarding permanent impairment must be based upon the 5th edition of the The AMA Guide to the Evaluation of Permanent Impairment. The AMA Guides are used in conjunction with the statute to determine the benefit to be paid.

Calculation of the award is a relatively simple formula:

1. percentage of loss multiplied by the total number of weeks
2. the number of weeks multiplied by the claimant's compensation rate
3. equals the total dollar amount of the benefit.

Example:

10% loss of an arm would be .10 x 210 (arm) = 21 weeks of benefits times the compensation rate of $325.00 or a total of $6825.00.

In order to qualify for a permanency award, the claimant must be at a medical endpoint. The average weekly wage and compensation rate to be used in computing the award is the average weekly wage of the employee at the time of injury. All awards are to be paid in a single payment.

RSA 281-A:28

The injured employee's average weekly wage is determined by totaling the gross earnings of the injured employee during the 26 weeks preceding the date of injury and dividing the total by that number of weeks. An employee can request documentation of up to 52 weeks of earnings prior to the injury to determine the number of weeks, from 26 to 52, whichever is most beneficial to them, and an adjustment shall be made to their compensation rate. That is to say, the number of weeks utilized in this formula may fall anywhere within the range of 26 to 52 weeks. If, however, the employee has been employed less than 26 weeks, the rate of hire and the actual wages can be compared, and whichever is more beneficial to the employee is the rate that should be used to determine the average weekly wage.

Each July 1, the New Hampshire Department of Labor issues notice to all carriers of the new maximum and minimum compensation rates.

Please note that the compensation rate for injuries before 2/8/94 is calculated using 66 2/3% of the injured employee's average weekly wage. For any injuries on or after 2/8/94 the compensation rate is calculated using 60% of the average weekly wage but in no event shall the weekly compensation rate exceed 100% of the employee's after-tax earnings. This includes calculations for temporary partial benefits and permanent impairment awards.

In calculating compensation rates, if the injured employee's average weekly wage equals the minimum compensation rate, or is less, the compensation rate shall be the full amount of the employee's average weekly wage but shall not exceed 90% of the employee's after-tax earnings.

Combined Earnings
An employee who is concurrently employed by two or more employers subject to the New Hampshire Workers' Compensation statute at the time of injury, is eligible to receive indemnity benefits based on the earnings from all such employers.

New Hampshire Administrative Rule Lab 506.02 Payment of Benefits and Filing of Reports (e)(7b) defines the source of incomes not included in combined earnings. They are:

1. Unreported earning
2. Uninsured self-employment
3. Federal
4. Other employment not subject to New Hampshire Workers' Compensation law

RSA 281-A:31

Temporary partial benefits are paid to an injured employee if they return to work and due to their disability are unable to earn the equivalent amount they were earning prior to their disability. The employee, or occasionally the employer, will submit the pay stubs to the adjuster so that the temporary partial benefit of 60% of the difference between prior injury earnings and post-injury earnings can be determined.

Throughout the years the time limitations for collecting temporary partial benefits has changed. Injuries prior to 1/1/91, an injured employee could collect 341 weeks of temporary partial benefits. For injuries from 1/1/91 to 2/8/94 this increased to 350 weeks. For injuries as of 2/8/94 the number of weeks was decreased to 262 weeks.

There is a 3-day waiting period for the payment of disability benefits. If the disability exceeds 14 days, the 3-day waiting period is waived.

RSA 281-A:23-b, Alternative Work Opportunities, states, "… if an injured employee returns to temporary alternative duty within 5 days of sustaining an injury, such employee shall be paid workers' compensation from the first date of injury …". That is, the 3-day waiting period is waived. This would apply even if the employee is paid full wages while performing temporary alternative duty.

The number of weeks that the injured employee was paid total disability is subtracted from the total number of weeks allowed for temporary partial disability.

If after the total number of weeks for partial disability is exhausted, and an injured employee is deemed totally disabled, temporary total disability benefits may be due.

RSA 281-A:26

Pursuant to RSA 281-A:26 and New Hampshire Administrative Rule Chapter Lab 515.08 The Authorization for Compensation for Death, weekly compensation is paid to the surviving dependents of a deceased worker if the fatality occurred as a result of an injury arising out of and in the course of employment.

The definition of a dependent can be found in RSA 281-A:2 V. The basic death benefits are contained within RSA 281-A:26 and an overview are as follows:

In a compensable case with compensation payable to a widow or widower for the benefit of herself or himself and dependent children, the commissioner shall determine what portion of the compensation shall be applied for the benefit of any such children and may order the same paid to a guardian.

In the case of the remarriage of a widow or widower without dependent children, compensation payments would cease.

In the case of the remarriage of a widow or widower who has dependent children, the unpaid balance of compensation, which would otherwise become due, shall be payable to the custodial parent or guardian as ordered by the commissioner for the use and benefit of such children during their dependency.

The employer shall pay burial expenses not to exceed $10,000.00.

Any dependent, except a widow or a widower or children, who, at the time of the injury, is only partially dependent upon the injured person's earnings shall receive such proportion of the benefits provided for those wholly dependent as the amount of the wage contributed by the deceased to such partial dependent at the time of the injury bore to the total support of the dependent.

Compensation for a dependent child shall continue until the child becomes 18 years of age, or until the child becomes 25 years of age and that child is enrolled as a full-time student in an accredited educational institution. However, if the commissioner determines that the child is self-supporting or if the child marries or is legally adopted, compensation shall cease. A dependent child who is physically or mentally incapacitated shall continue to receive compensation as long as the incapacity continues.

Compensation payable to any dependent other than the widow, widower, or children shall cease when such dependent is married, is legally adopted, or is determined by the commissioner to be self-supporting.

The carrier has the obligation to pay the cost of medical, hospital and remedial care related to the injury.

The carrier has thirty (30) days from the date of receipt of the invoice or statement to make payment or deny the bill. The denial must be in writing to the injured employee, copy to the provider and to the Labor Department, provide a reason for the denial and advise the employee of their right to request a hearing. Failure to make payment or to deny within thirty (30) days will result in a fine of up to $2,500.00.

RSA 281-A:23-b

All employers with 5 or more employees shall develop temporary alternative work opportunities for injured employees. The insurance adjuster handling a claim should determine if the insured employer does have temporary alternative duty available to the injured employee.

A task analysis is a valuable tool in the development of temporary alternative duty. The task analysis form should reflect the daily tasks performed by the employee prior to the injury. This task analysis form mirrors the New Hampshire Medical Report form and can provide the doctor with a realistic picture as to what the employee did prior to the injury. This can aid the doctor in advising the employee of limitations that have resulted due to the injury and can help the employer develop an alternative duty plan to bring the employee back to work.

Some employers have certain positions strictly set aside for temporary alternative duty and the task analysis of these positions can be forwarded to the treating physician for approval by the doctor as to whether the employee can perform the tasks.

If an offer of physician-approved temporary alternative duty is refused by the injured employee, the carrier can write to the Department of Labor, copy to the employee, requesting a termination or a reduction of benefits.

The key to a successful temporary alternative duty program is communication between the parties. If the employee, physician and adjuster are aware that there is light-duty work available, there can be a smooth transition from total disability to a successful return to work.

RSA 281-A:25-a

As per RSA 281-A:25-a and New Hampshire Administrative Rule Chapter Lab 504.05 Reinstatement of Employee Sustaining Compensable Injuries , an employee of an employer who employs five (5) or more employees, who has sustained an injury, shall be reinstated by the employer to the employee's former position of employment within eighteen (18) months.

• If the date of injury is unclear then the 18 months shall be determined from the date of first medical treatment; or,
• In the event of a recurrence of symptoms, which result in temporary restrictions, the employer shall be obligated only to provide temporary alternative work within the 18 months from the date of injury or date of first medical treatment.

An employer shall not be obligated to provide the former position to:

• An injured employee of a construction contractor if the project is completed, unless another project is ongoing.
• A temporary employee, except that a temporary employee shall not include an employee of a temporary agency;
• An employee who has been given permanent restrictions by his or her treating physician and who is not released to return to work at his or her former position; or
• An employee unable to return to work within 18 months from the date of injury.

RSA 281-A:29

An injured employee is entitled to an adjustment in the weekly compensation rate, per RSA 281-A:29, if the following criteria are met. The employee shall be eligible for the adjustment if:

1. They are receiving total disability benefits from workers' compensation as of the third anniversary date of their injury.
2. Have been denied Social Security benefits.
3. Are receiving less than 60% of the current state average weekly wage.

(For injuries prior to 2/8/94, the employee must be receiving less than 66% of the current state average weekly wage).

RSA 281-A:25

Overview

The New Hampshire Workers' Compensation Law provides for Vocational Rehabilitation services to injured workers who are unable to return to the kind of work for which they have training or experience. What exactly does that mean? If you are injured on the job and that job requires a certain type of training or education or a certain amount of work experience, and you cannot return to that job because of your injury, then you are likely to be eligible for Vocational Rehabilitation services.

What is Vocational Rehabilitation?

Vocational Rehabilitation is the provision of services that shall restore the employee to, or as close as possible to, his or her prior earning capacity as measured by the employee's average weekly wage. Average Weekly Wage (AWW) is the average amount of wages you have earned weekly over a period of time prior to your injury. It is also the amount on which your weekly compensation checks are based. You may request more information on this from your workers' compensation insurance carrier or the Department of Labor's claims staff.

Although Vocational Rehabilitation services are provided in a variety of settings, Workers' Compensation Vocational Rehabilitation is provided by private rehabilitation companies, which are staffed by Certified Vocational Rehabilitation Providers. The services they provide are regulated and monitored by the Department of Labor to ensure compliance with the law.

What is a Vocational Rehabilitation Counselor?

Vocational Rehabilitation services are provided by individuals who are Certified Vocational Rehabilitation Providers (CVRP). This designation is acquired through training, experience, and/or national certification. For New Hampshire cases, the CVRP designation is required for those who provide Vocational Rehabilitation services. This means that the person providing Vocational Rehabilitation services to you (no matter where you live) is qualified to do so and is aware of the laws and ethics involved.

What are Vocational Rehabilitation Services?

There are a variety of services offered by Vocational Rehabilitation. Examples of these would be vocational counseling, vocational testing, job seeking skills training, job development services, and vocational exploration. Vocational Rehabilitation services vary according to your physical capacities, as established by a physician, your average weekly wage, your prior training, work experience, education, age, and the level of the hierarchy selected.

Vocational Rehabilitation is provided in a hierarchy of services, in other words, in a very specific order. The job of the CVRP is to work with you, step by step (beginning at step one) through the hierarchy, until you reach the level where you can return to work, with the expectation that you will regain your average weekly wage.

The hierarchy of services is as follows:

• Return to same job, same employer;
• Return to same job modified, same employer;
• Return to different job, same employer;
• Return to same job, different employer;
• Return to same job modified, different employer;
• Return to different job, different employer;
• On the job training;
• New skill training or retraining;
• Other educational/academic program; and
• Other.

What is Temporary Alternative Duty (TAD)?

As you regain work capacity, your Vocational Rehabilitation counselor may assist you in returning to temporary alternative duty with your employer. Temporary alternative duty is made up of duties, which you can fulfill at your present employer with your doctor's permission. It may be only a few hours a day until you regain your maximum work capacity. It is not a permanent new job and is intended to allow you to be productive while you recover from your injury. Should you not regain your previous work capacity, it may still be necessary to seek a new type of work or employer.

What are Your Obligations?

When you have been provided with a work release from the physician, it is your obligation to look for work. The Vocational Rehabilitation process is designed to assist you in your return to work.

How to Become a Certified Vocational Rehabilitation Provider (CVRP)

Vocational Rehabilitation - Provider Certification - RSA 281-A:68

Effective October 3, 1997, anyone providing vocational rehabilitation services in any state to a NH Workers' Compensation recipient must be certified by the NH Department of Labor. You must be certified before providing services. In order to become certified, please read New Hampshire Administrative Rule Chapter Lab 516 Certification of Vocational Rehabilitation Providers carefully and complete the Application for NH Vocational Rehabilitation Provider Certification Form. Send the original completed and signed application form with the necessary attachments to:

Vocational Rehabilitation Coordinator
NH Department of Labor
95 Pleasant Street
Concord, NH 03301

Send no money. After your application has been approved, you will receive an invoice for payment. Once payment has been received, a card with your certification number will be mailed to you. Without certification you cannot provide vocational rehabilitation services.

Who do I Contact with Questions?

Questions concerning Vocational Rehabilitation services will be answered by the personnel in the office of the Vocational Rehabilitation Coordinator at the Department of Labor. This office may be reached directly by dialing (603) 271-3176. The NH in-state toll free number is 1-800-272-4353.

Vocational Rehabilitation Formats

These are the formats a CVRP is required to follow when submitting these required documents to the New Hampshire Department of Labor. Please refer to New Hampshire Administrative Rules Chapter LAB 509 Vocational Rehabilitation for further directions.

• Rehabilitation Referral Form
• Rehabilitation Closure Form
• Individual Written Rehab Plan (IWRP)
• Rehab Training Agreement
• NH Vocational Rehabilitation Provider Certification Form