CHAPTER
Lab 200 DEPARTMENT OF LABOR HEARINGS
PART
Lab 201 POLICY AND PURPOSE
Lab 201.01 Purpose of These Rules.
The following rules are to assist interested parties in understanding and conforming
to hearings procedures established to promote and assure the conduct of a full,
fair and adequate exposition of issues and the expeditious resolution of
disputes. These rules are to be construed to secure the just, speedy and
inexpensive determination of every proceeding.
Source. #2264, eff 1-6-83; ss by #2935, eff 12-27-84,
EXPIRED 12-27-90
New. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 201.02 Purpose of Hearings. The purpose of any proceeding governed by
this chapter is to permit the department or the board to acquire sufficient
information to make a reasoned decision and to afford persons who might be
affected by a decision the opportunity to present evidence and statements prior
to the making of that decision.
Source. #5235, eff 9-27-91, EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98 EXPIRES: 7-18-06; ss by
#8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
PART
Lab 202 DEFINITIONS
Lab 202.01 “Board” means the workers’ compensation appeals
board as defined in RSA 281-A:42-a, I.
Source. #2264, eff 1-6-83; ss by #2935, eff 12-27-84,
EXPIRED 12-27-90
New. #5235, eff 9-27-91, EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 202.02 "De novo hearing" means a new
hearing which is not bound by the findings and rulings of a previous hearing
before the commissioner or hearing officer and which allows the parties to
introduce new evidence or evidence not considered by the hearing officer or
commissioner at such a hearing, subject to the provisions of Lab 205.09.
Source. #2264, eff 1-6-83; ss by #2935, eff 12-27-84,
EXPIRED 12-27-90
New. #5235, eff 9-27-91, EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 202.03 "Ex parte communication" means the
transmittal of evidence or statements concerning the merits of a contested case
to or from a hearing officer or member of the compensation appeals board
without notice to all parties to the proceeding and not done in their presence.
Source. #8922-A,
eff 7-1-07
Lab
202.04 "Panel" means the 3
member panel of the compensation appeals board of RSA 281-A:42-a, I.
Source. #8922-A,
eff 7-1-07
Lab 202.05 “Proof by a preponderance of evidence” means
a demonstration by admissible evidence that a fact or legal conclusion is more
probable than not.
Source. #8922-A,
eff 7-1-07
PART Lab 203
GENERAL RULES OF PRACTICE
REVISION NOTE:
Document
#5041, effective 1-9-91, made extensive changes to the wording, format,
structure, and numbering of rules in Part Lab 203. Document #5041 supersedes all prior filings
for the sections in this part. The prior
filings for former Part Lab 203 include the following documents:
#2264, eff 1-6-83
#2935, eff 12-27-84
Lab 203.01 Applicability. Rules in this part
shall apply to hearings before a hearing officer and appeals to the
compensation appeals board.
Source. (See Revision Note at part heading for Lab
203) #5041, eff 1-9-91; ss by #5235, eff 9-27-91, EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 203.02 Ex Parte Communication.
(a)
Except where the department is authorized by law or the rules of the
department to dispose of a matter on an ex parte basis, no person shall make an
ex parte communication to any officer or employee of the department, or member
of the compensation appeals board, who is, or would reasonably be expected to
be, involved in the decision process in a contested case governed by this
chapter. No officer or employee of the department or member of the compensation
appeals board, who is, or who would reasonably be expected to be, involved in
the decision process in any contested case governed by this chapter shall make
or receive an ex parte communication. This rule shall not prohibit communication
between the hearing officer, or member of the compensation appeals board
and the attorney general's office except when the state is a party to the
matter.
(b)
Once a hearing officer or panel of the compensation appeals board has
been assigned to adjudicate a contested matter or dispute, there shall be no
direct communication between the parties or their counsel and the hearing
officer or panel members other than in writing and with copies to all parties
of record or by telephonic conference call with all parties. The receipt by the
department of labor of an ex parte communication regarding a pending claim or
proceeding shall require immediate dissemination of such communication by the
recipient thereof provided that any inquiry regarding the status of the
proceeding shall not be prohibited.
Source. (See Revision Note at part heading for Lab
203) #5041, eff 1-9-91; ss by #5235, eff 9-27-91, EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 203.03 Notice of Appearance. All attorneys shall, upon being retained by a
client in a matter pending before the department or the compensation appeals board,
file with the department or the compensation appeals board, as the case may be,
a letter of appearance, copies of which shall be provided to all parties of
record.
Source. (See Revision Note at part heading for Lab
203) #5041, eff 1-9-91; ss by #5235, eff 9-27-91, EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 203.04 Failure to Appear.
(a)
A party to a workers’ compensation hearing or appeal who, after due
notice of hearing, fails to be present or fails to obtain a continuance shall,
unless excused for good cause shown, be subject to either:
(1) The entry of an adverse decision;
(2) A
decision by default; or
(3) Dismissal of a petition for hearing and award.
(b)
A party shall be declared to have failed to be present when that party
has not arrived or contacted the department as to the reason for being late
within 15 minutes after the scheduled start time of the hearing.
(c)
Any party to whom notice has been forwarded but fails to appear may
within 30 days of the written decision, petition to have the default
stricken. The default shall be stricken
and the case reopened if the commissioner, commissioner’s representative or
panel determines there was good cause for failing to appear:
(d)
Good cause shall include:
(1) Serious illness;
(2) Hospitalization;
(3) Incarceration;
(4) Death of a family member; or
(5) Any other unforeseeable circumstance beyond
the party’s control, that requires the party’s absence from the scheduled
hearing.
(e)
In accordance with the provisions of RSA 281-A:43 I(a), unless the absence
of the party is excused for good cause as provided in 203.04 (c) that party
shall be barred from any further action concerning an adverse decision,
decision by default or dismissal of the petition for hearing and award.
(f)
In hearings other than for workers’ compensation, the hearing shall proceed
in the absence of any party who, after due notice of hearing, fails to be
present or fails to obtain a continuance.
The hearing shall begin 15 minutes after the scheduled start time
if a party to the hearing has not arrived and has not contacted the department
as to the reason for being late. If a hearing concludes before the
non-appearing party arrives, the non-appearing party shall not be allowed to
submit testimony or evidence in the matter. The hearing officer or panel shall
require that the party present submit such evidence as the hearing officer or
panel deems necessary in order to make a ruling or decision.
Source. (See Revision Note at part heading for Lab
203) #5041, eff 1-9-91; ss by #5235, eff 9-27-91, EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 203.05 Continuances.
(a)
If a continuance is necessary, the party requesting the continuance
shall:
(1) State the reason for the request and provide
a copy in writing to all parties to the hearing, including the
department, at least 7 calendar days prior to the scheduled hearing;
(2) State the specific reason for the request;
(3) State that concurrence to the request has
been sought from the opposing party;
(4) State if opposing party objects, consents, or
takes no position on the request and
(5) State all attempts that were made to contact
opposing party, if unable to contact opposing party.
(b)
Upon the filing of the request for a continuance, as per Lab 203.05(a),
the commissioner or designated representative shall review the pleading and
determine if a compelling need exists to grant the continuance, such as:
(1) The injured employee cannot attend due to the
need for medical treatment;
(2) A key witness cannot attend;
(3) Counsel for any party has an unexpected
conflict with a trial scheduled in a state or federal court and no other
counsel is available to replace the attorney; or
(4) Some other circumstance arises affecting one
party to the hearing that would make it inequitable to hold the hearing.
(c)
A hearing shall be continued in the absence of the above process only in
an emergency situation, as determined by the labor commissioner or the
commissioner’s representative for reasons such as severe weather, death
in the family, traffic accidents, and illness.
Source. (See Revision Note at part heading for Lab
203) #5041, eff 1-9-91; ss by #5235, eff 9-27-91, EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New.
#6806, eff 7-18-98; ss by #7141, eff 11-24-99; ss by #8922-A, eff 7-1-07
Lab 203.06 Stay of Proceedings.
(a)
When the parties to a matter pending before the department are also
parties to another proceeding brought in a Court of the United States, Court of
the State of New Hampshire or of a sister state dealing with the same issues
pending before the department, either party may request a stay of the
proceedings before the department until the court proceedings have been
concluded.
(b)
A party requesting a stay shall:
(1) File the request for stay in writing with
copies to all parties of record;
(2) State the court where the case has been filed
giving the full name of the case and the docket number assigned to the case by
the court;
(3) State the issues in the case that would
warrant a stay of the proceedings pending before the department;
(4) State that concurrence to the request has
been sought from all the other parties;
(5) State the response of the other parties to
the request;
(6) If the requesting party has been unable to
contact one or more of the parties, state the attempts that were made to
contact that party or those parties and
(7) Inform the department of the outcome of the
court proceedings whether the result is a judgment, settlement, or other court
approved disposition.
(c)
Upon receipt of a request for a stay in accordance with Lab 203.06(a)
the commissioner or the commissioner’s representative shall review the request
and determine if a compelling need exists to stay the matter pending before the
department by considering:
(1) Whether the issues in the court proceeding
are identical or substantially similar to the issues in the matter pending
before the department;
(2) Whether the resolution of the proceedings in
the court will have a substantial effect on the resolution of the proceedings
before the department or render the proceedings before the department moot and
(3) Whether requiring the issue to be heard in
two forums at the same time would result in an inefficient use of governmental
resources or unduly burden the parties.
(d) The commissioner or commissioner’s
representative shall notify the parties of the decision to grant or deny the
stay no later than 20 days from the date the request is filed.
Source. #8922-A,
eff 7-1-07
Lab 203.07 Telephonic Hearing.
(a)
With the consent of all the parties, the presence of a party or the
examination of any witness may with the approval of the commissioner or the
commissioner’s representative be conducted by telephone conference call, or
video network conference provided that adequate facilities are available to
allow all parties to participate fully.
(b)
If all parties do not agree to the presence of a party or the
examination of a witness by telephone call or video networking conference, the
commissioner, commissioner’s representative or the panel shall allow the
presence of a party or the ability of a witness to testify by telephone or
video network conference upon a finding that:
(1) Adequate equipment and facilities are
available to allow all parties to participate fully in the examination, and
(2) Allowing testimony in this form is necessary
due to one or more of the following:
a. Economic hardship;
b. Illness;
c. Distance to travel to the hearing from
outside of
d. Incarceration;
e. The safety of any party to the proceedings is
at risk based upon reasonable knowledge of threats or acts of violence; or
contagious disease, or
f. It would be manifestly inequitable to deny
the requesting party use of telephone call or video network conferencing to
present the testimony.
(c)
If the commissioner or the commissioner’s representative determines that
the assessment of the witness’s credibility is necessary, telephonic testimony
shall not be allowed.
Source. #8922-A,
eff 7-1-07
Lab 203.08 Consolidation. Where the interests of justice shall be
better served without substantial prejudice to the rights of any party, the
commissioner or his representative or the board shall sever one case from
another or consolidate 2 or more cases preserving for all parties the right of
appeal from the single or several decisions previously rendered.
Source. #8922-A,
eff 7-1-07
Lab 203.09 Compelling Attendance of a Witness.
Any subpoena issued by a party to an appeal proceeding to compel the attendance
as provided herein shall be deemed issued by the commissioner under RSA
281-A:49.
Source. #8922-A,
eff 7-1-07
Lab 203.10 Standard and Burden of Proof.
(a)
The party asserting a proposition shall bear the burden of proving the
truth of the proposition by a preponderance of the evidence.
(b)
Where a presumption exists, the burden shall shift as required by
law.
Source. #8922-A,
eff 7-1-07
Lab 203.11 Control of Hearing.
(a)
In cases of disorder or refusal to comply with the rules of the hearing,
the hearings officer or chair of the panel shall use reasonable means to
control the hearing.
(b)
Parties, representatives, and witnesses shall not engage in bitter
exchanges, vulgarities, or abuse or make offensive or insulting comments. When
such an act is committed, the hearings officer or chair of the panel shall
admonish the offender reminding him that such behavior does not contribute to a
fair hearing and impedes the orderly disposition of a case.
(c)
If the offense is repeated and further admonition appears fruitless, the
hearings officer or chair of the panel shall exclude a disorderly person from
the hearing.
(d)
A disorderly person shall not lose the case because of his/her offensive
conduct or the offensive conduct of his/her representative or witness.
(e)
Notwithstanding (d) above, if a disorderly person’s offensive conduct is
so flagrant that it prevents the completion of the case, the disorderly person
shall be warned that his/her conduct shall result in a default judgment entered
for the case. Such party may reopen the
case upon submitting his/her offer of proof or argument in an orderly fashion
before the default decision becomes final.
Source. #8922-A,
eff 7-1-07
Lab 203.12 Time Period.
(a)
Unless otherwise specified, all time periods referenced in the chapter
shall be calendar days.
(b)
Computation of any period of time referred to in these rules shall begin
with the day after the action which sets the time period in motion, and shall
include the last day of the period so computed.
(c) If the last day of the
period so computed falls on a Saturday, Sunday or legal holiday, then the
time period shall be extended to include the first business day following the
Saturday, Sunday or legal holiday.
Source. #8922-A,
eff 7-1-07
Lab 203.13 Public Access.
(a)
Except for hearings under RSA 281-A, all hearings shall be open to the
public.
(b)
The hearings officer shall have the authority to limit the number of the
members of the public attending a hearing to prevent overcrowding of a hearing
room.
(c)
Members of the public shall not be admitted into a hearing room when a
hearing is in progress, until there is a recess in the hearing.
Source. #8922-A,
eff 7-1-07
PART
Lab 204 CONDUCT OF HEARINGS BEFORE
HEARING OFFICER
Lab 204.01 Requesting a Hearing. In a controversy as to the responsibility of
an employer or the employer's insurance carrier for the payment of compensation
and other benefits under the workers' compensation statute, or any party to a
wage claim, a whistleblowers' protection act claim, a proposed civil penalty
action, employment protection for members of the National Guard, State guard or
militia under RSA 110-c, or as the result of a wage adjustment
performed by the department, any party directly affected by the controversy may
petition the commissioner in writing for a hearing. The petition shall set
forth the reasons for requesting a hearing and the questions in dispute the petitioner
expects to be resolved. The
petition shall be filed with the department's office in
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 204.02 Specification of Issue. Hearings before a hearing officer shall be
scheduled for the determination of specified issues duly listed for
hearing on the hearing notice. The department shall expand the scope of a
scheduled hearing if notice of the added issues, with necessary
documentation is given to all parties at least 14 calendar days prior to the
assigned hearing date. Issues may be added at any time without such notice with
the consent of all parties.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A,
eff 7-1-07
Lab 204.03 Notice of Hearing.
(a)
The commissioner or the commissioner's authorized representative shall
schedule a hearing in
(b)
Notice of the date, time and location of the hearing shall be provided
at least 14 calendar days prior to the hearing and shall be sent to the
employee and the employer or the employer's insurance carrier or self-insurer.
(c)
A hearing shall be scheduled at some other location in the state if the
commissioner or commissioner's authorized representative determines:
(1) The hearing relocation is necessary because
the claimant or a key witness is so ill, injured or impaired as to make it
medically imprudent to require that person to travel to Concord; or
(2) The hearing relocation is necessary because
the claimant is confined to an institution and cannot be released to attend a
hearing in
(d)
The notice shall contain the section of the law by statute number and
heading relating to the issues in dispute between the parties.
(e) The notice shall contain a
statement that each party has the right to have representation by an attorney
at the party’s own expense.
(f)
Upon receipt of a notice of hearing, the insurance carrier or third
party administrator shall immediately forward a copy of same to the employer.
(g)
In lieu of mail, notice may be given in hand or by facsimile
transmission. If a letter of appearance has been filed, the representative
shall be served.
(h)
A workers' compensation hearing shall be scheduled for a date no later
than 6 weeks after receipt of the petition under Lab 204.01.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A,
eff 7-1-07
Lab 204.04 Expedited Hearing.
(a)
The commissioner or an authorized representative, shall grant a request
for an expedited hearing upon a review of a petition setting forth facts in
sufficient detail to support such a request.
(b)
Reasons for such requests shall include, economic hardship, medical
emergency or other circumstances in which a delay of a hearing would cause
irreparable harm.
(c)
The opposing party may respond to the request for an expedited hearing
or may request a continuance as cited in Lab 203.05.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #7141, eff
11-24-99; ss by #8922-A, eff 7-1-07
Lab 204.05 Withdrawal of Hearing Officer.
(a)
Upon his or her own initiative or upon the motion of any party the
hearing officer shall withdraw from any adjudicative proceedings for good
cause.
(b)
Good cause shall exist if the hearing officer:
(1) Has a direct interest in the outcome of the
matter, including but not limited to, a financial or family relationship with any
party;
(2) Has made statements or engaged in behavior
which objectively demonstrates that he or she has prejudged the facts of the
case, or;
(3) Personally believes that he or she cannot
fairly judge the facts of the case.
(c)
Mere knowledge of the issues or acquaintances with any party or witness
shall not constitute good cause for withdrawal.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED: 3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A,
eff 7-1-07
Lab 204.06 Waiver or Suspension of Rules by the
Hearing Officer. The hearing
officer, upon the motion of any party, or on his or her own initiative, shall
suspend or waive any requirements or limitation imposed by this chapter when
the suspension or waiver:
(a)
Appears to be lawful; and
(b)
Is more likely to promote the just, accurate and efficient resolution of
the pending dispute than would adherence to the particular requirement or
procedure.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91;
amd by #5658, eff 6-28-93; ss by #6631, INTERIM, eff 11-16-97, EXPIRED: 3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 204.07 Conduct of Hearing.
(a)
The party requesting the hearing shall be responsible for compiling all
written evidence to be considered by the hearing officer. This compilation shall be indexed, tabbed,
paginated and in chronological order within each tabbed section. The final compilation shall be submitted to
the hearing officer at the time of the hearing.
Members of the department of labor staff or the hearing officer shall
waive the provision upon a finding that a party cannot comply due to lack
of financial or technical resources.
(b)
All parties to a dispute subject to the provisions of this chapter shall
disclose to all the other parties all medical evidence that is to be introduced
at the hearing no later than 5 business days prior to the date of the
scheduled hearing. Parties who are
introducing non-medical evidence shall make all other parties aware of such
evidence and submissions no later than 2 business days prior to the
scheduled hearing.
(c)
Any party other than the commissioner who wishes to compel attendance of
a witness at a hearing shall follow the procedures set out in RSA 516. Depositions are allowed only upon agreement
of all parties. Depositions shall be
completed, and a transcript submitted to the department of labor and all
parties at least 7 days prior to the hearing.
(d)
If there is a clear dispute of facts between the parties in which the
credibility of testimony might determine the outcome of the hearing, the
hearing officer, on the request of a party, may sequester witnesses until they
are called to testify. However a witness
shall be sequestered only if each party, as appropriate, shall have one
individual present throughout the process to ensure neither side is placed at
an unfair advantage.
(e)
A sound recording of the hearing shall be made by the hearing officer
and the record shall be maintained by the department of labor for a period of
60 calendar days following the order or ruling by the hearing officer on the
issues presented. Any party requesting a copy of the sound recording shall be
granted access to it at reasonable times during business hours for copying purposes
at any time after the hearing decision is mailed. If a party to the proceeding
makes transcripts of hearing testimony and uses them for any purpose in any
proceeding, a copy of such transcript shall be furnished to all parties of
record. Copies of hearing tapes may be requested in writing from the
department. A reasonable fee to cover the cost of the tape and processing fee,
shall be included with the request. Any
party may have a stenographer present at a hearing provided that that party
bears the cost of the stenographer.
(f)
If a person requests a transcript of the taped record, the department
shall cause a transcript to be prepared and, upon receipt of payment for the
cost of the transcription by the requesting party the department shall provide copies
of the transcript to all parties.
(g)
At the request of a party to any proceeding involving disciplinary
action relative to an occupational license subject to the jurisdiction of the
department, the record of the proceeding shall be made by a certified short
hand court reporter provided by the agency at the requesting party’s
expense. A request for a certified
shorthand court reporter shall be filed in writing at least 10 days prior to
the day of the scheduled hearing.
(h)
The hearing officer shall at the outset of the hearing record the place,
date and issues of the hearing together with the names of those parties making
appearances.
(i)
Testimony of witnesses shall begin by the administration of oaths or
affirmations by the hearing officer.
(j)
Interpreters shall be administered an oath or affirmation to truthfully
and accurately translate, to the best of their ability, all questions asked and
answers given.
(k)
The hearing officer shall regulate the course of the hearing and shall
accept offers of proof together with all relevant evidence. The hearing officer
shall conduct the hearing in such a manner as to best ascertain the rights of
the parties and shall not be bound by common law or other rules of evidence or
by common law or other rules of procedure other than those specified under Lab
200 and RSA 541-A. Any probative and relevant evidence shall be received
by the hearing officer during the course of the hearing. However, the hearing
officer shall exclude evidence upon finding that it is irrelevant, immaterial
or unduly repetitious.
(l)
Testimony shall be offered in the following order:
(1) The party or parties bearing the burden of
proof and such witnesses as the party may call; and
(2) The party or parties opposing the party who
bears the overall burden of proof and such witnesses as the party may call.
(m)
Each party shall have the right to present a statement of his or her
position immediately prior to the close of the hearing. The party having the
burden of proof shall give its statement last.
If the hearings officer finds it necessary for additional submission of
memoranda, such submission shall be made within the time frame allowed by the
hearings officer.
(n)
A determination shall be made by the hearings officer on the basis of
evidence presented at the hearing and the hearing officer shall not consider ex
parte information, regardless of its Source. If
the submission of additional documentation is required or allowed by the
hearing officer, copies of all such documents shall be provided within the time
frame allowed by the hearing officer with copies to all opposing parties. The
non-producing parties shall be afforded 10 calendar days to object to and
comment upon such submission prior to the issuance of any order or ruling by
the department. The order or ruling of the hearing officer shall be based upon
reliable, probative and substantial evidence.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 204.08 Issuance
of a Decision.
(a)
The hearings officer shall render a ruling or decision within 30
calendar days of the close of the record of the hearing.
(b)
The hearing officer may render a decision during or at the close
of the hearing if the decision is apparent to the hearing officer.
(c)
A copy of the decision shall be furnished to each of the parties and
attorney(s) of record.
(d) Such decision shall be final 30
days after the written decision is rendered unless an appeal is taken to
the compensation appeals board or appealed under an applicable statute.
(e)
The department shall keep a final decision in its records for at least 5
years following their dates of issuance, unless the director of records
management and archives of the department of state sets a different retention
period pursuant to rules adopted under RSA 5:40.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #7141, eff
11-24-99; ss by #8922-A, eff 7-1-07
Lab 204.09 Reconsideration, Rehearing
or Clarifications.
(a)
Within 10 calendar days of the date of the hearing officer's
decision, any party to the decision may request reconsideration, rehearing,
or clarification of the decision. Any request for reconsideration,
rehearing, or clarification shall be in writing, addressed to the hearing
officer with a copy to the other party, and the commissioner.
(b) The request for reconsideration, rehearing or clarification shall:
(1) Identify each error of fact, error of
reasoning, or error of law which the moving party wishes to have reconsidered;
(2) Describe how each error causes the agency’s
decision to be unlawful, unjust or unreasonable, in respect to jurisdiction,
authority or observance of the law, an abuse of discretion or is arbitrary or
capricious;
(3) State concisely the factual findings,
reasoning or legal conclusion proposed by the moving party;
(4) State clearly the relief being requested; and
(5) Include any argument or memorandum of law the
moving party wishes to file.
(c)
Reconsideration, rehearing or clarification shall be granted only
in those instances where there is clearly a mistake or clarification is needed.
(d)
The filing of such a request shall not suspend any portion of the
decision or the 30 day period for filing an appeal to the compensation appeals
board of workers' compensation decisions, and shall not suspend any other time
limit or any other appeal method allowed by statute.
Source. #8922-A,
eff 7-1-07
Lab 204.10 Decision on Motion for
Reconsideration, Rehearing or Clarification. The department shall grant or deny the
request for reconsideration rehearing or clarification within 10 days of the
filing.
Source. #8922-A,
eff 7-1-07
PART
Lab 205 APPEALS TO THE COMPENSATION
APPEALS BOARD
Lab 205.01 Appeal.
(a)
Any party aggrieved by a decision of the commissioner, commissioner’s
representative or a hearing officer regarding a workers' compensation issue,
may appeal the same to the compensation appeals board.
(b)
All appeals shall be heard de novo.
(c) An appeal shall be taken
in writing with copies sent to all parties.
(d) All appeals shall specify
every issue being appealed.
(e) The appeal shall be filed
with the compensation appeals board no later than 30 calendar days from the
date of the decision.
(f) If a timely notice of
appeal is filed by a party, any other party may file a notice of cross-appeal
within 10 days from the date on which the first notice of appeal was filed.
(g) Late appeals may be filed
in accordance with RSA 281-A:50.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A,
eff 7-1-07
Lab 205.02 Time and Date of Hearing. The commissioner or the commissioner's
authorized representative shall schedule the appeal hearing as follows:
(a)
Notice of the date and time of the hearing shall be provided at least 14
calendar days prior to the appeal hearing;
(b)
Notice shall be sent to all parties who were sent notices in the case at
the department hearing and
(c)
If all parties agree, the 14 day notice may be waived.
Source. #8922-A,
eff 7-1-07
Lab 205.03 Procedures Prior to the Appeal Hearing.
(a) Upon the receipt of an appeal
request, the compensation appeals board shall send an acknowledgment and the
assigned docket number to all parties with a scheduling statement to be
completed and returned as soon as possible, but in no case more than 60
calendar days after mailing by the board.
(b)
The scheduling statement shall provide the following information:
(1) Name of case and docket number;
(2) Parties to the hearing and who they
represent;
(3) An estimation of the time needed to conduct
the appeal hearing,
(4) A preliminary
listing of all witnesses to be called;
(5) A listing of videotaped material and the
actual running time of these materials and
(6) All procedural issues and motions.
(c)
Any correspondence, pleading, or evidence submitted for an appeal
proceeding shall be in triplicate and include the appeal docket number. Failure
to provide the docket number on any correspondence shall result in the
documentation submitted being excluded from the file.
(d)
The members of the staff or prehearing panel shall waive (c), above,
upon finding that a party cannot reasonably comply due to a lack of financial
or technical resources.
Source. #8922-A,
eff 7-1-07; amd by #9877, eff 2-25-11
Lab 205.04 Depositions.
(a)
In any appeal proceeding before the compensation appeals board, the
testimony of a medical witness may be presented by means of a stenographic or
videotaped deposition. In all cases 3 copies of a stenographic deposition shall
be provided to the panel.
(b)
In order for a deposition of
a non-medical witness to be admitted at the hearing on the merits the party
seeking to take the deposition of a non-medical witness shall first submit a “Notice to take Deposition of
a Non-Medical Witness” at least 10 days prior to the pre-hearing conference
scheduled under Lab 205.06.
(c)
The panel at a pre-hearing
conference shall grant permission
for the taking of a deposition of a non-medical witness only upon finding:
(1) That due to illness or injury it is not
possible for the witness to appear in person at a hearing, or that the witness can not be subpoenaed to appear under the
normal procedures set out in RSA 516,
and a postponement or delay of the hearing until the witness can appear would
be prejudicial to one or both parties to the hearing, or
(2) It is more likely to promote the just,
accurate and efficient resolution of the pending dispute to allow the
deposition of the non-medical witness.
(d) In all such cases, the panel conducting the
hearing shall be provided with 3 copies of a stenographic deposition.
(e) Any party desiring to take deposition
testimony for a hearing shall provide other parties to the proceeding with a
notice at least 10 calendar days prior to the deposition stating the time, date
and location of the deposition, the name of the person being deposed, and the
name and address of the stenographer or person taking the videotaped
deposition. All depositions shall be
completed so that timely exchange of transcripts or videotaped materials may be
made at least 14 calendar days before the scheduled hearing date.
(f)
Depositions may be taken outside of the state of
(g) At the commencement of the
deposition, the party taking the deposition shall state whose deposition it is,
the name of the proceeding, where it is being taken, who the parties are that
will be asking the questions, and the date and time of the deposition. Care shall
be taken for videotaped depositions to have the witnesses speak slowly and
distinctly and to make sure that papers are readily available for reference
without undue delay and unnecessary noise. Counsel and witnesses shall comport
themselves at all times as if they were appearing in person at an appeals
hearing.
Source. #8922-A,
eff 7-1-07; ss by #9877, eff 2-25-11
Lab 205.05 Motions.
(a)
All dispositive motions, motions to exclude disclosed evidence, motions
challenging jurisdiction or raising procedural matters shall be filed in
triplicate
(b)
Objections or replies to such motions shall be filed within 10 calendar
days of receipt by the objecting party.
(c) If a motion is filed after a date is assigned
for the compensation appeals board hearing, the motion shall be heard at the
onset of the scheduled appeal and, if appropriate, the hearing shall go forward
on the merits.
Source. #8922-A, eff 7-1-07
Lab 205.06 Prehearing Conference.
(a)
The board shall schedule
a prehearing conference to consider:
(1) Any pending evidentiary, procedural or dispositive
motions with the parties stipulating to uncontested facts.
(2) Stipulations
or admissions as to issues of fact or proof by the consent of the parties.
(b)
The parties shall be given an opportunity to select a hearing
date in consultation with all parties and the compensation appeals board.
(c)
In order to select a date:
(1) All counsel and parties shall have immediate
access to their individual calendars to facilitate scheduling and;
(2) All counsel
shall be prepared to give expert witnesses, key witnesses and medical
witnesses or their representative availability dates or shall have them
be available by telephone during the prehearing conference time to confirm
the hearing date selected. All
parties shall provide a final list of witnesses to the board and other parties
that they intend to call to the appeal hearing at least 7 business days prior
to the date of the hearing.
(d) Parties shall be prepared to justify their
reason why more than 2 hours is needed for a hearing.
Source. #8922-A,
eff 7-1-07; amd by #9877, eff 2-25-11
Lab 205.07 Withdrawal of a
Panel Member.
(a)
Upon his or her own initiative or upon the motion of any party the panel
member shall withdraw from any
adjudicative proceedings for good cause.
(b)
Good cause shall exist if the panel member:
(1) Has a direct interest in the outcome of the
matter, including but not limited to, a financial or family relationship with
any party;
(2) Has made statements or engaged in behavior
which objectively demonstrates that he or she has prejudged the facts of the
case, or;
(3) Personally believes that he or she cannot
fairly judge the facts of the case.
(c)
Mere knowledge of the issues or acquaintances with any party or witness
shall not constitute good cause for withdrawal.
Source. #8922-A,
eff 7-1-07
Lab 205.08 Waiver or
Suspension of Rules by the Panel. The
chair of the panel, upon the motion of any party, or on his or her own
initiative, shall suspend or waive any requirements or limitation imposed by
this chapter when the suspension or waiver:
(a)
Appears to be lawful; and
(b)
Is more likely to promote the just, accurate and efficient resolution of
the pending dispute than would adherence to the particular requirement or
procedure.
Source. #8922-A,
eff 7-1-07
Lab 205.09 Conduct of Hearing.
(a)
Unless otherwise agreed at a prehearing conference, the appealing party
shall be responsible for compiling
all documentary evidence to be considered by the compensation appeals
board. This compilation shall be
indexed, tabbed and paginated. The final
compilation shall be submitted in triplicate, with the compensation appeals
board at the time of the hearing.
(b)
The members of the staff or prehearing panel shall waive (a), above,
upon finding that a party cannot reasonably comply due to a lack of financial
or technical resources.
(c)
Any evidence whose admissibility is in dispute may be submitted
separately from the joint submission, pending ruling on any objections.
(d) All medical evidence shall be furnished to
the opposing parties 5 business days before the hearing date. Parties who are introducing non-medical
evidence shall make all other parties aware of such evidence and submissions no
later than 2 business days prior to the scheduled hearing.
(e) In the event that a party
attempts to present evidence of submissions during the appeal hearing which were not disclosed prior to the appeal
hearing, the panel shall upon the objection of a party, not allow the
introduction of such evidence or submissions upon finding that the objecting
party would be prejudiced by its admission.
(f) Unless waived by the
parties, a sound recording of the hearing shall be made by the panel and the
recording shall be maintained by the compensation appeals board for a period of
60 calendar days following the
order or ruling of the panel on the issues presented. Copy of tapes shall be
available for a fee to cover the cost of the tape within 60 calendar days
after the appeal hearing decision is issued.
If transcriptions are made of hearing testimony and used for any purpose
in any proceeding, a copy of such transcription shall be furnished to all
parties of record. Any party may have a stenographer present at a hearing,
provided that that party bears the cost.
(g) At the request of a party,
the panel shall order witnesses other than the claimant and the employer, to be
excluded from the hearing room so that they cannot hear the testimony of other witnesses. If the employer is a corporation or entity
other than a natural person, the officer or employee designated as its
representative in the hearing shall not be a witness unless the panel at the
outset of the hearing, rules the person is essential to the presentation of the
employers' case and it was not reasonable for another person to serve as
representative.
(h) Testimony of witnesses
shall begin with the administration of oaths or affirmations. The chair shall
at the outset of the hearing,
record the place, time, date and issues of the hearing together with the names
of those parties making an appearance.
(i)
The chair is charged with regulating the course of the hearing and may
accept offers of proof together with all relevant evidence. The chair shall
conduct the hearing in such a manner as to best ascertain the rights of the parties. The chair
shall rule on all matters of evidence and procedure relative to the conduct of
the hearing. The panel through the chair shall not be bound by formal rules of
evidence. Any probative and relevant evidence shall be received by the
chair during the course of the hearing.
The panel, through the chair, shall exclude evidence on the basis
that it is irrelevant, immaterial or unduly repetitive.
(j) Each party shall have the
opportunity to present a closing statement at the conclusion of the hearing. The carrier/employer shall
make such closing statement first. In the event that the hearing has exceeded
its allotted time, the panel shall require written closing statements to be
submitted in triplicate within 7 calendar days of the hearing date.
(k) A determination shall be
made by the panel on the basis of evidence presented at the hearing and the panel shall not consider ex parte
information, regardless of its source.
If the submission of additional documentation is required or allowed by
the chair, copies of all such documents shall be provided within the timeframe
allowed by the chair with copies to all opposing parties. The non-producing parties shall be afforded
10 calendar days to object and comment upon such submission prior to the
issuance of any order or ruling by the panel.
Source. #8922-A,
eff 7-1-07
Lab 205.10 Decision of the Panel.
(a)
The panel shall render a written ruling or decision within 30 calendar
days of the close of the record of the hearing. A decision of the
panel shall require 2 like votes.
(b) The parties may, at their option, submit proposed
findings.
(c)
Each such proposed finding
of fact or ruling of law shall:
(1) Be stated in clear concise language and
(2) Consist of a single relevant fact supported
by the record with specific reference to the page number of the record or
report, which supports each request, as applicable.
(d) A party submitting proposed findings of fact
or rulings of law shall furnish the opposing party with a copy of the proposed
findings 10 days prior to the start of the hearing. The parties shall make a
sincere effort to agree on as many of the proposed findings as possible, and
shall inform the panel as to which proposed findings are agreed upon and which
are contested.
(e) Parties submitting proposed findings of fact
or rulings of law shall exercise restraint and limit the number of proposed submissions to those important to the issues
under consideration. The panel shall not be required to rule on what it
determines is an excessive number of proposed findings of fact or rulings of
law for the particular case.
Source. #8922-A,
eff 7-1-07
PART
Lab 206 APPEAL OF THE DECISION OF PANEL
Lab
206.01 Appeal. Any party to the proceeding aggrieved by an
order or decision of the panel may appeal to the supreme court pursuant to RSA
541
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A,
eff 7-1-07
Lab 206.02 Motion for Rehearing. Within 30 calendar days after a final order
or any decision issued by the panel,
any party to the action or proceeding before the panel may apply for a
rehearing in respect to any matter determined in the action or proceeding, or
covered or included in the order, specifying in the motion for rehearing the
grounds. Objections to the motion for rehearing shall be filed within 5 working
days of the request for the rehearing. The requests and objections shall be
sent with an original and 3 copies to the department of labor.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07; ss by #9877, eff 2-25-11
Lab 206.03 Specifications. Such motion shall set forth fully every
ground which it is claimed that the decision or order complained of is unlawful
or unreasonable. No appeal shall be taken unless the appellant shall have made application for
rehearing as herein provided. When such application is made, no ground not set
forth therein shall be considered by the panel. Motions for rehearing under
this section and RSA 541 shall be submitted to the compensation appeals board
with an original and 3 copies.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 206.04
Action on Motion.
(a) Upon
the filing of such motion for rehearing, the panel shall within 10 calendar days
either grant or deny the same, or suspend the order or decision complained of
pending further consideration.
(b)
A motion for rehearing shall be granted only if:
(1) Evidence is presented with the motion for
rehearing which was not available at the time of hearing which the panel
determines would change the decision rendered;
(2) The party making the motion for rehearing
demonstrates the panel was in error concerning the interpretation or
application of the applicable state statue or administrative rule; or
(3) The party making the motion for rehearing
demonstrates the decision is contrary to controlling law.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98 (formerly Lab 206.03); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 206.05 Appeal to Supreme Court. Within 30 calendar days after the application
for a rehearing is denied, or, if the application is granted, then within 30
calendar days after the decision on such rehearing, the applicant may appeal by
petition to the supreme court.
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98 (formerly Lab 206.04); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #8922-A, eff 7-1-07
Lab 206.06
Other Requirements. The
aggrieved party shall comply with all applicable provisions of RSA 541 and the
rules of the supreme court of the state of
Source. #5041, eff 1-9-91; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
New. #6806, eff 7-18-98; amd by #7141, eff
11-24-99; paragraphs (a)-(d) EXPIRED: 7-18-06
New. #8922-A, eff 7-1-07
PART
Lab 207 AWARD OF FEES AND INTEREST
Lab 207.01 Attorney Fees for Department of Labor
Workers’ Compensation Hearings.
(a)
An attorney for a claimant who prevails in a workers compensation
hearing before a hearing officer shall be entitled to attorney fees as follows:
(1) When the issue in dispute relates to the
causal relationship of the injury to employment and the injury is found
compensable, the attorney representing the claimant shall be entitled to
20% of the retroactive indemnity benefits payable out of the benefit received
from the claimant.
(2) The non-payment of medical bills pending a
resolution of the question of causal relationship shall not result in said
bills being included in the amount used to calculate the award of fees unless
the bills were disputed as provided in (3) below;
(3) When the issue in dispute is related to
specific medical bills that the carrier has denied as not being causally
related to the compensable injury or not required by the nature of the injury,
counsel fees and cost shall be payable by the carrier.
(4) If the issue in dispute relates to medical
bills and a period of disability subsequent to the case being found compensable
the attorney shall be entitled to:
a. 20% of the retroactive benefits payable out
of the benefits received from the claimant, and
b. Fees and cost paid by the carrier as a result
of disputing the medical bill issue.
(5) If the issue in dispute relates to a
permanent impairment award, the attorney representing the claimant shall be entitled
to 20% of the award payable out of that award;
(6) The attorney for a claimant who has not
prevailed at the department level but prevails on appeal to the board or State
Supreme Court shall be entitled only to the fees as awarded by the board or the
Court and shall not apply for additional fees at the department level; and
(7) The attorney for a claimant shall file a
request for attorney fees within 60 days from the date of the hearing officers’
decision or the ruling on any motion for rehearing.
Source. #6806, eff 7-18-98; ss by #7141, eff 11-24-99;
ss by #8922-B, eff 7-1-07 (formerly Lab 208.01); ss by #10960, eff 10-23-15
Lab 207.02 Award
for Fees and Interest at Compensation Appeals Board Hearings.
(a) If the claimant prevails in a contested case
appealed to the board, the employer shall pay the claimant reasonable attorneys’ fees and costs and interest on unpaid
benefits at the rate specified by statute.
(b) The claimant or his attorney shall file a
request for the payment of attorneys’ fees or interest no later than 60 days
after the board has issued its decision in the case or ruled on any motions for
rehearing.
(c) If the employer appeals a decision of a
hearing officer and prior to the appeal hearing, withdraws that appeal, the
employer shall pay reasonable attorney’s fees and costs to the employee
for preparing for the appeal hearing, unless the parties have reached a lump
sum settlement of the case or have otherwise agreed to address the fee issue.
(d) The request shall be as follows:
(1) Requests for approval of an award of
attorney's fees and costs pursuant to RSA 281-A:44, shall be submitted with an
original and 3 copies to the compensation appeals board. Such requests shall include an itemization of time,
costs, and expenses expended in pursuit of the claim before the compensation
appeals board, including professional language interpreters as well as a copy
of the fee agreement with the claimant, and
(2) Interest shall be computed from the date of
injury where compensability is in dispute in the first instance, and benefits
have not been paid, or from the date of termination or reduction of benefits
where the degree of disability is in dispute or where benefits were terminated
or reduced for some other reason. Interest payments shall be computed on
indemnity and permanency awards, excluding medical bills, except when they have
been paid out of pocket by the claimant.
Source. #8922-B, eff 7-1-07; ss by #9877, eff 2-25-11; ss by #10960, eff
10-23-15
PART
Lab 208 ETHICAL STANDARDS FOR
PARTICIPANTS IN THE HEARINGS PROCESS
Lab 208.01 Ethical Standards. Hearing officers, Board members, and legal
counsel to the department in the discharge of their official duties, and
all persons participating in the hearings process of the department, or the
board shall observe and be governed by the following ethical standards
of conduct:
(a)
Hearing officers and board members shall avoid the appearance of
impropriety in all activities. They shall conduct themselves in a manner which promotes public
confidence in their integrity and impartiality and of the hearings process of
the department in general;
(b)
Hearing officers, board
members, and legal counsel to the department shall:
(1) Perform their duties impartially and
diligently;
(2) Know the applicable laws and the
rules;
(3) Maintain order and decorum in proceedings
before them;
(4) Be patient and courteous to those persons who
participate in the hearings process; and
(5) Dispose promptly of matters heard by them;
(c)
Hearing officers and board members shall disqualify themselves
when their impartiality might be reasonably
questioned. They shall not participate in a contested case where they
have a personal bias or prejudice concerning a party or a party's
representative, or personal knowledge of disputed evidentiary facts concerning
the proceeding, or where they or a relative is a party to the proceeding
or is known by them to have a substantial interest in the outcome of the
proceeding;
(d)
Hearing officers and board members shall avoid ex parte
communications. They shall not permit private communications concerning a pending matter unless such
communications are at the same time provided to all other persons interested in
the matter.
(e)
Hearing officers and board members shall not directly or
indirectly solicit or accept any gift or gratuity from any person or party
involved in any contested matter pending before them. Gifts or gratuities
include but shall not be limited to meals, alcoholic beverages, hotel
accommodations, travel expenses, flowers and the like, but shall not
include plaques or other mementos of token value received for speaking
engagements or meals received at functions in which the department has a
specific part in the program. Gifts or gratuities received unsolicited shall be
returned to the donor. Their receipt shall be reported to the commissioner in
writing;
(f)
A person who has been employed by the department as a hearing officer
or legal counsel shall not thereafter
appear in any matter before the department on behalf of any party in any matter
where the hearing officer or legal counsel was involved in the matter
while an employee of the department. A hearing officer or legal counsel shall
not appear in any contested case before the department on behalf of any party
until the expiration of one year following termination of employment with the
department;
(g)
No member of the board shall participate directly or indirectly as a
representative or any party to a workers’
compensation proceeding before a hearing officer at the department of labor,
and
(h)
A hearing officer, or board member, or any other participant in
the hearing process who observes or otherwise becomes aware of a violation of these ethical standards
by a hearing officer or by any other participant in the hearing process shall
report such violation, in writing, to the commissioner.
Source. #8922-A,
eff 7-1-07
PART
Lab 209 RESPONSE TO PETITIONS
Lab 209.01 Petition For a Rule or Declaratory Ruling.
(a)
Any interested person may petition the commissioner to adopt, amend or
repeal a rule or to issue a declaratory
ruling which interprets a law or rule administered by the department.
(b)
Any petition for a change in rules shall include the language of the
rule the petitioner wants adopted or the text of the rule as it would be after
amended.
(c) A petition for a declaratory ruling shall
include the factual circumstances outlining the petitioners circumstances which
cause the petitioner to seek the ruling.
Source. #6805-B, eff 7-18-98; ss by #8682, INTERIM,
eff 7-15-06, EXPIRED: 1-11-07
New. #8922-A,
eff 7-1-07
Lab 209.02 Response.
(a)
Within 30 days after the submission of a petition for rulemaking, the
agency shall either deny the petition
in writing, stating its reasons for the denial, or shall initiate rulemaking
proceedings within 120 days.
(b)
The agency shall respond
to the request for declaratory judgment within 30 days.
Source. #6805-B, eff 7-18-98; ss by #8682, INTERIM,
eff 7-15-06, EXPIRED: 1-11-07
New. #8922-A,
eff 7-1-07
PART
Lab 210 PUBLIC COMMENT HEARINGS
Lab 210.01 Purpose. The purpose of this part is to provide
uniform procedures for the conduct of public comment hearings held pursuant to
RSA 541-A:11.
Source. #8922-A,
eff 7-1-07
Lab 210.02 Public Access and
Participation.
(a) Public comment
hearings shall be open to the public, and members of the public shall be
entitled to testify, subject to the limitations of Lab 210.03.
(b)
People who wish to
testify shall be asked to write on the speaker’s list:
(1) Their full name and addresses; and
(2) The names and addresses of organizations,
entities or other persons whom they represent, if any.
(c)
Written comments, which
may be submitted in lieu of or in addition to oral testimony, shall be accepted
for 10 days after the adjournment of a hearing or after the adjournment of a
postponed or continued hearing.
Source. #8922-A,
eff 7-1-07
Lab 210.03 Limitations
on Public Participation. The board’s
chair or other person designated by the board to preside over a hearing shall:
(a)
Refuse to recognize for
speaking or revoke the recognition of any person who:
(1) Speaks or acts in an abusive or disruptive
manner;
(2) Fails to keep comments relevant to the
proposed rules that are the subject matter of the hearing; or
(3) Restates more than once want he or she has
already stated; and
(b)
Limit presentation on behalf of the same organization or entity to no
more than 3, providing that all those representing
such organization or entity may enter their name and addresses into the record
as supporting the position of the organization or entity.
Source. #8922-A,
eff 7-1-07
Lab 210.04 Media Access. Public comment hearings shall be open to
print and electronic media, subject to the following limitations when such
limitations are necessary to allow a hearing to go forward:
(a)
Limitation of the number of media representatives when their number
together with the number of other members
of the public present exceeds the capacity of the hearing room;
(b)
Limitations on the
placement of cameras to specific locations within the hearing room; or
(c)
Prohibition of interviews
conducted within the hearing room before or during the hearing.
Source. #8922-A,
eff 7-1-07
Lab 210.05 Conduct of Public Comment Hearings.
(a)
Public comment hearings
shall be attended by the commissioner or the commissioner’s designee.
(b)
Public comment hearings shall be presided over by the commissioner or
the commissioner’s designee knowledgeable in the subject area of the proposed
rules who has been designated by the commissioner to preside over the hearing.
(c)
The chair or other person
presiding over the hearing shall:
(1) Call the hearing to order;
(2) Identify the proposed rules that are the
subject matter of the hearing and provide copies of them upon request;
(3) Cause a recording of the hearing to be made;
(4) Recognize those who wish to be heard;
(5) If necessary, establish limits pursuant to
Lab 210.03 and Lab 210.04;
(6) If necessary to permit the hearing to go
forward in an orderly manner, effect the removal of a person who speaks or acts
in a manner that is personally abusive or otherwise disrupts the hearing;
(7) If necessary, postpone or move the hearing;
and
(8) Adjourn or continue a hearing.
(d)
A hearing shall be postponed in accordance with RSA 541-A:11,IV when:
(1) The weather is so inclement
that it is reasonable to conclude that people wishing to attend the hearing
will be unable to do so;
(2) There is no quorum of the
board due to illness or unavoidable absence; or
(3) Postponement will facilitate greater
participation by the public.
(e)
A hearing shall be moved to another location in accordance with RSA
541-A:11,V when the original location is not able to accommodate the number of
people who wish to attend the hearing.
(f)
A hearing shall be
continued past the scheduled time or to another date in accordance with RSA
541-A:11,III when:
(1) The time available is not sufficient to give
each person who wishes to speak a reasonable opportunity to do so; or
(2) The capacity of the room in which the hearing
is to be held does not accommodate the number of people who wish to attend and
it is not possible to move the hearing to another location.
Source. #8922-A,
eff 7-1-07
PART
Lab 211 EXPLANATION OF ADOPTED RULES
Lab 211.01 Request for Explanation of Adopted Rules. Any interested person may, within 30 days of
the final adoption of a rule, request a written explanation of that rule by
making a written request to the board including:
(a)
The name and address of the person making the request; or
(b)
If the request is that of an organization or other entity, the name and
address of such organization or entity and the name and address of the
representative authorized by the organization or entity to make the request.
Source. #8922-B, eff 7-1-07; ss by #10913, eff 8-22-15
Lab 211.02 Contents of Explanation. The department shall, within 90 days of
receiving a request for an explanation of an adopted rule, provide a written
response which:
(a)
Concisely states the meaning of the rule adopted:
(b)
Concisely states the principal reasons for and against the adoption of
the rule in its final form; and
(c)
States, if the department did so, why the department overruled any
arguments and considerations presented against the rule.
Source. #8922-B, eff 7-1-07; ss by #10913, eff 8-22-15
APPENDIX
|
Rule |
|
|
Lab
201 |
RSA 281-A:42-a I; RSA
281-A:43; RSA 157-A:10-a, II; RSA
157-B:13-a, II; RSA 273:11-a, II; RSA 275:41-a; RSA 275:51, V; RSA
275:57 V; RSA 275-A:5; RSA 275-E :4,
I; RSA 541-A:30-a |
|
Lab
202 |
RSA
541-A:36; RSA 281-A:42-a,I; RSA
541-A:30-a |
|
Lab
203.01 |
RSA 281-A:42-a,
I; RSA 281-A:43; RSA 157-A:10-a, II; RSA
157B:13-a, II; RSA 273:11-a,II; RSA 275:41-a; RSA 275:51,V; RSA
275:57 V; RSA 275-A:5; RSA 275-E :4, I; RSA 541-A:30-a |
|
Lab
203.02 |
RSA
541-A:36 |
|
Lab
203.03 |
RSA 541-A:30-a |
|
Lab
203.04 |
RSA 541-A:30-a, III;
RSA 281-A:43 I(a) |
|
Lab
203.05 |
RSA 541-A:30-a
III (h); RSA 281-A:43 I (a) (b) |
|
Lab 203.06 |
RSA 541-A:30-a III |
|
Lab 203.07 |
RSA 541-A:30-a; RSA
541-A:31 |
|
Lab 203.08 |
RSA 541-A: 30-a, III |
|
Lab 203.09 |
RSA 541-A: 49 |
|
Lab 203.10 |
RSA 541-A: 30-a, III
(d) (e) |
|
Lab 203.11 |
RSA 541-A: 30-a, III |
|
Lab 203.12 |
RSA 541-A: 30-a, III
(f) |
|
Lab 203.13 |
RSA 281-A:60 (d), RSA
281-A:21-b |
|
|
|
|
Lab 204.01 |
RSA 281-A:43 I (a)
(b); RSA-157-A-10a II; RSA 157-B: 13a,II; RSA 273 II a, II; RSA 275:41-a; RSA
275:51 V; RSA 275:57 V; RSA 275-A:5; RSA 275-E:4,I; RSA 541-A:30-a
III(a)(b)(c); RSA 157-A:10-A, II; RSA 157-B:13-a, II;
RSA 273 11-a,II |
|
Lab 204.02 |
RSA 281-A:43 I (a) (b)
RSA 541-A:31 III |
|
Lab 204.03 |
RSA 281-A:43 I (a) (b)
RSA 541-A:31 III |
|
Lab 204.04 |
RSA 281-A:43 I |
|
Lab 204.05 |
RSA 541-A:30-a, III(k) |
|
Lab 204.06 |
RSA 541-A:30-a, III(j) |
|
Lab 204.07 |
RSA 281-A: 23, V (d); RSA
541-A:31 VI, VII; RSA 541-A:33; RSA 541-A:30-a |
|
Lab 204.08 |
RSA 281-A:43, I (a),
(b), II; RSA 541-A:35 |
|
Lab 204.09 |
RSA 541:3,4,5 |
|
Lab 204.10 |
RSA 541:3,4,5 |
|
Lab 204.11 |
RSA 281-A:44, VI |
|
|
|
|
Lab 205.01 |
RSA 281-A:50; RSA 281-A:43,
I(b) |
|
Lab 205.02 |
RSA 281-A:43, I (b) |
|
Lab 205.03 |
RSA 541-A:30-a III,
RSA 541-A:31, V |
|
Lab 205.04 |
RSA 517 |
|
Lab 205.05 |
RSA 541-A:30, III |
|
Lab 205.06 |
RSA 541-A:31, V |
|
Lab 205.07 |
RSA 541-A:30, III(k) |
|
Lab 205.08 |
RSA 541-A:30, III(j) |
|
Lab 205.09 |
RSA 281-A:23 V (d);
RSA 541-A:31 VI,VII; RSA 541-A:33; RSA 541-A:30-a III |
|
Lab 205.10 |
RSA 281-A:43, I (b);
RSA 281-A:42-a, I; RSA 541-A:35 |
|
|
|
|
Lab 206.01 |
RSA 281-A:43, I (c);
RSA 541 |
|
Lab 206.02 |
RSA 541:3 |
|
Lab 206.03 |
RSA 541:4 |
|
Lab 206.04 |
RSA 541:5 |
|
Lab 206.05 |
RSA 541:6 |
|
Lab 206.06 |
RSA 541 |
|
|
|
|
Lab 207 |
RSA 281-A:44, I |
|
|
|
|
Lab
208.01 |
RSA
281-A:44 |
|
Lab 208.01 (a) – (d) |
RSA 21-G:27 |
|
Lab 208.01 (e) |
RSA 21-G:25 |
|
Lab 208.01 (f), (g),
(h) |
RSA 21-G:27 |
|
|
|
|
Lab 209.01 |
RSA 541-A:29 |
|
Lab 209.02 |
RSA 541-A:29 |
|
|
|
|
Lab 210 |
RSA 541-A:16, I (b)
(3) |
|
|
|
|
Lab 211 |
RSA 541-A:11, VII |