CHAPTER
Lab 500 WORKERS' COMPENSATION CLAIMS
Statutory
Authority: RSA 281-A:60
PART Lab 501 PURPOSE AND POLICY
Lab 501.01
Purpose. This chapter sets
forth the policies of the department of labor about how parties in the workers’
compensation process substantially comply with the duty to compute and pay
compensation, the method of record keeping and filing of forms, the content and
format of forms, the content and handling of medical information, and the procedures
for assuring all parties’ rights throughout the workers’ compensation process
including hearings and appeals.
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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 501.02
Compliance. In order to comply with the statute and administrative
regulations, all employers subject to the statute or their carriers shall pay
benefits in amounts, manner and when due, as provided by the statute and this
chapter. Employers and carriers shall
comply with the provisions of the statute and this chapter, without fail, so
that when they have knowledge of an occupational injury or disease, or when a
claim as to an alleged occupational injury or disease is made by an employee,
they shall act with due regard for his or her constitutional right of due
process.
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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
PART
Lab 502 DEFINITIONS
REVISION
NOTE:
Document #5235, effective 9-27-91, made extensive changes to the
wording, format, structure, and numbering of rules in Part Lab 502. Document #5235 supersedes all prior filings
for the sections in this part. The prior
filings for former Part Lab 502 include the following documents:
#2264,
eff 1-6-83
#2935,
eff 12-27-84, EXPIRED: 12-27-90
#5041,
1-1-91
Since rules are effective for 6 years,
most sections of Lab 502 expired for approximately 8 months between Documents
#5041 and #5235.
Lab 502.01
"Benefits" mean disability compensation under RSA 281-A:23
II, RSA 281-A:23-b, RSA 281-A:25- a ,RSA
281-A:26, RSA 281-A:28, RSA 281-A:29, RSA 281-A:31, RSA 281-A:32, RSA 281-A:33,
and RSA 281-A:37 and medical or rehabilitation costs under RSA 281-A:23, and
RSA 281-A:25 respectively.
Source. (See Revision Note at part heading for Lab
502) #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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 502.02 "Carrier" means the duly licensed
insurance company which, pursuant to RSA 281-A:5, I and RSA 281-A:6, secures
the payment of compensation for an employer subject to the statute.
Source. (See Revision Note at part heading for Lab
502) #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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 502.03 "Carrier identification number"
means a 3 digit number assigned to the carrier by the
Source. (See Revision Note at part heading for Lab
502) #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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 502.04 "Case" means a claim within an
administrative or adjudicatory process.
Source. (See Revision Note at part heading for Lab
502) #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 502.03); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 502.05 "Coverage" means workers' compensation
insurance.
Source. (See Revision Note at part heading for Lab
502) #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 502.04); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 502.06
“Days” means calendar days, unless otherwise specified.
Source. (See Revision Note at part heading for Lab
502) #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 502.05); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 502.07 "Employee" means any person, in the
service of an employer who is, or who has elected to be, subject to the
workers' compensation law specifically RSA 281-A:2, VI, VII, VIII and RSA 281-A:3.
Source. (See Revision Note at part heading for Lab
502) #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 502.06); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07;
ss by #11067, eff 4-1-16 (from lab 502.06)
Lab 502.08 "Employer" means any subject
private or public entity that has one or more employees, other than 3 executive
officers of a corporation, pursuant to RSA 281-A:2, VIII, RSA 281-A:2, IX, and
any other person who has elected to be subject to the workers' compensation
law, RSA 281-A:3. Except where the
context specifically indicates otherwise, the term employer shall be deemed to
include the employer’s insurance carrier or any association or group providing
self-insurance to a number of employers.
Source. (See Revision Note at part heading for Lab
502) #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 502.07); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07;
ss by #11067, eff 4-1-16 (from Lab 502.07)
Lab 502.09 “Employer identification number" means
the federal identification number assigned to an employer by the Internal
Revenue Service.
Source. (See Revision Note at part heading for Lab
502) #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 502.08),
EXPIRED: 7-18-06
New. #9019, eff 11-1-07;
ss by #11067, eff 4-1-16 (from Lab 502.08)
Lab 502.10 "First aid treatment" means any
one-time treatment that generates a bill less than $2,000.
Source. (See Revision Note at part heading for Lab
502) #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 502.09); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07;
ss by #11067, eff 4-1-16 (from Lab 502.09)
Lab 502.11
“Form” means a document for the collection of specific data, and except
where the context specifically indicates otherwise includes both paper and
electronic formats.
Source. (See Revision Note at part heading for Lab
502) #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 502.10); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 502.12 “Poster" means the employer's notice of
compliance with the insurance coverage provisions of the statute.
Source. (See Revision Note at part heading for Lab
502) #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 502.11); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07;
ss by #11067, eff 4-1-16 (from Lab 502.10)
Lab 502.13 “Rehabilitation provider" means any
person providing physical rehabilitation services and/or remedial or
restorative care.
Source. #6806, eff 7-18-98 (formerly Lab 502.12); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07;
ss by #11067, eff 4-1-16 (from Lab 502.11)
Lab 502.14 “Special Officer” means a person employed as
a law enforcement officer by any political subdivision of the state for a
temporary or specific purpose, or who was duly appointed by the appointing
authority and works part-time.
Source. #11067, eff 4-1-16
Lab 502.15 "Statute" means the Workers'
Compensation Law, RSA 281-A.
Source. #11067, eff 4-1-16
(from Lab 502.12)
Lab 502.16 "Vocational
rehabilitation provider" means any person who provides vocational
rehabilitation services, such as job placement, job analysis, aptitude testing,
labor market surveys and vocational counseling.
Source. #11067, eff 4-1-16
(from Lab 502.13)
PART Lab 503 RESPONSIBILITIES OF ALL PARTIES
Lab 503.01
Disclosure of Information.
(a) No claimant's representative,
carrier, employer, attorney, vocational consultant or
any representative of any party shall send anything in writing, including
electronic communication, to the department or any of its personnel concerning
a case before the department without simultaneously by the same method sending
a complete copy with enclosures to the opposing party and any other party of
record. A copy of all department written
communication shall be sent simultaneously to all other parties. All written
communication shall indicate the parties copied.
(b)
Upon request, the claimant shall sign a medical authorization for the
employer or his representative to obtain medical records for any condition the
claimant claims is related to the work injury or which the employer has reason to believe is relevant to
the work injury. Such authorization shall state in bold print
in a font size at least 2 points larger than that used in the request:
(1) “This request is strictly
limited to medical information relevant to the occupational injury or illness
that underlies the patient’s workers’ compensation claim, including any past
history of complaints of, or treatment of, a condition similar to that claim.”
(c)
Any written communication including electronic communication to a
treating physician or other practitioner by the employer or his representative
or by the claimant or his representative shall be sent simultaneously by the
same method to the opposing party. Any
enclosures sent with the request shall also be sent simultaneously to the
opposing party.
(d)
Upon request, the claimant or the claimant's representative, or the
employer or his representative shall be sent complete copies of the following:
(1) All responses to communications described in
paragraph (c) of this section;
(2) All medical and any other examination or
treatment records together with a copy of the employer's correspondence with
the examiner or practitioner; and
(3) All vocational consultant reports and any
written communication sent or received from any person or entity contacted in
the vocational rehabilitation process.
(e)
Copies of correspondence among parties shall not be sent to the
department unless required by specific rule or statute or the correspondence
requests an action by the department.
(f)
Any employer or carrier who receives a medical record which is clearly irrelevant
to the case and sends such record, or a copy of it, to another person not
authorized to receive such record shall be assessed a civil penalty up to
$2,500 pursuant to RSA 281-A:23 V, (a) (3) and pursuant to Lab 508.02.
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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 503.02 Health Care Provider Referrals.
(a)
Any party in a claim may notify the commissioner in writing of any issue
concerning health care provider referrals as described in RSA 281-A:23, IV. Copies of all notifications shall be provided
to all parties in the claim and to the health care provider in question and
shall include documentation or evidence regarding the basis of such issue.
(b)
If the commissioner's decision as to the appropriateness of the referral
is disputed, the objecting party may request a hearing at the department.
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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
PART Lab 504 RESPONSIBILITIES OF EMPLOYERS AND THEIR
REPRESENTATIVES
Lab 504.01
Availability of Forms.
(a)
Employers shall familiarize themselves with the provisions of the
statute and these rules.
(b)
Employers shall obtain from their carriers a
sufficient quantity of "Workers' Compensation Law - Notice of
Compliance" which shall indicate the current carrier's name.
(c)
Employers shall display the notices conspicuously for potential viewing
by every employee, thereby giving notice that:
(1) The statute applies exclusively with respect
to all occupational injuries and illnesses;
(2) Payment of benefits is actually
secured in accordance with RSA 281-A: 5; and
(3) The carrier whose name appears on the poster
is liable for payment of benefits.
(d)
Employers shall keep informed regarding the address of their carrier's
nearest claims office.
(e)
Employers shall obtain from their carrier or have electronic access to
the following forms:
(1) “Notice of Accidental Injury or Occupational
Disease”, form 8aWCA (7/2014), contained in Appendix II;
(2) “Employer’s First Report of Injury”, form 8WC
(7/2019), contained in Appendix II;
(3) “Employer’s Supplemental Report of Injury”,
form 13WCA (3/2014), contained in Appendix II; and
(4) “Wage Schedule”, form 76WCA (9/2015),
contained in Appendix II.
(f)
Employers shall advise injured employees regarding their rights under
the statute and this chapter and assist them in expediting their claims.
(g)
Employers shall cooperate with all parties having a valid interest in a
case in such manner as to ease its processing.
(h)
Employers shall remove, upon changing carrier, all forms referencing the
former carrier and replace them with forms furnished by the carrier assuming
the risk.
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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 504.02 Record Keeping and Filing of Reports.
(a)
Employers shall record work-connected injuries and diseases in
sufficient detail and keep same for a period of 5 years from date of injury for
future reference. The “Notice of
Accidental Injury or Occupational Disease” form 8aWCA (7/2014), contained in
Appendix II together with the “Employer’s First Report of Injury” form 8WC (7/2019),
contained in Appendix II, when satisfactorily completed shall constitute proof
of compliance with the foregoing requirement.
(b)
Employers shall direct injured employees to complete and make available
the “Notice of Accidental Injury or Occupational Disease”, form 8aWCA (7/2014)
contained in Appendix II; as soon as possible with respect to any
injury or disease which requires medical attention. Acknowledgment of receipt of such notice
shall be given by signing and giving the employee his copy pursuant to RSA 281-A:
19, RSA 281-A: 20.
(c)
Employers, self-insured or insurance carriers shall complete and file
electronically or in writing, to the department, an "Employer's First
Report of Injury” form 8WC (7/2019), and simultaneously send that report to the appropriate insurance
carrier.
(d) “Employer’s
First Report of Injury” form 8WC (7/2019), contained in Appendix II, shall be
completed and filed as soon as possible
after gaining knowledge of the work-connected injury or disease, but no later
than 5 days thereafter, in accordance with RSA 281-A:53.
(e) The filing of the first report shall in no way
prejudice the employer's right to contest the compensability of the claim at a
later date.
(f)
The absence of the “Notice of Accidental Injury or Occupational Disease”
form 8aWCA (7/2014) contained in Appendix II shall not excuse the employer from
complying with these provisions.
(g)
Unless the employer disputes the compensability or the amount of the
bill, for any injury that required only first aid treatment, the employer may
choose not to send the first report to the carrier required by (c) if that
employer pays the bill within 30 days.
(h) If the injury that resulted in first aid
treatment requires further treatment or, results in lost time from work, the
employer shall notify the carrier of the injury.
(i) If an employer fails to file a “First Report
of Injury” form 8WC (7/2019), contained in Appendix II, or files the first
report of injury form beyond the statutory time frame, a civil penalty of up to
$2,500.00 shall be assessed against the employer or their carrier or the agent
who was responsible for the transmission of the form pursuant to Lab 508.02.
(j)
Employers shall complete and file with the department, with a copy sent
to carriers nearest claims office, an “Employer’s Supplemental Report of
Injury”, form 13WCA (3/2014), contained in Appendix II;
in
the following instances:
(1) No later than 7 days after the first day of
disability if the Employer’s First Report of Injury form 8WC (7/2019),
contained in Appendix II did not indicate such disability as per RSA 281-A:53;
(2) Upon an employee's return to work after a
period of compensable disability; should an employee's earnings after a return
to work result in a lesser amount than prior to the injury, such information
shall be included in the supplemental report; or
(3) If the employee has a subsequent period of
disability.
(k)
Employers shall complete and make available to the carrier two copies of
the “Wage Schedule”, form 76WCA (9/2015) contained in Appendix II or record of
gross earnings pursuant to Lab 506.02 (b). Employers shall report the weekly
wages on the basis of gross wages, including pay for overtime work, vacation pay,
commission, and bonuses for the periods to which such payments apply and also
including when applicable, the reasonable value of board, rent, housing,
lodging, fuel or other similar advantage furnished by the employer as in RSA
281-A: 2, XV, RSA 281-A: 15. Employers
shall note the reason for weeks of zero earnings.
(l) In the event of a claim pursuant to RSA
281-A:15, III, relative to combined earnings, the employee's concurrent
employer(s) shall, upon request by the employee, complete and make available
the “Wage Schedule” 76WCA (9/2015) contained in Appendix II as prescribed in
(k).
Source. #2264, eff 1-6-83; ss by #2935, eff 12-27-84;
amd by #4854, eff 6-29-90; amd
by #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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 504.03 Job Modification Reimbursement.
(a)
Employers who desire to invoke the reimbursement provisions of RSA
281-A: 54, IX, shall file proof of eligibility with the department. The
reimbursement request shall be preceded by submission of the plan for modification
to the commissioner.
(b)
In order for the plan to be approved by the commissioner, the plan shall
include:
(1) Supporting documentation showing proposed
costs for labor services, material and equipment;
(2) A statement itemizing and describing the
specific job modifications which are necessary as a result of the employee's
impairment from the work related injury with the employer; and
(3) Medical evidence indicating that the employee
has been released for work or will be released for work.
(c)
After approval of the plan by the commissioner, and after completion of
all job modifications, the employer shall certify to the department in letter
form the expenditures accompanied by the signature of the employee.
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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 504.04 Development of Temporary Alternative Work.
(a)
All employers with 5 or more full time employees shall provide temporary
alternative work programs to bring injured employees back to work.
(b)
Temporary alternative work shall be limited and transitional in nature.
For the purpose of this provision, transitional means the duty elements are
variable as the employee's work capacity increases.
(c)
The employer shall advise employees that there is a written alternative
work program in place and advise employees of the established procedures to
obtain alternative work in the event of an on-the-job injury.
(d)
The employer shall develop an outline of each position that details
present requirements and essential functions of each job within the
organization at the time of injury if lost time or restrictions are
involved. The employer may use the “NHWC
TASK ANALYSIS”, form 23-b WC (9/2015), contained in Appendix II.
(e)
The employer shall review each position outline in conjunction with its
joint loss management committees as described in Lab 603. This review shall
begin with those positions which experience most workplace injuries. Together
they shall develop and describe a policy or process that facilitates return to
work.
(f)
The employer shall provide the treating physician with the appropriate
outline of the present position with an essential task analysis as soon as
possible after the injury occurs if lost time or restrictions are involved. The employer and employee shall have a joint
responsibility to obtain needed medical information that will enable the
employee to gradually increase his or her duties to bring the employee back to
their original position.
(g)
The employer shall offer a position as approved by the treating
physician and the employee shall demonstrate a reasonable effort to comply.
Source. #5913, eff 10-18-94; 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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 504.05 Reinstatement of Employee Sustaining
Compensable Injuries.
(a)
An employer of 5 or more full time employees shall reinstate an employee
with a compensable injury to their former position within 18 months if that
position is available, as follows:
(1) If the date of injury:
a. Is clear, then the 18 months shall be
determined from the date on which the injury occurred; or
b. Is unclear, then the 18 months shall be
determined from the date of first medical treatment; and
(b)
An employer shall not be obligated to provide the former position to:
(1) An injured employee of a construction
contractor if the project is completed, unless another project is ongoing;
(2) A temporary employee, except that a temporary
employee shall not include an employee of a temporary agency;
(3) 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
(4) An employee unable to return to work within
18 months from the date of injury.
Source. #5892, eff 9-2-94; 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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
PART Lab 505 RESPONSIBILITIES OF SELF-INSURED EMPLOYERS
Lab 505.01 Dual Capacity.
(a) An employer holding a self-insurance permit shall:
(1) Perform all functions required of an employer and an insurance carrier by these
rules and
(2) Be subject to all civil and other penalties attaching
to non-compliance with the statute and rules applicable to employers and carriers.
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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
PART Lab 506 RESPONSIBILITIES OF CARRIERS
Lab 506.01
Claims Processing.
(a)
Carriers shall familiarize themselves with the provisions of the statute
and these rules.
(b)
Carriers shall obtain and maintain a supply of mandated state forms
which they shall supply to their insured’s and their own claims offices.
(c)
Carriers shall keep their insured informed of the current address,
telephone number, and email
address of their nearest claims office.
(d)
Carriers shall provide facilities within the state to service claims.
(e) If the carrier elects to substitute an
unaffiliated adjustment service, or a third party administrator, it shall:
(1) Confirm that the third party administrator is
licensed by the state;
(2) Delegate sufficient authority to comply with
the statute and these rules;
(3) Notify the department of labor and the
injured worker;
(4) Notify the department and injured worker of
any subsequent change in the election of the third party as soon as possible
after the change is made to the department and injured worker; and
(5) Include in each notification shall include
the claim number, the address, the email address, and phone number of the third
party administrator.
(f) Carriers shall process all claims as quickly
as possible. After receiving the first
notice of a claim, the claim shall be paid or denied within 21 days as provided
in Lab 506.02.
(g)
Carriers shall promptly and critically review employers' supplemental reports for the purpose of making a
determination as to compensable disability within 21 days of receipt of the
report.
(h)
The carrier or self-insurer who determines that a medical examination of
an injured employee is needed under RSA 281-A: 38 shall:
(1) At least 10 days prior to the scheduled
examination, notify the employee by letter, copy to the department, of the time
and place of the examination;
(2) Set forth the employee's rights, obligations
and possible penalties under RSA 281-A: 38 and RSA 281-A: 39;
(3) Provide transportation to the examination if
needed and requested or reimburse the claimant for mileage and toll costs to
the examination as provided by Lab 506.02 (i).
(4) Not schedule an examination more than 50
miles radius from the employee's current residence, unless a waiver has been
obtained from the commissioner, as
follows:
a. Provide
the current address of the injured worker and the address of location of the
proposed examination;
b. Demonstrate to the commissioner there is no
qualified independent medical provider available within the 50-mile radius who
will perform the examination;
c. Demonstrate that unique circumstances exist
that would make scheduling an independent medical examination outside the
50-mile radius necessary;
d. Obtain the waiver prior to the scheduling of
the examination;
e. State that the concurrence to the request has
been sought from the opposing party;
f. State that the opposing party objects,
consents or takes no position to the request;
g. State all attempts that were made to contact
the opposing party, if unable to contact or elicit a response; and
h. Receive a response from the commissioner
within 10 days of the request;
(5) Not schedule more than 2 examinations within
a year’s time, unless they have obtained a waiver from the commissioner as
follows:
a. Demonstrate that the injured workers condition requires an independent
medical examination by a practitioner in a different specialty; or.
b. Demonstrate that a change in the injured
workers condition has occurred since the last independent medical examination
that necessitates a review of the current treatment; or
c. Indicate that an intervening incident has occurred since the last independent
medical examination that requires additional review of current treatment or;
d. Demonstrate
that unique circumstances exists that would make scheduling an additional
examination necessary.
e. Obtain
the waiver prior to the
scheduling of the examination;
f. State
that concurrence to the request has been sought from opposing party;
g. State
if opposing party objects, consents, or takes or takes no position to the
request;
h State all attempts that were made to contact
opposing party, if unable
to contact or elicit a response; and
i. Receive
a response from the commissioner within 10 days of receipt of the request; and
(6) Determine
that the health care provider is certified by the appropriate specialty board
as recognized by the American Board of Medical Specialties or the health care
provider shall have obtained the approval of the commissioner for those
specialties not recognized by such board by fulfilling requirements
substantially similar to those of the American Board of Medical Specialties.
(i) Failure to comply with (h), above, shall
preclude the carrier from suspending benefits for the employee’s failure to
comply.
Source. #2256, eff 1-2-83; 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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 506.02 Acceptance or
Denial of Claims and Filing of
Reports and Payment of Benefits.
(a)
If upon investigation it is determined that the claim is compensable,
the carrier or employer within 21 days of notification of claim or period of
disability shall:
(1) Pay compensation to the injured employee;
(2) Complete and file a “Memo of Payment”, form
9WCA (6/1994), contained in Appendix II with the department with a copy to the
employee; and
(3) Complete and file the “Memo of Payment”, form
9WCA (6/1994) contained in Appendix II to indicate any payment or change in benefits
paid to an employee, as follows:
a. Box "1" shall be completed if:
1. A payment of compensation is definitive
either as a first payment of compensation, or is an adjustment of provisional
payment;
2. A change in the compensation rate such as temporary
partial benefits;
3. A first payment resulting from a departmental
hearing decision or is a payment of adjusted total disability under RSA 281-A:
29; or
4. The average weekly wage is a result of
combined earnings;
b. Box "2" shall be completed when
first payment is made provisionally because of the absence of wage information;
c. Box "3" shall be completed when a
final payment of compensation is made due to the claimant returning to work or
because of benefit limitation under the law, RSA 281-A: 26, RSA 281-A:31, or a
"lump sum settlement" under RSA 281-A:37;
d. Box 2 shall not be completed if
e. Failure of a carrier to file an accurately
and fully completed “Memo of Payment”, form 9WCA (6/1994). contained in Appendix
II shall constitute non compliance shall subject the
carrier to the civil penalty as prescribed by RSA 281-A:42 and Lab 508.02(e).
f. Defect as to format or contents may render
the filing invalid and subject the carrier to the civil penalty in e. above as
explained in Lab 508.02.
(b) The carrier shall attach to the “Memo of
Payment”, form 9WCA (6/1994), contained in Appendix II the department's copy of
the “Wage Schedule”, form 76WCA (9/2014), contained in Appendix II when
definitive payment of compensation is made for the first time. No wage schedule shall be necessary if the
disability period is 14 days or less or payroll records are submitted that
clearly show the gross earnings of the employee per pay period for 52 weeks
prior to the date of injury if available.
(c) In
addition to the method set out in RSA 281-A: 15 the average weekly wage
shall be computed as follows:
(1) Wages shall include vacation pay, commission
and bonuses for the periods to which such payments apply, and all other considerations
required by RSA 281-A: 2, XV, RSA 281-A: 15, III and Lab 504.02 (k) and (l);
(2) In computing the average weekly wage for the
26 weeks prior to the injury, weeks with reduced earnings which occurred during
the week of injury or the week of hire shall be eliminated;
(3) If this method does not yield a figure
reflective of the claimant's true average weekly earnings, wages earned during
additional preceding consecutive weeks, up to a total of 52 weeks prior to the
injury, shall be used to compute an average;
(4) An employer shall submit a 52 week record of
gross earnings upon request of the employee or the labor department; and
(5) In the event that the employee's compensation
rate is determined by utilizing the after tax earnings rate as defined by RSA
281-A: 15, IV, the carrier shall complete and submit a "Supplemental Wage
Schedule", form 76WCA1 (4/2014), contained in Appendix II completed in its entirety,
with any and all documentation used to support the calculation of the after tax
earning indemnity rate as follows.
a. Documentation shall include, but not be
limited to, a copy of the applicable "Federal Income Tax Withholding"
table contained within Circular E of the Employer's Tax Guide, used to
determine the amount of the income tax withheld; and
b. The Federal Withholding Schedule and Federal
Insurance Contribution Act rate factor used to calculate these deductions shall
be based on the rates that are in effect at the time of the injury, contained
within Circular E of the Employers Tax Guide published by the Internal Revenue Service.
(d) If at the time of an injury an employee is
employed by 2 or more employers subject
to RSA 281-A:55 and RSA 281-A:55-a, the employee shall be eligible for wages
based on combined earnings pursuant to RSA 281-A:15, III, with eligibility
determined for combined earnings as follows:
(1) Carriers and self-insured employers shall
notify the claimant in writing of possible eligibility for additional weekly
disability benefits payable under the combined earnings provisions of the
statute. Notice shall be issued in all cases of injury pursuant to RSA 281-A:
15, III where the disability exceeds the waiting period;
(2) Notice, for the purposes of (1) above shall consist of the following statement:
"If you worked for more than one New Hampshire employer at the time you
were injured, you may be entitled to additional weekly disability benefits
under the combined earnings provision of the law. Upon your request, your employers are required
to complete a Wage Schedule, form 76WCA (9/2015) contained in Appendix II or
payroll records as described in Lab 506.02(b) and to submit it to the claims
representative handling your claim.
Contact your insurance carrier or the
(3) The combined earnings shall be calculated as
follows:
a. Allowable sources of wages shall be limited
to concurrent employment subject to the
b. Sources of income that shall not be considered
for concurrent employment include:
1. Unreported earnings;
2. Uninsured self-employment;
3. Federal; or
4. Other employment not subject to
c. The claimant's wages from all allowable sources
shall be added for each week; and
d. The average weekly wage shall be the result
of adding the weekly totals and dividing by the number of weeks.
(e)
In no case, including
calculation of average weekly wage on the basis of combined earnings, shall the
resulting compensation rate for any type of indemnity exceed the maximum set
forth in RSA 281-A:28, II.
(f)
Upon the injured worker’s return to work, the carrier shall notify the
worker in writing that if based on his or her injury, he or she is earning less
than his or her average weekly wage prior to the injury, he or she shall submit
or cause to be submitted a record of his or her earnings.
(g)
Carriers shall begin payment of temporary partial disability benefits
under RSA 281-A: 31 and Lab 506.02(a) (3) when:
(1) Upon return to work, a partially disabled
claimant's earnings due to the work injury are less than the average weekly
wages prior to the injury; and
(2) In the case of concurrent employment,
pursuant to RSA 281-A: 15, III, upon return to any employment(s), the partially
disabled claimant's earnings are less due to the work injury than the average
weekly wages prior to the injury.
(h) When an employee dies from an occupational
injury or disease the carrier shall pay compensation to dependents in accordance with the provision of RSA 281-A: 26 as
follows:
(1) Weekly payment
shall begin as soon as possible after death occurs, but no later than 21 days
after dependency is established;
(2) The carrier shall file with the department
the “Memo of Payment”, form 9WCA (6/1994), contained in Appendix II with an
appropriate wage schedule or payroll records, birth and marriage certificate if
applicable;
(3) Allocation adjustments shall be made as soon
as possible after receiving from the department the "Authorization for
Compensation for Death", form 14WCA (10/2001), contained in Appendix II giving the dependency allocation, but no
later than 7 days thereafter; and
(4) Funeral expenses, as provided by statute,
shall be paid as soon as possible after presentation of an invoice or
statement.
(i) Carriers shall notify an injured worker that
he or she is entitled to medical care, choice of doctor and mileage
reimbursement costs to medical appointments as follows:
(1) The injured workers’ choice of doctor may be
limited if the employer is within a managed care program;
(2) Carriers shall pay the cost of medical,
hospital, remedial and health support services, and devices and appliances
related to occupational injuries or diseases in accordance with RSA 281-A:23 as
soon as possible after presentation
of invoice or statement, but no later than 30 days thereafter: and
(3) Payable costs under RSA 281-A:23 and Lab
506.02 shall include the related reasonable and documented expenses of the
claimant for all necessary travel and meals and lodging, including the use of a
personal vehicle at the rate established for state employees.
(j) Carriers shall notify an injured worker that
they may be entitled to a
permanent impairment award for the loss of specified members or parts of the body or for loss of the use
thereof under RSA 281-A: 32.
(k) In order
to determine and pay a permanent impairment award, the carrier shall:
(1) Contact
the injured employee and the employee’s treating physician to advise him or her
of the need of a permanent impairment evaluation which shall:
a. Be based
on the 5th edition of the Guides to the Evaluation of Permanent
Impairment, published by the American Medical Association; available as
noted in appendix III;
b. Contain an affirmation from the submitting
physician that the findings for permanent bodily loss were determined from the Guides
to the Evaluation of Permanent Impairment, the 5th edition;
available as noted in appendix III; and
c. Contain medical evidence that the injured
worker has reached maximum medical improvement.
(2) Once an injured worker has achieved maximum
medical improvement, advise the injured worker that if the treating physician
does not perform permanent impairment evaluations, the physician may refer the
employee to a physician that does perform permanent impairment evaluations;
(3) Pay the cost of the initial permanent
impairment evaluation by the treating or referring physician;
(4) Complete and submit “Memo of Permanent Impairment
Award”, form 10WCA (10/1998), contained in Appendix II together with the medical reports that
support the impairment rating within 15 days of receipt of the physicians
report if no objection is filed;
(5) Pay the permanent impairment award within 5
days of receipt of the approved “Memo of Permanent Impairment Award”, form
10WCA (10/1998), contained in Appendix II.
(6) Pay the permanent impairment award based on
the physicians report that used the 5th Edition Guides to the
Evaluation of Permanent Impairment published by the American Medical
Association except where RSA 281-A:32 II is more favorable to the injured
worker;
(7) Pay
the award in a single payment based on the average weekly wage of the employee at the time of the
injury;
(l)
If upon receipt of the
permanent impairment award evaluation, the carrier, self-insurer, employer, or
third party administrator objects to the percentage of loss given by the
treating or referred physician, they shall:
(1) Notify the department of labor within 15 days
of receipt of the permanent impairment evaluation;
(2) Arrange for an independent medical
examination in accordance with RSA 281-A:32, XI and RSA 281-A:38 within 30 days
of their objection to the treating or referring physicians report; and
(3) Request a hearing on the matter.
(m)
If upon receipt of the permanent impairment award evaluation, an
objection is not filed with the department
of labor pursuant to 506.02(l) above, the carrier shall:
(1) Accept the rating filed by the treating or
referred physician;
(2) Complete and file the “Memo of Permanent
Impairment Award”, form 10WCA (10/1998), contained in Appendix II; and
(3) Pay the award in accordance with RSA 281-A:
32, XI.
(n)
If the carrier, self-insurer, employer, or third party administrator
fails to pay the permanent impairment
award and comply with (m) (1-3) above, the commissioner shall order payments of
the award in accordance with RSA 281-A: 43, II.
(o)
If the employer or carrier determines that the case is not compensable:
(1) The employer
or carrier shall complete and file a “Memo of Denial of Workers Compensation
Benefits”, form 9WCA-1(9/2015), contained in Appendix II
with
the department and send a copy to the claimant within 21 days of notification
of a claim or subsequent period of disability; and
(2) The denial shall:
a. State the reason for the denial;
b. Advise the employee of their right to request
a hearing within 18 months of the date of the denial if the employee disagrees
with the denial;
c. Provide the employee with the name, phone
number and email address of the adjuster; and
d. Provide a narrative explanation for the
denial.
(p)
If disability benefits have been paid within the first 21 days of the
receipt of notice of disability, and the employer, carrier, self-insured or
third party administrator determines that payment should not have been made, they may cease weekly payments of
compensation as follows:
(1) If payments have been made for no longer than
21 days, compensation may cease;
(2) A letter shall be written to the injured
worker setting forth the reason for denial of the claim and the cessation of
benefits;
(3) The injured employee shall be notified of his
or her right to a hearing if the denial is contested;
(4) The injured employee shall be advised that
the request for a hearing must be made within 18 months of the date of denial;
and
(5) Copies of all such correspondence shall be
sent to all parties including the department simultaneously.
(q) If disability benefits have been paid after
21 days following the carrier’s receipt of the notice of disability the carrier
shall request permission of the department
prior to terminating benefits as provided in RSA 281-A:48 and Lab 510.02,
subject to the following:
(1) Failure to obtain permission shall subject
the employer or carrier to fines under RSA 281-A: 42; and
(2) Failure to make timely payments shall subject
the employer or carrier to make payment of interest to the employee in
accordance with RSA 281-A:42,V and subject the employer, carrier, self-insured
or third party administrator to fines under RSA 281-A:42.
(r)
If payment of the bill
under RSA 281-A: 23 is denied, the carrier shall:
(1) Write the employee on carrier letterhead and
copy the provider and the labor department, providing explanation of the
denial, which shall:
a. Be issued within 30 days of the receipt of
the bill or invoice;
b. Be in narrative form;
c. Advise the employee of the reason for the
denial;
d. Advise the employee of the identity of the entity
issuing the denial; and
e. Advise the employee of their right to request
a hearing within 18 months of the date of denial if the employee disagrees with
the denial; and
(2) Failure to follow procedures in Lab 506.02
(r) (1) shall subject the carrier to fines under RSA 281-A: 23, V (e), as explained in Lab 508.02.
(s)
When a dispute arises as to the reasonable value of medical hospital and
remedial services, the employer or its insurance carrier shall pay, in the
first instance, what they feel reasonable within 30 days from presentation of
invoice or statement. They shall state in writing to the party
providing such services, copy to the labor department, reasons for contesting
the unpaid balance. The parties shall
make an effort to resolve any dispute.
If the parties cannot resolve the differences concerning invoices with
dates of service of 9/4/15 and after, a hearing may be requested pursuant to
RSA 281-A: 24 at which the provider shall have the burden of proof.
(t)
Payment of any net benefit made directly to the claimant shall be made
promptly in a form that allows the claimant easy accessibility to it.
(u)
In order to be in substantial compliance with RSA 281-A: 42 for making
payment of compensation, and in substantial compliance with Lab 501.02 for
paying benefits in amounts, manner and when due, the carrier or employer shall
establish a payment system that meets the following criteria:
(1) Payment of compensation for disability shall
be made:
a. For partial disability where a statement of
earnings is needed to compute the benefits, within 5 days from the date of
receipt of such documentation; and
b. For all other benefits, weekly on a day
designated at the onset of payment of the claim. If the designated day falls on a holiday, payment
shall be made the day prior.
(2) The normal standard payment procedure shall
be by delivery of a paper check, made payable to the claimant, and delivered to
the home address of the claimant.
Alternatively, the employer may make a direct deposit to a claimant’s
financial account, if the claimant so authorizes. Also, at the claimant’s
option, the parties may agree in writing upon an
alternate payment procedure, called here a “paycard”,
so long as it meets the criteria of this paragraph;
(3) The paycard shall
provide to the claimant at least one free means to withdraw up to and including
the full amount of the claimant’s account during each benefit payment period at
a financial institution or other location within 20 miles from the claimant’s home
address;
(4) The payment of the benefit to the claimant
shall be verifiable by the claimant, either by delivery of a paper deposit
receipt, or by the ability to view the transaction through a secure internet
connection;
(5) If the paycard
offers options other than cash withdrawals, there shall be written disclosure
in plain language of all the claimant’s options. The written disclosure shall state the terms
and conditions of the paycard, including, but not
limited to, the requirements set forth in this section and a complete itemized
list of all known fees that may be deducted from the paycard
account by the employer or the card issuer.
The disclosure shall also state whether third parties may assess
transaction fees in addition to the fee assessed by the paycard
issuer or issuers;
(6) In no event shall the employer provide
payment of benefits to a paycard that has an
expiration date, unless the employer agrees to provide a replacement paycard before the expiration date at no cost to the employee;
(7) The employer shall provide written notice of
any change to any of the terms and conditions of the paycard account, including but not limited to an itemized
list of all fees that may have changed; and
(8) The employer shall provide the claimant the
option to discontinue receipt of benefits by a paycard
account at any time, without penalty to the claimant.
Source. #2264, eff 1-6-83; ss by #2935, eff 12-27-84;
amd by #4854, eff 6-29-90; amd
by #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. #9019, eff 11-1-07; amd
by #10038, eff 12-1-11; ss by #11067, eff 4-1-16
Lab 506.03 Payment and Reimbursement of Adjusted
Total Disability Benefits.
(a)
An injured employee shall
be entitled to an increase in his or her total disability benefits if he or she qualifies for
such an increase pursuant to RSA
281-A: 29 and this section.
(b) Self-insured employers and
insurance carriers shall acquaint themselves with the provisions of RSA 281-A:
29 to review all claims as to eligibility for benefits as follows:
(1) The carrier shall inform the employee of this
benefit and advise the employee to apply for Social Security disability
benefits if applicable prior to the 3rd anniversary of the injury;
(2) Any
injured worker receiving total disability benefits after the third anniversary
of the injury shall upon request produce a copy of his or her denial of Social
Security disability benefits;
(3) Notice of eligibility for benefits shall be
given as soon as possible for review and approval by the department by
completing and filing a “Memo of Payment”, form 9WCA (6/1994) contained in
Appendix II with the appropriate box completed;
(4) Self-insured employers and insurance carriers
shall make adjusted weekly compensation payments and review the claim annually
thereafter on July 1; and
(5) If an employee becomes eligible for Social
Security disability benefits at any time after receiving an adjustment in his
compensation rate under this part, the employee’s compensation rate will revert
back to the original compensation rate established at the onset of the claim.
(c) Self-insured employers and
insurance carriers shall apply annually to be received in the department before September 1 by
completing and filing “Application for Reimbursement of Paid Adjusted Total
Disability Benefits”, form 9WCA-2 (9/2015), contained in Appendix II for
reimbursement for claims prior to July 1, 1975, from the fund established under
RSA 281-A: 30, of the total adjusted disability payments made by them during
the preceding calendar year. A self-insured
employer or insurance carrier who fails to make timely annual application for such
reimbursement shall forfeit the right to reimbursement for payment made during
the preceding calendar year.
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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 506.04 Reimbursement from the Special Fund for
Second Injuries.
(a)
Self-insured employers and insurance carriers shall give notice to the
department of possible claim against the second injury fund in writing not
later than 100 weeks after the date of injury. The employer or carrier may complete and file
“Application for the Use of the Second Injury Fund”, form WCSIF-1 (9/2015),
contained in Appendix II.
(b)
Self-insured employers and insurance carriers who desire to invoke the
reimbursement provisions of RSA 281-A: 54 shall file proof of eligibility for
the use of the second injury fund established by RSA 281-A:55.
(c)
Proof of eligibility under (b) shall be submitted not later than
September 1 for reimbursement of the prior
year's benefits.
(d)
Proof of eligibility
shall include:
(1) Either notarized true copies of the written record
of knowledge by the employer that the employee
had a permanent impairment, prior to the work related injury
which the employer is using as a basis for reimbursement by the fund along with
a completed “Second Injury Fund Sworn Statement of Employer”, form WCSIF-1a
(3/2010), contained in Appendix II or an affidavit stating that the employer
had knowledge of the employee's permanent physical or mental impairment which
must be executed by the employer at the time of hire or retention but before
the second injury may be used as written record;
(2) Medical evidence of the preexisting permanent
impairment;
(3) Medical evidence of a subsequent disability
as a result of the second injury or disability; and
(4) A medical evaluation which indicates that the
disability is greater due to the combined effects of the preexisting impairment
and the work related injury than would have been caused by subsequent injury
alone. The employer or carrier may use
“Second Injury Fund Certification by Physician”, form WCSIF-1b (12/1996),
contained in Appendix II to submit this information.
(e)
Self-insured employers and insurance carriers shall request
reimbursement not later than September 1 for all reimbursable benefits paid in
the preceding calendar year. Supporting documentation shall include
verification of the first $10,000 paid and all other payments made on the case
for the preceding calendar year shall be submitted with “Request for
Reimbursement from the Second Injury Fund”, form WCSIF 2 (5/2013), and “Schedule
of Reimbursable Payments”, form WCSIF-2a (5/2013), contained in Appendix II. A self-insured employer or insurance carrier
who fails to make timely annual application for such reimbursement shall
forfeit the right to reimbursement for payment made during the preceding
calendar year.
(f)
Self-insured employers and insurance carriers who desire to invoke the
reimbursement provisions of RSA 281-A:15, III, shall request reimbursement from
the special fund for the additional weekly compensation or permanent impairment
award resulting from the increase in average weekly wages due to the employee's
concurrent employment. The reimbursement
request shall be completed and filed on “Application for Reimbursement of Paid
Combined Earnings Differential” form 9WCA 3 (9/2015), contained in Appendix II,
by September 1 for benefits paid in the preceding calendar year. A self-insured
employer or insurance carrier who fails to make timely annual application for
such reimbursement shall forfeit the right to reimbursement for payment made
during the preceding calendar year.
Source. #2264, eff 1-6-83; amd
by #2935, eff 12-27-84; amd by #4854, eff 6-29-90; amd by #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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 506.05 Adjustment of Claims.
(a)
For the purposes of RSA 281-A:63, I, any licensed New Hampshire
insurance adjuster or adjusting company handling workers' compensation claims
within the state of New Hampshire shall:
(1) Maintain a business office in the state of
(2) Be open during the hours of 9 a.m. and 4
p.m.; and provide a toll-free number and email address for injured employees;
and
(3) Have the capacity to facilitate the claims
handling process.
(b)
The utilization of an independent claims adjuster or claims adjusting
company on behalf of an insurance carrier
or self-insured that maintains facilities within 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; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
PART Lab 507 RESPONSIBILITIES OF EMPLOYEES
Lab 507.01 Changes in
Medical or Employment Status.
(a)
An employee receiving workers' compensation benefits shall report to the
carrier, self-insured employer, or third
party administrator:
(1) Any changes in his or her medical condition;
and
(2) Any changes in his or her employment status
or earnings or both.
(b) An employee eligible for temporary partial benefits under RSA 281-A:
31 shall:
(1) Provide or cause to be provided pay stubs or
records of their earnings to the carrier on a weekly basis; and
(2) Promptly notify the carrier if the temporary
partial employment ceases so a determination of benefits may be calculated.
(c) Pursuant to RSA 281-A:53-a, every carrier,
self-insurer, employer or third
party administrator shall notify any employee receiving workers' compensation
benefits of the duty to report changes in earnings or employment status by
completing and filing “Employee's Statement of Employment Status”, form 53 WC
(12/2000), contained in Appendix II.
(d)
The notice required by
(c) above shall be sent by first class mail and may be included with the
employee's regular indemnity payment.
(e)
The notice required by
(c) above shall require a report of any change in employment status or earnings
that has occurred only in the 3 month period prior to the date listed on the notice.
(f)
The carrier,
self-insured, or third party administrator shall provide a self-addressed
stamped envelope along with a completed “Employee Statement of Employment
Status”, form 53 WC (12/2000), contained in Appendix II.
(g)
The notice required by (c)
above shall be copied to the claimant’s counsel of record if applicable.
(h)
Form “Employee Statement of Employment Status”, form 53 WC (12/2000),
shall indicate that:
(1) Failure by the employee to report any change
in employment status or earnings might subject the employee to civil or
criminal penalties; and
(2) Failure to complete and return the form
within 30 days of the request might result in suspension of the employee's
compensation benefits.
(i) The carrier,
self-insured employer, or third party administrator shall not request the
employee to fill out and return “Employee Statement of Employment Status” form
53 WC (12/2000) contained in Appendix II more than once every 3 months.
(j)
If an employee fails to
complete and return “Employee Statement of Employment Status”, Form 53 WC
(12/2000), contained in Appendix II as requested, the carrier, self-insured
employer, or third party administrator shall:
(1) Send a notice to the commissioner, employee
and claimant’s counsel of record if applicable
of its intent to suspend benefits by completing and filing “Notice of Intention
to Suspend Payment of Workers’ Compensation Benefits” form 53-A WC (12/2000),
contained in Appendix II;
(2) Notify the commissioner in writing if the
completed “Employee Statement of Employment Status” form 53 WC (12/2000)
contained in Appendix II has not been received within 15 days of the notice of
intent to suspend benefits and request permission to suspend benefits until
such time as that form is filed; and
(3) Send a copy of the request for permission to
suspend benefits to the injured employee and claimant’s counsel of record if
applicable.
(k)
Upon receipt of a request to suspend benefits, the commissioner shall
within 10 working days issue an order suspending
the employee's benefits until “Employee Statement of Employment Status”, form
53 WC (12/2000), contained in Appendix II is filed.
(l)
Upon receipt of “Employee
Statement of Employment Status”, form 53 WC (12/2000), contained in Appendix II
the carrier, self-insured, third party administrator, or employer shall within
5 working days resume making payment of benefits and shall include in the first
check all the benefits unpaid during the period of suspension.
Source. #2264, eff 1-6-83; ss by #2935, eff 12-27-84;
amd by #4854, eff 6-29-90; amd
by #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 513.01); ss
by#7585, eff 10-30-01; ss by #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 507.02 Incarceration. An employee who becomes incarcerated shall
notify the insurance carrier of the date, place of incarceration, and date of
release.
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. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 507.03 Combined Earnings. In the event of a claim pursuant to RSA
281-A:15, III, the employee shall request that the concurrent employer(s)
complete a wage schedule and make it available to the carrier handling the
claim.
Source. #6806, eff 7-18-98 (formerly Lab 514.02); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 507.04 Attendance at Independent Medical
Examinations.
(a) Pursuant to RSA 281-A: 39, the employee shall submit
to an independent medical examination scheduled by the employer or his
insurance carrier at a reasonable time and place.
(b) Pursuant to RSA 281-A: 38, II, the employee
may have a witness present during such examination. The witness may observe and take notes, but
shall not interfere in the examination in any way. To authorize such a witness, the employee
shall complete and sign an “Authorization to Permit Witness at Medical Examination”,
form 38 WCA (9/2015), contained in Appendix II.
(c)
This authorization shall be the only authorization required for a witness
to be present.
(d) Failure to submit to an
independent examination shall:
(1) Result in the suspension of benefits until
such time as the examination has taken place; and
(2) Suspend
the employee’s right to a hearing if
medical bills are in dispute and the employee refuses or obstructs the
examination.
Source. #6806, eff 7-18-98 (formerly Lab 514.03); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; amd
by #10038, eff 12-1-11; ss by #11067, eff 4-1-16
Lab 507.05 Request for Pre Approval of
(a)
When pre approval of medical, hospital or remedial care in accordance
with RSA 281-A: 23 is required, the injured employee shall obtain a written
statement from the medical provider containing the following:
(1) The nature of the proposed care;
(2) How the proposed care is required to address
problems that are the result of the work-related injury;
(3) The anticipated benefit of the care; and
(4) An estimate of the cost for the care.
(b)
A copy of the statement
from the medical provider shall be sent to both the insurance carrier and the
department of labor. The carrier shall
have 20 days to evaluate the request and decide if it will approve the
requested care.
(c)
If the carrier denies the
requested care or does not respond within the stated time frame, the injured
worker shall contact the department, in writing, to request a hearing.
Source. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
PART
Lab 508 RESPONSIBILITIES OF TREATING
PRACTITIONERS
REVISION
NOTE:
Document #5235, effective 9-27-91,
made extensive changes to the wording, format, structure, and numbering of
rules in Part Lab 508. Document #5235
supersedes all prior filings for the sections in this part. The prior filings for former Part Lab 508
include the following documents:
#2264,
eff 1-6-83
#2935,
eff 12-27-84; EXPIRED 12-27-90
#5041,
eff 1-9-91
Since rules are effective for 6 years,
most sections of Lab 508 expired for approximately 9 months between Documents
#2935 and #5235
Lab 508.01 Medical Reports.
(a)
A “Workers' Compensation Initial Medical Report,”, form 75WCA-1
(6/1994), contained in Appendix II, shall be completed in full and filed with the carrier within 10 days
of the first examination. The health
care provider shall keep a supply of the initial medical report form in their
offices for completion. If an injured employee is released to return to work,
the medical report form shall indicate whether the employee can resume his or her
former duties or perform light or other work.
(b)
There shall be no reimbursement for services rendered upon the failure
of the practitioner to provide the carrier with the “Workers Compensation
Initial Medical Report”, 75WCA-1(6/1994), contained in Appendix II within 10
days of the first treatment. Furthermore, the failure of practitioner to
provide the carrier with medical information necessary in the prompt processing
of a claim, may result in the nonpayment of the medical bill under RSA
281-A:23V(c).
(c)
Medical reports submitted
in conjunction with assessment of permanent bodily loss under RSA 281-A:32
shall contain affirmation that the findings were determined from Guide to
the Evaluation of Permanent Impairment, 5th edition, published by the American Medical
Association available as noted in appendix III.
Source. (See Revision Note at part heading for Lab
508) #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 507.01); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07’
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 508.02 Application
of Civil Penalties.
(a)
The commissioner shall
assess a civil penalty between $0.00 and $2,500.00 against any health care provider
who without sufficient cause, as determined by the commissioner, bills an
injured employee or his or her employer for services covered by insurers or
self-insurers under the statute, or who fails to provide reports required under
the statute.
(b)
Insufficient cause shall
be determined if the health care provider:
(1) Bills an employee and is aware that the
matter is an accepted workers’ compensation claim or that the matter is in
litigation; or
(2) Bills the employee for the amount that the carrier,
self-insured employer or third party administrator did not pay as a result of
RSA 281-A: 24 Reasonable Value of Services.
(c)
The commissioner or his or her designee shall request from the health
care provider the reason for the billing to the employee or employer or for the
lack of report forwarded to the carrier.
(d)
If the reason for the incorrect billing is in violation of RSA 281-A,
the commissioner shall assess a penalty with the severity of the penalty
increasing with each violation by that health care provider. The initial penalty assessment shall be
$500.00.
(e)
In determining the dollar amount of a civil penalty for any violation
within these rules, the commissioner shall determine the penalty with the goal
of preventing future misconduct, considering the following factors:
(1) The severity of the violation;
(2) The frequency of the violation;
(3) Whether the violator is a repeat offender;
and
(4) Other similar factors that the commissioner
finds demonstrate that the violation warrants a higher civil penalty.
Source. (See Revision Note at part heading for Lab
508) #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 507.02); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
PART
Lab 509 VOCATIONAL REHABILITATION
Lab 509.01 Purpose. Vocational rehabilitation of occupationally
disabled persons under RSA 281-A: 25 truly represents not only the most humane approach, but also the most
economical. Accordingly, the goal of
vocational rehabilitation is to 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.
Source. (See Revision Note at part heading for Lab
508) #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 508.01); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New.
#9019, eff 11-1-07; ss by #11067, eff
4-1-16
Lab 509.02 Eligibility for Vocational Rehabilitation
Services.
(a)
Employees who are disabled from performing the work for which they have
training or experience shall be referred
by the carrier or self-insured employer or by the department after consultation
with the carrier or self-insured employer, to an appropriate vocational
rehabilitation provider.
(b)
In determining a suitable
job goal, consideration shall be given, but not limited, to the employee's
prior training and work experience, education, average weekly wage, age, and
medical factors. This shall be evaluated by the vocational rehabilitation
provider on a case by case basis using the criteria listed.
(c)
In determining the level of services necessary for the employee to
achieve a suitable job goal, consideration
shall be given to the following hierarchy of services:
(1) Return to same job, same employer;
(2) Return to same job modified, same employer;
(3) Return to different job, same employer;
(4) Return to same job, different employer;
(5) Return to same job modified, different
employer;
(6) Return to different job, different employer;
(7) On the job training;
(8) New skill training or retraining;
(9) Other educational or academic program; and
(10) Other.
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 (formerly Lab 508.02); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 509.03 Reporting
Extended Disabilities.
(a)
Carriers and self-insured employers shall complete and file with the
department a Report of Extended Disability, form 74WCA (7/1989) , contained in
Appendix II, with copies of the complete medical file and any vocational
rehabilitation reports which are available
at that time. This report shall be filed
as soon as the carrier knows that the employee's disability will extend or has
extended for 6 months or more.
The department shall review the report and accompanying material.
(b)
If the review indicates a need for services, the department shall direct
the carrier or self-insured employer to refer
the employee to a vocational rehabilitation provider to evaluate the
practicability of and need for vocational rehabilitation services and to
develop recommendations for the kind of service or training necessary to return
the employee to suitable and gainful employment. Such evaluation shall include, but not be
limited to, information regarding the employee's prior training, work
experience, education, average weekly wage, age, and medical factors.
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 (formerly Lab 508.03); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 509.04 Reporting Provision of Vocational
Rehabilitation Services.
(a)
Within 7 days of receiving a referral from a carrier or self-insured
employer, the vocational rehabilitation
provider shall report it to the department. This information shall be provided on the
vocational rehabilitation provider's letterhead and shall reflect referrals for
vocational rehabilitation services, not referrals exclusively for medical
management services.
(b)
A copy of the “Employer's First Report of Injury”, form 8WC (7/2019),
contained in Appendix II shall be attached to the referral.
(c)
The vocational rehabilitation provider shall provide the following
information in the following order:
(1) Date referral received;
(2) Date of employee's injury;
(3) Employee's name at the time of the injury;
(4) Employee's mailing address, including the
street, RFD or box number, city, state, and zip code;
(5) Employer's name;
(6) Carrier or self-insured employer's name;
(7) Carrier or self-insured employer's mailing
address;
(8) Rehabilitation provider's name;
(9) Rehabilitation company name;
(10) Employee's attorney's name, if represented by
an attorney; and
(11) Employee's attorney's mailing address.
(d)
In cases that have been referred
pursuant to Lab 509.04(a), an individual written rehabilitation plan (IWRP)
shall be filed with the department within 120 days of the vocational
rehabilitation referral.
(e) (IWRP) amendments shall be written
and consecutively numbered as long as vocational rehabilitation services
continue to be provided.
(f) (IWRP) and amendments shall be on the
vocational rehabilitation provider's letterhead.
(g)
The vocational rehabilitation provider shall provide the following
information in the order below on the (IWRP) and amendments:
(1) Employee's name;
(2) Employer's name;
(3) Employee's date of injury;
(4) Employee's date of birth;
(5) Employee's average weekly wage;
(6) Employee's disability;
(7) Employee's pre-injury occupation;
(8) Employee's education level;
(9) Carrier or self-insured employer's name;
(10) Date of referral;
(11) Medical justification for the vocational goals
with the attached medical report;
(12) Level of service as per Lab 509.02(c);
(13) Vocational goal with rationale and estimated
weekly earnings;
(14) Detailed plan of vocational services
including the nature and extent of services, and the projected dates of
service;
(15) Responsibilities of participants; and
(16) Signature of
the employee, rehabilitation provider, employer or representative, and
department representative with dates.
(h)
The (IWRP) and amendments shall reflect all the vocational
rehabilitation services anticipated.
(i) If disputes arise over the (IWRP) or its
amendments, the vocational rehabilitation coordinator or designee shall contact the party in dispute,
discuss the problem areas, and identify resolutions.
(j)
The vocational
rehabilitation coordinator or designee shall review the (IWRP) and its
amendments within 14 days of receipt by the department. If the (IWRP) or its
amendments are disallowed, per 281-A: 25, VII, it shall be returned to the
vocational rehabilitation provider for revisions.
(k)
If a dispute arises regarding the (IWRP) or its amendments which is not resolved
through the administrative process outlined above, a hearing shall be scheduled
pursuant to RSA 281-A: 25, VII.
(l)
At case closure, the
vocational rehabilitation provider shall file with the department a closure
report which provides the following
information:
(1) Employee's name;
(2) Carrier or self-insured employer's name;
(3) Employee's date of injury;
(4) Date of referral;
(5) Date of closure;
(6) Reason for closure; and
(7) Name of vocational rehabilitation provider.
(m) The
case closure shall be on the vocational rehabilitation provider's letterhead.
Source.
#6806, eff 7-18-98 (formerly Lab 508.04); ss by #8682, INTERIM, eff 7-15-06,
EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 509.05 Placement Evaluation. All job placements shall be evaluated by the
vocational rehabilitation provider 60 days after placement, and a status report
of that evaluation shall be filed with the department immediately, with a copy
sent to the carrier or self-insured employer.
Source.
#6806, eff 7-18-98 (formerly Lab 508.05); ss by #8682, INTERIM, eff 7-15-06,
EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 509.06 Vocational Rehabilitation Training
Agreement.
(a)
A vocational rehabilitation training agreement shall be developed and
submitted to the department for prior approval on a case by case basis using
the criteria listed in Lab 509.02(b).
This shall be done for services which involve any expenditure of monies
beyond those for the services of the vocational rehabilitation provider, or for services listed in Lab 509.02(c)
(7) - (10). The training agreement with
the original signatures of all parties shall be submitted to the department for
review and approval. Each case shall be evaluated on an individual basis taking
into consideration, but not limited to, the medical condition of the employee,
the choice of vocational goal and rationale, the nature and extent of the
training, and the employability of the employee at the completion.
(b)
The vocational rehabilitation training agreement shall be on the
vocational rehabilitation provider's letterhead.
(c)
The vocational rehabilitation provider shall include the following
information in the following order on the
vocational rehabilitation training agreement:
(1) Employee's name;
(2) Employer's name at the time of the injury;
(3) Carrier's name;
(4) Employee's date of injury;
(5) Type of injury and nature and extent of
disability;
(6) Vocational goal and rationale for selecting
this goal;
(7) Responsibilities of carrier including dates
and costs;
(8) Responsibilities of employee including dates;
(9) Responsibilities of rehabilitation provider
including dates;
(10) Provisions for payment and/or cessation of
indemnity benefits during and at conclusion of training agreement;
(11) Signatures of employee, rehabilitation
provider, carrier representative;
(12) Date the signed training agreement is
submitted to the department for review;
(13) Date the signed training agreement is
approved by the department;
(14) Blank line labeled "Labor Department
Representative"; and
(15) Blank line labeled "Date Approved by
Labor Department".
(d)
Upon submission, the original copy of the signed vocational rehabilitation
training agreement shall be reviewed by the labor department vocational
rehabilitation coordinator or designee.
(e) To obtain approval of a
training agreement, the training
agreement shall:
(1) Document that the vocational goal is within
the injured employee’s medical restrictions;
(2) Take into consideration the injured
employee’s transferable skills;
(3) Provide for a vocation that approximates the
injured employee’s average weekly wage
prior to the injury;
(4) Demonstrate the availability of employment in
the injured employee’s labor market; and
(5) Take into consideration other employment
issues.
(f) If approved, the training
agreement shall be signed by the
vocational rehabilitation coordinator or designee and a photocopy shall be returned to the rehabilitation
provider for distribution to the other parties.
(g) If not approved, the vocational rehabilitation coordinator or
designee shall contact the rehabilitation
provider to discuss problem areas and identify resolutions. The coordinator may require a meeting with the
parties to discuss the training agreement further.
(h) If a dispute arises
regarding a vocational rehabilitation training agreement which is not resolved
through the administrative process outlined above, a formal hearing shall be
scheduled pursuant to RSA 281-A:25, I, III, and IV.
Source.
#6806, eff 7-18-98 (formerly Lab 508.06); ss by #8682, INTERIM, eff 7-15-06,
EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 509.07 Hearings under RSA 281-A:25, I, III, IV,
V, VII.
(a)
The employee, carrier, or vocational rehabilitation provider may request
in writing a hearing to decide any of the following issues:
(1) Disputes regarding the employee's eligibility
to receive vocational rehabilitation services;
(2) Disputes regarding the level of services to
which the employee is entitled;
(3) Disputes regarding the provisions of a
drafted or approved vocational rehabilitation training agreement which were not
resolved through the administrative process; or
(4) Disputes regarding a carrier's request to
suspend indemnity benefits on the basis that the employee refused to cooperate
with or accept vocational rehabilitation services as in RSA 281-A:25, V.
(b)
Such hearing shall be scheduled as provided in Lab 200.
Source.
#6806, eff 7-18-98 (formerly Lab 508.07); ss by #8682, INTERIM, eff 7-15-06,
EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
PART
Lab 510 REVIEW OF ELIGIBILITY FOR
COMPENSATION
Lab 510.01 Basis of Petition. A claimant, carrier, or employer may petition
the commissioner under RSA 281-A: 48 to review eligibility for compensation by
reason of a change in condition, mistake as to the nature or extent of the
injury or disability, fraud, undue influence, or coercion.
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 (formerly Lab 509.01); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 510.02 Rules Governing Review.
(a) No carrier shall reduce or terminate benefit
payments for reasons other than provided by statute, Lab 506.02 (p), or Lab
510.04 without obtaining prior approval of the commissioner pursuant to (b)
through (d) below.
(b)
A carrier seeking approval to reduce or terminate benefit payments shall
take the following action:
(1) File a written petition with the commissioner
setting out in detail the reasons why it believes it should be allowed to take
such action;
(2) Provide the department with the claimant’s
correct address and phone number;
(3) Attach to the petition copies of all medical
reports and other documents it is relying upon to support the granting of its
petition; and
(4) Simultaneously send a copy of the petition
and supporting documents to the opposing party, together with a notice that if
the party objects to the petition, a written objection together with all
documentation supporting the objection is required to be sent to the
commissioner and the moving party within 10 days.
(c) Upon receipt of the petition and any
objection to the petition, the commissioner shall:
(1) Review the medical reports issued since the date
of the last decision by the commissioner or commissioner's representative to
determine if there has been a revision of any full-time, light or full duty
work release applicable to the employee;
(2) Review the limitation and restrictions placed
upon the employee by the treating physician;
(3) Review the documentation indicating the
availability of work for the employee;
(4) Review the employee's involvement in an
approved vocational rehabilitation program; and
(5) Review such other facts noted by the parties
in their filings that might restrict the employee from returning to work.
(d)
Based upon the evidence presented and the review pursuant to (c) above,
the commissioner shall grant or deny the petition to reduce or terminate the
employee's benefits.
(e) If either party disagrees with the
commissioner’s determination he or she may request a hearing in accordance with
RSA 281-A: 43.
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 (formerly Lab 509.02); ss
by #7585, eff 10-30-01, EXPIRED: 10-30-09; ss by #11067, eff 4-1-16
Lab 510.03 Diminished
Earning Capacity. Pursuant to RSA
281-A: 48, in the absence of work opportunity and on the basis of medical and
other evidence, the earning capacity of a partially disabled person shall be
60% of the difference between 80% of the statutory minimum wage under RSA 279
in effect on the date of injury using the average number of hours per week the
claimant worked and the claimant's established average weekly wage at the time
of injury, accordingly.
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 (formerly Lab 509.03); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 510.04 Forfeiture of Benefits Upon Incarceration.
(a) Pursuant to RSA 281-A:3-a, a claimant who has
become incarcerated pursuant to a conviction shall forfeit any right to
workers' compensation indemnity benefits 30 days after incarceration for the
remaining period of incarceration.
(b) A carrier or employer who becomes aware of the
incarceration of a claimant for over 30 days shall cease payment of workers'
compensation indemnity benefits to the claimant for the remaining period of
incarceration.
(c)
The carrier or employer shall notify the commissioner of the cessation
of benefits in writing by issuing a “Memorandum of Payment”, form 9 WCA
(6/1994), contained in Appendix II and shall include with the memorandum a copy
of the document on which the carrier is relying for proof of incarceration.
Source. #7585, eff 10-30-01, EXPIRED: 10-30-09; ss by
#11067, eff 4-1-16
PART
Lab 511 CASES FOR DEPARTMENTAL REVIEW
Lab 511.01 Lump Sum Settlement.
(a)
Lump sum settlements of past, present and future weekly indemnity
benefits under RSA 281-A: 26, 28, 28-a, 31, 31-a, which may also include past,
present or future scheduled permanent impairment awards to which the claimant
may be entitled under RSA 281-A: 32, shall be permitted by RSA 281-A: 37, in
cases where there have been at least 12 months of continuous disability or the
best interest of all concerned will be served.
(b)
In order to determine if the best interest of all concerned will be
served, a hearing in accordance with RSA 281-A: 43 shall be scheduled. The hearing officer shall determine if the settlement
is approved based on the testimony of the parties.
(c)
Benefits under RSA 281-A: 25, vocational rehabilitation, may also be
settled by lump sum under RSA 281-A: 37. The portion of the lump sum settlement shall
be held in escrow by the carrier and shall be paid to the provider of the
vocational rehabilitation services for services incurred by the claimant. The eligible period for vocational
rehabilitation benefits following a lump sum settlement shall commence within 6
months after the approval, unless extended by the commissioner.
(d)
Department approval shall be obtained for a lump sum settlement pursuant
to RSA 281-A: 37.
(e)
All medical information shall be filed with the department before lump
sum approval will be given.
(f)
A hearing on a lump sum request shall be held, at which time the
department of labor shall inquire into the settlement to be certain that it is a fair resolution of disputes
between the parties. The claimant shall
be present, in person or telephonically.
(g) A written request for a hearing to approve a
lump sum settlement shall include:
(1) Full identification of the parties and their
representatives;
(2) The scope and total amount of agreement
foreclosing future claim, specifying which provisions of the statute are being
settled; and
(3) A summary of the reason for settlement
consistent with RSA 281-A: 37. The
reasons shall be specific to the individual claimant.
(h)
Upon approval of a “Request for Lump Sum Settlement”, form 15WCA (10/1999),
contained in Appendix II shall be completed, signed and distributed to all parties of interest.
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 (formerly Lab 510.03); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 511.02 Attorney's Fees. Attorney's fees for legal services rendered to
the claimant at the department level shall be limited to 20% of the actual
recovery excluding medical benefits.
Source. #6806, eff 7-18-98 (formerly Lab 510.04); ss
by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
Lab 511.03 Third Party Liability.
(a)
Upon recovering damages
from a third person under RSA 281-A: 13, employees, employers or carriers shall
prepare in full and file for the commissioner's approval “Settlement of Third
Party Claim Computation”, form WC-3PR-1 (6/2015), contained in Appendix II or a
copy of the court filing, if any, resolving the third party claim and lien.
(b)
The computation shall show the employer/carrier's pro rata share of
attorney fees, expenses and costs of the action, the employee or claimant’s
share of attorney fees, expenses and costs of the action, the employer or
carrier's net payment in satisfaction of lien, and the net amount of the
settlement due the employee or claimant.
(c)
In lieu of “Settlement of Third Party Claim Computation”, form
WC-3PR-1(6/2015), contained in Appendix II if the parties have filed documents
with a court or arbitrator settling the claim and lien, copies of those
documents shall be submitted to the department.
(d)
The commissioner shall review the completed form and submitted document
to assure that the figures are correct and that the lien or compromised lien of the employer or
carrier is satisfied. If so, the
commissioner shall approve the resolution of the claim.
Source. #6806, eff 7-18-98 (formerly Lab 511); ss by
#8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07
New. #9019, eff 11-1-07; ss by #11067, eff 4-1-16
PART
Lab 512 CIVIL PENALTIES FOR
NON-COMPLIANCE
Lab 512.01 Application.
(a)
The commissioner may assess
civil penalties of up to $2,500.00 against employers and insurance carriers who
fail to pay or deny compensation promptly, fail to give the commissioner timely
notice of such action, or fail to provide vital information in a timely manner
as directed by RSA 281-A:42, RSA 281-A:53, and RSA 273:11-a.
(b)
In determining the severity of the civil penalty, the commissioner shall
document violations of the carrier or employer
and the fine shall be based on the number of violations of the statute and rules
prior to the assessment.
(c)
If the carrier or employer disputes the assessment, he or she may
request a hearing before the commissioner to discuss the matter to consider
prior history of compliance with the statute and with the rules and orders of
the department.
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. #9019, eff 11-1-07; ss by 10038, eff 12-1-11;
ss by #11067, eff 4-1-16
PART
Lab 513 - Reserved
Source. #4854, eff 6-29-90; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED: 3-16-98
PART
Lab 514 - Reserved
Source. #4854, eff 6-29-90; ss by #5235, eff 9-27-91,
EXPIRED: 9-27-97
New. #6631, INTERIM, eff 11-16-97, EXPIRED:
3-16-98
PART Lab 515 - Reserved
Lab 515.01 - Reserved
Source. #4854, eff 6-29-90; ss and moved by #5235, eff
9-27-91 (See Lab 515.06)
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. #9019, eff 11-1-07; rpld
by #11067, eff 4-1-16
Lab 515.02 - 515.10 & Lab 515.12 -
Lab 515.15 - Reserved
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; ss by #8682, INTERIM, eff
7-15-06, EXPIRED: 1-11-07
New.
#9019, eff 11-1-07; rpld
by #11067, eff 4-1-16
Lab 515.11 - Reserved
Source. #5235, eff 9-27-91; ss by #5893, eff 9-2-94;
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. #9019, eff 11-1-07; rpld
by #11067, eff 4-1-16
Lab 515.16 - Reserved
Source. #5235, eff 9-27-91; amd
by #5909, eff 10-13-94; 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. #9019, eff 11-1-07; rpld
by #11067, eff 4-1-16
Lab 515.17 -
Reserved
Source. #7585, eff 10-30-01, EXPIRED: 10-30-09; rpld by #11067, eff 4-1-16
Lab 515.18 - Reserved
Source. #7585, eff 10-30-01, EXPIRED: 10-30-09; rpld by #11067, eff 4-1-16
PART
Lab 516 CERTIFICATION OF VOCATIONAL
REHABILITATION PROVIDERS
Lab 516.01 Purpose. The purpose of these rules is to assure that
vocational rehabilitation services as mandated under RSA 281-A: 25 are provided
by qualified individuals. The rules
specify the process by which those individuals are to be certified.
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 516.02 Scope.
These rules shall apply to all vocational rehabilitation providers who
are servicing injured employees who are receiving benefits under the
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 516.03 Definitions.
(a) “Board” means the Vocational Rehabilitation
Provider Advisory Board as established by RSA 281-A: 69.
(b)
“Certified disability management specialist (CDMS)” means one who
provides preventative and remedial services to minimize the impact and cost of
disability and to enhance productivity as certified by the Certification of
Disability Management Specialists Commission (CDMSC).
(c)
“Certified rehabilitation counselor (CRC)” means one who systematically
assists persons with physical, mental, developmental, cognitive, and emotional
disabilities to achieve their personal, career, and independent living goals in
the most integrated setting possible through the application of the counseling
process as certified by the Commission on Rehabilitation Counselor
Certification (CRCC).
(d)
“Certified vocational evaluator (CVE)” means one who conducts a comprehensive
process that systematically uses real or simulated work as the focus for
assessment and vocational exploration, the purpose of which is to assist
individuals in their vocational development as certified by the Commission on Certification
of Work Adjustment and Vocational Evaluation Specialists (CCWAVES).
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 516.04 Categories.
(a)
The certified vocational rehabilitation provider (CVRP) shall meet the
definition required for one of the categories below:
(1) Current certified rehabilitation counselor
(CRC);
(2) Current certified disability management
specialist (CDMS); or
(3) Current certified vocational evaluator (CVE).
(b)
The certified vocational rehabilitation provider intern (CVRPI) shall
meet all of the following criteria:
(1) The individual
shall submit a written professional development plan (PDP) to the commissioner
which outlines how one of the categories listed in (a) above shall be achieved
within 5 years from the date of application;
(2) The individual shall be supervised by a
certified vocational rehabilitation provider (CVRP); and
(3) The individual shall file annually with the
commissioner a progress report on the anniversary date of application regarding
the status of the written professional development plan (PDP).
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 516.05 Application Process for Certificates.
(a)
An applicant to become a vocational rehabilitation provider shall
request initial certification by submission of required information and
certificate fee to the commissioner at any time during the calendar year.
(b)
The applicant shall provide the following in the order below:
(1) Applicant’s name;
(2) Applicant’s home address;
(3) Applicant’s home telephone number;
(4) Applicant’s business name or employer’s name;
(5) Applicant’s business address, if different,
or employer’s address;
(6) Applicant’s business telephone number, if
different, or employer’s telephone number;
(7) Current certification type(s), number, and
expiration date;
(8) Educational level with major field of study
and name of school attended;
(9) Related work experience with name of
employer(s), job title(s), and years of experience;
(10) A statement that certifies that the information
provided is true and correct in all respects; and
(11) Signature of the applicant and the date
signed.
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 516.06 Certificate Renewal.
(a)
The CVRP shall apply biennially for certificate renewal by submission
of:
(1) A completed application;
(2) Documentation of the completion of the required
continuing education credits; and
(3) Documentation of attendance at mandatory
department of labor training.
(b)
Certification shall expire if the completed renewal application is not
received within the 30 business days following the date of certificate expiration.
(c)
For certification application occurring within one year from the
expiration date of the previous certificate, the applicant shall submit the
following:
(1) A completed application;
(2) Documentation of the completion of the required
continuing education credits;
(3) Current certification type(s), number, and
expiration date; and
(4) Related work experience with name of
employer(s), job title(s), and years of experience.
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 516.07 Continuing Education Requirements.
(a)
At least 32 continuing education credits shall be accrued biennially by
all certified providers and interns.
(b)
Annual attendance at one department of labor training shall be
mandatory.
(c) The provider or intern may
petition the commissioner in writing for exemptions from Lab 516.07(b) under
the following conditions:
(1) Personal illness or injury;
(2) Death or serious illness or injury of a
family member;
(3) Financial hardship;
(4) Required legal appearances; or
(5) Any circumstance in which attendance is
prevented.
(d)
The commissioner shall render a decision in writing to the provider or
the intern within 10 business days of receipt.
If the petition meets one of the criteria in numbers (1) through (5),
then an exemption shall be granted.
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 516.08 Reviewing and Certification Process.
(a)
The vocational rehabilitation provider advisory board shall make
recommendations to the commissioner regarding applicants for certification.
(b)
Applications and renewals for certification shall be reviewed for
compliance with requirements and a determination of eligibility shall be
made. The commissioner shall render a
decision in writing to the applicant within 30 business days of receipt.
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 516.09 Fees.
(a) An initial certificate fee of $75.00 shall be
submitted upon receipt of notification of application approval.
(b)
A certificate renewal fee of $25.00 shall be submitted upon receipt of
notification of application renewal approval.
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 516.10 Professional Standards.
(a)
Each certified vocational rehabilitation provider shall comply with the
code of professional ethics adopted by each of the following organizations of
which the provider is a member:
(1) Commission on Rehabilitation Counselor
Certification;
(2) Certification of Disability Management
Specialists Commission; and
(3)
Commission on Certification of Work
Adjustment and Vocational Evaluation Specialists.
(b) All certified vocational
rehabilitation providers shall, in addition to complying with (a) above, comply
with the following:
(1) The vocational rehabilitation provider shall
not engage in any activity which endangers the health, safety, or welfare of
the injured employee;
(2) The vocational rehabilitation provider shall,
at all times, respect the opinion and
privacy of the injured employee;
(3) The vocational rehabilitation provider shall
not engage in any activity which deceives, defrauds, or harms the public;
(4) The vocational rehabilitation provider shall
demonstrate honesty and impartiality in
all interactions with the injured employee, in writing of reports, charges for
professional services, and in the administration of scoring, interpretation,
and utilization of vocational tests and work samples;
(5) The vocational rehabilitation provider shall
explain the purpose of providing rehabilitation services to the injured
employee;
(6) The vocational rehabilitation provider shall
clearly identify to the injured employee all proposed vocational rehabilitation
goals designed to help the injured employee return to suitable employment as
discussed in Lab 509.02 (b);
(7) The vocational rehabilitation provider shall
recommend to the injured employee only employment which has been determined as suitable for the employee as in (6) above;
(8) Before presenting any vocational
rehabilitation plan to the department of labor, the vocational rehabilitation provider shall ensure that the injured
employee clearly understands and agrees to the vocational goals being proposed,
the proposed method to attain those goals, and the period in which the goals
are to be attained;
(9) In any case in which the vocational
rehabilitation provider has been engaged to provide services, the provider
shall not provide services which include:
a. Acting
on behalf of an insurer in negotiating for, or effecting the settlement
of a claim or claims for loss or damage covered by an insurance contract; and
b. Investigating or adjusting of
such claims.
(10) The vocational rehabilitation provider shall
refrain from giving legal advice, in any form, to the injured employee or
advising the injured employee that legal assistance is not needed;
(11) The vocational rehabilitation provider shall
not solicit referrals, either directly or indirectly, by offering money or
gifts;
(12)
The vocational rehabilitation provider shall not file false or misleading
information or statements in procuring registration or renewal of registration
as a rehabilitation provider, whether for one’s self or another;
(13) The supervising vocational rehabilitation
provider shall systematically and periodically evaluate the delivery of
rehabilitation services by the intern;
(14) When asked to render a second opinion on a
case actively managed by another vocational rehabilitation provider, the
reviewer shall not make any comment until the reviewer has conducted an in-person
evaluation and has personally reviewed rehabilitation records, plans, and all
other data necessary to reach an informed conclusion.
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab
516.11 Procedures for Submission and
Processing of Complaints of Misconduct by a CVRP or CVRPI.
(a)
Persons wishing to complain of CVRP or CVRPI misconduct shall submit to
the board a written complaint including the information described in (b) below,
using mail or any electronic means for which the board is able to maintain
security.
(b)
The complaint shall include:
(1) The name and address of the complainant;
(2) If the complaint is made on behalf of another
person, the name of that person and the relationship of that person to the
complainant;
(3) The date of the complaint;
(4) The name of the CVRP or CVRPI complained
against;
(5) If known, the business address and telephone
number of the CVRP or CVRPI complained against;
(6) A detailed description of the treatment,
action or event complained about;
(7) The beginning and ending dates of the
treatment, action or event being complained about; and
(8) As attachments, copies, but not originals, of
any documents which relate to the complaint.
(c)
The board shall mail a copy of any complaint it has not dismissed
pursuant to (d) (1) below to the CVRP or CVRPI complained against.
(d)
Within 90 calendar days of the receipt of a complaint at the board’s
office, the board shall take one of the following actions:
(1) Dismiss the complaint by applying the
standard in (e) below; or
(2)
Begin an investigation of the allegations in the complaint by appointing a
special investigator.
(e)
The board shall dismiss any complaint, either without investigation
above or after investigation, when it determines that:
(1) The board has no authority to regulate the
actions or omissions complained of; or
(2) There is nothing in the complaint to suggest
that the actions or omissions complained of constitute misconduct under RSA
281-A: 69, the rules or any order of the board, or any statute within the
authority of the board to enforce.
(f)
The board shall issue a written statement to a complainant whose
complaint it has dismissed, including:
(1) Notice of, and the reason for, the dismissal;
and
(2)
A statement of the complainant’s right to challenge the dismissal through a
hearing in accordance with this chapter.
(g) If a complaint is not dismissed, the matter
will proceed in accordance with the following rules.
Source. #5041, eff 1-9-91; amd
by #5235, eff 9-27-91; rpld by 5894, eff 9-2-94
New. #6596, eff 10-3-97, EXPIRED: 10-3-05
New. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
PART
Lab 517 CONDUCT OF HEARINGS REGARDING
CVRP OR CVRPI MISCONDUCT COMPLAINTS; WAIVER OF RULES
Lab 517.01 Presiding Officer.
(a)
Hearings shall be conducted by a presiding officer designated by the
board.
(b)
The presiding officer shall as necessary:
(1) Regulate and control the course of the
hearing;
(2) Facilitate settlement of the dispute that is
the subject of the hearing;
(3) Administer oaths and affirmations;
(4) Receive relevant evidence and exclude
irrelevant, immaterial, or unduly repetitious evidence;
(5)
Rule on procedural requests at the request of a party or intervenor or on the
presiding officer’s own motion;
(6) Question anyone who testifies to the extent
required to make a full and fair record;
(7) Arrange for recording the hearing as
specified in RSA 541-A: 31, VII; and
(8) Take any other action consistent with
applicable statutes, rules, and case law necessary to conduct the hearing and
complete the record in a fair and timely manner.
Source. #9287, eff 10-1-08, ss by #10038, eff 12-1-11;
ss by #11067, eff 4-1-16
Lab 517.02 Withdrawal of Presiding Officer.
(a)
Upon his or her own initiative or upon the motion of any party or
intervenor, the presiding officer shall withdraw from any adjudicative proceeding
for good cause.
(b)
Good cause shall exist if the presiding 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 or intervenor;
(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 acquaintance with any party, intervenor
or witness shall not constitute good cause for withdrawal.
Source. #9287, eff 10-1-08; ss by #10038, eff 12-1-11;
ss by #11067, eff 4-1-16
Lab 517.03 Waiver or Suspension of Rules by Presiding
Officer. The presiding officer, upon
the motion of any party or intervenor, or on his or her own initiative, shall
suspend or waive any requirement 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. #9287, eff 10-1-08; ss by #10038, eff 12-1-11;
ss by #11067, eff 4-1-16
PART
Lab 518 TIME PERIODS
Lab 518.01 Computation of Time.
(a)
Unless otherwise specified, the unit of time for time periods referenced
in this chapter shall be calendar days.
(b)
Computation of any period of time referred to in this chapter 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 a legal holiday, then the time period shall be extended to include the first
business day following the Saturday, Sunday, or legal holiday.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
PART
Lab 519 FILING, FORMAT AND DELIVERY OF
DOCUMENTS
Lab 519.01 Date of Issuance or Filing.
(a)
All written documents governed by this chapter shall be rebuttably
presumed to have been issued on the date noted on the document.
(b)
All written documents governed by this chapter shall be rebuttably
presumed to have been filed with the board on the date of receipt, as evidenced
by a date stamp placed on the document by the board or its staff in the normal
course of business.
Source. #9287, eff 10-1-08; ss
by #11067, eff 4-1-16
Lab 519.02 Format of Documents.
(a) All correspondence, pleadings, motions or
other documents filed shall:
(1)
Include the
title and docket number of the case, if known;
(2) Be typewritten
or clearly printed on durable paper 8 ½
by 11 inches in size;
(3) Be signed by the proponent of the document,
or, if the proponent appears by a representative, by the representative; and
(4) Include a statement certifying that a copy of
the document has been delivered to all parties and intervenors.
(b)
The signature of a party or intervenor or the representative of the
party or the intervenor on a document filed with the board shall constitute
certification that:
(1) The signer has read the document;
(2) The signer is authorized to file it;
(3) To the best of the signer’s knowledge,
information and belief there are good and sufficient grounds to support it; and
(4) The document has not been filed for purposes
of delay.
Source. #9287, eff 10-1-08; ss
by #11067, eff 4-1-16
Lab 519.03 Delivery of Documents.
(a)
Copies of all motions, exhibits, memoranda, or other documents filed by
any party or intervenor shall be delivered by that party or intervenor to the
presiding officer and to all other parties and intervenors.
(b)
All notices, orders, decisions or other documents issued by the
presiding officer or the board shall be delivered to all parties and intervenors.
(c)
Delivery of documents relating to a proceeding shall be made either in
hand or by depositing into the
(1) The name of the person intended to receive
the document;
(2) The full address, including zip code, last
provided to the board by such person; and
(3) Prepaid first class postage.
(d)
When a party or intervenor appears by a representative, delivery of a
document to the party’s or intervenors representative either in hand or at the
address stated on the appearance filed by the representative shall constitute
delivery to the party or intervenor.
Source. #9287, eff 10-1-08; ss
by #11067, eff 4-1-16
PART
Lab 520 MOTIONS AND OBJECTIONS
Lab 520.01 Motions; Objections to Motions; Ruling on
Motions.
(a)
Motions shall be in written form and filed with the presiding officer,
unless made in response to a matter asserted for the first time at a hearing or
based on information that was not received in time to prepare a written motion.
(b)
Oral motions and any oral objections to such motions shall be recorded
in full in the record of the hearing. If
the presiding officer finds that the motion requires additional information in
order to be fully and fairly considered, the presiding officer shall direct the
proponent to submit the motion in writing and provide supporting information.
(c)
Except as otherwise provided in this chapter, objections to written
motions shall be filed within 10 calendar days of the date of the motion.
(d)
Failure by an opposing party or an intervenor to object to a motion
shall not in and of itself constitute grounds for granting the motion.
(e)
When necessary to obtain information or clarify an issue relating to the
proceedings, the presiding officer shall hold a hearing on the motion.
(f)
The presiding officer shall rule upon a motion after full consideration
of all objections and applicable law.
Source. #9287, eff 10-1-08; ss
by #11067, eff 4-1-16
PART
Lab 521 COMMENCEMENT OF ADJUDICATIVE PROCEEDINGS; APPEARANCES; PREHEARING
CONFERENCES; RECORDING THE HEARING
Lab 521.01 Commencement of Adjudicative Proceedings.
(a)
An adjudicative proceeding shall be commenced by an order of the board
giving the parties the notice specified in (b) below.
(b)
The notice of hearing shall contain:
(1) The names and addresses of the parties;
(2) A statement of the nature of the hearing;
(3) The time and place of the hearing and of any
pre-hearing conference;
(4) A statement of the legal authority under
which the hearing is to be held;
(5) A reference to the applicable statutes and
rules;
(6) A short and plain statement of the issues
presented; and
(7) A statement that each party has the right to
have representation by an attorney at the party’s own expense.
(c)
If the board finds that the public health, safety, or welfare requires
emergency action and incorporates a finding to that effect in its order,
immediate suspension of a certification shall be ordered pending an adjudicative
proceeding. The board shall commence
this adjudicative proceeding not later than 10 working days after the date of
the board order suspending the certification.
Source. #9287, eff 10-1-08; ss
by #11067, eff 4-1-16
Lab 521.02 Appearances.
(a) An appearance shall be filed by:
(1) The board’s special investigator;
(2) Each party or the party’s representative, if
any; and
(3) Each intervenor or the intervenor’s
representative, if any.
(b)
The appearance shall contain the following information:
(1) The docket number assigned by the board or a
brief identification of the case; and
(2) The daytime address and telephone number of
the person filing the appearance.
Source. #9287, eff 10-1-08; ss
by #11067, eff 4-1-16
Lab 521.03 Prehearing Conference. Any party may request, or the presiding
officer shall schedule on his or her own initiative, a prehearing conference in
accordance with RSA 541-A: 31, V to consider:
(a)
Offers of settlement;
(b)
Simplification of the issues;
(c)
Stipulations or admissions as to issues of fact or proof by consent of
the parties;
(d)
Limitations on the number of witnesses;
(e)
Changes to standard procedures desired during the hearing by consent of
the parties;
(f)
Consolidation of examination of witnesses; or
(g)
Any other matters which aid in the disposition of the proceeding.
Source. #9287, eff 10-1-08; ss
by #11067, eff 4-1-16
Lab 521.04 Recording the Hearing.
(a)
Except in the circumstances described in (b) below, the presiding officer
shall record the hearing by electronic recording or any other method that will
provide a verbatim record.
(b) If any person requests a transcript of the
electronic recording of a hearing, the board shall:
(1) Cause a transcript to be prepared; and
(2) Upon receipt of payment for the cost of the
transcription, provide a copy of the transcript to the person making the
request.
Source. #9287, eff 10-1-08; ss
by #11067, eff 4-1-16
PART
Lab 522 INTERVENTION; ROLES OF THE BOARD’S SPECIAL INVESTIGATOR, COMPLAINANTS
AND BOARD STAFF
Lab 522.01 Intervention.
(a)
A non-party may intervene in a matter pending before an agency under the
provisions of RSA 541-A:32, by filing a motion stating facts demonstrating that
the non-party’s rights or other substantial interests might be affected by the
proceeding or that the non-party qualifies as an intervenor under any provision
of law.
(b)
If the presiding officer determines that such intervention would be in
the interests of justice and would not impair the orderly and prompt conduct of
the hearing, he or she shall grant the motion of intervention.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 522.02 Role of the Board’s Special Investigator. The board’s special investigator shall be the
party to present the case against the CVRP or CVRPI.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 522.03 Role of Complainants in Disciplinary
Hearings. A complainant shall have
no role in the disciplinary hearing of the CVRP or CVRPI complained against
other than that of witness unless the complainant petitions for, and is
granted, the right to intervene.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 522.04 Role of Board Staff in Hearings. Unless called as witnesses, board staff shall
have no role in hearings.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
PART
Lab 523 CONTINUANCES AND FAILURE TO
ATTEND HEARING
Lab 523.01 Continuances.
(a)
Any party or intervenor may make an oral or written motion that a hearing
be delayed or continued to a later date or time.
(b)
A motion for a delay or a continuance shall be granted if the presiding
officer determines that a delay or continuance would assist in resolving the
case fairly.
(c)
If the later date, time and place are known when the hearing is being
delayed or continued, the information shall be stated on the record. If the later date, time and place are not
known at that time, the presiding officer shall as soon as practicable issue a
written scheduling order stating the date, time and place of the delayed or
continued hearing.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 523.02 Failure of a Party to Attend or
Participate in the Hearing.
(a)
A party shall be in default if the party:
(1) Has the overall burden of proof;
(2) Has been given notice; and
(3) Fails to attend the hearing.
(b)
If a party is in default under (a) above, the case shall be dismissed.
(c)
If a party who does not have the overall burden of proof fails to attend
a hearing after having been given notice, the testimony and evidence of any
other parties or intervenors shall be received and evaluated.
(d)
If a party who has the overall burden of proof attends a hearing but
fails to participate by presenting evidence or argument, a decision shall be
entered against that party.
(e)
The board shall not dismiss the case under (b) above if the failure to
attend results from circumstances that are beyond the control of the party.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
PART
Lab 524 REQUESTS FOR INFORMATION AND
DOCUMENTS
Lab 524.01 Voluntary Production of Information.
(a)
Each party and intervenor shall attempt in good faith to make complete
and timely response to requests for the voluntary production of information and
documents relevant to the hearing.
(b)
When a dispute arises concerning a request for the voluntary production
of information or documents, any party or intervenor may file a motion to
compel the production of the requested information or documents.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 524.02 Motions to Compel Production of
Information and Documents.
(a)
Any party or intervenor may make a motion seeking an order for
compliance with an information or document request. The motion shall be filed at least 30 days
before the date scheduled for the hearing, or as soon as possible after
receiving the notice of the hearing if such notice is issued less than 30 days
in advance of the hearing.
(b)
The motion to compel shall:
(1) Set forth in detail those facts which justify
the request for information or documents; and
(2) List with specificity the information or
documents being sought.
(c)
The party or intervenor challenging the information or document request
may object to the motion to compel.
(d)
The presiding officer shall grant the motion to compel if its proponent
has demonstrated that an order for compliance is necessary for a full and fair
presentation of evidence at the hearing.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 524.03 Mandatory Prehearing Disclosure of
Witnesses and Exhibits. At least 5
days before the hearing, the parties and intervenors shall provide to the other
parties and intervenors:
(a)
A list of all witnesses to be called at the hearing containing the names
of the witnesses, their addresses and their telephone numbers;
(b)
Brief summaries of the testimony of the witnesses to be called;
(c)
A list of documents and exhibits to be offered as evidence at the
hearing;
(d)
A copy of each document to be offered as evidence at the hearing; and
(e)
An offer to allow the inspection of non-documentary exhibits to be
offered as evidence at the hearing at times and places of convenience to the parties
and intervernors.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
PART
Lab 525 HEARING PROCEDURE
Lab 525.01 Standard and Burden of Proof. The party or intervenor asserting a
proposition shall bear the burden of proving the truth of the proposition by a
preponderance of the evidence.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 525.02 Order of Testimony; Cross-Examination.
(a)
Any individual offering testimony, evidence or arguments shall state for
the record his or her name and role in the hearing. If the individual is representing another
person, the person being represented shall also be identified.
(b)
Testimony on behalf of the parties shall be offered in the following
order:
(1) The testimony of the party or parties bearing
the overall burden of proof and such witnesses as such party or parties may
call; and
(2) Thereafter, the testimony of the party or
parties opposing the party who bears the overall burden of proof and such
witnesses as such party or parties may call.
(c)
The testimony of intervenors and such witnesses as such intervenors may
be allowed to call shall be offered at the time directed by the presiding
officer.
(d)
Each party may cross-examine any witnesses offered against that party.
(e) The presiding officer shall call witnesses not
called by the parties if their testimony is required for a full and fair
adjudication of the issues.
(f)
The right of an intervenor to cross-examine witnesses shall be
determined by the presiding officer.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 525.03 Evidence.
(a)
Receipt of evidence shall be governed by the provisions of RSA 541-A:
33.
(b)
All rules of privilege recognized under the laws of the state of
(c)
All documents, materials and objects offered as exhibits shall be
admitted into evidence unless excluded by the presiding officer as irrelevant,
immaterial, unduly repetitious or legally privileged.
(d)
All objections to the admissibility of evidence shall be stated as early
as possible in the hearing, but not later than the time when the evidence is
offered.
(e)
Transcripts of testimony as well as documents, materials and objects
admitted into evidence shall be public records unless the presiding officer
determines that all or part of them is exempt from disclosure under RSA
281-A:21-b, RSA 91-A:5, or applicable case law.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 525.04 Proposed Findings of Fact and Conclusions
of Law.
(a)
Any party or intervenor may submit proposed findings of fact and conclusions
of law.
(b)
The presiding officer shall require the submission of proposed findings
of fact and rulings of law and specify a deadline after the close of the
hearing for their submission when:
(1) Any party or intervenor has requested such action;
(2) The presiding officer is required to submit
findings of fact and rulings of law to the board; or
(3) The presiding officer determines that proposed
findings of fact and rulings of law would clarify the issues presented at the
hearing.
(c)
In any case where proposed findings of fact and rulings of law are
submitted, the decision shall include rulings on the proposals.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 525.05 Closing the Record.
(a)
After the conclusion of the hearing, the record shall be closed and no
other evidence shall be received into the record except as allowed by paragraph
(b) of this section and Lab 525.06.
(b)
Before the conclusion of the hearing, a party may request that the
record be left open to allow the filing of specified evidence not available at
the hearing. If the other parties to the
hearing have no objection or if the presiding officer determines that such evidence
is necessary to a full consideration of the issues raised at the hearing, the
presiding officer shall keep the record open for a period of time necessary for
the party to file the evidence.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 525.06 Reopening the Record. At any time prior to the issuance of the
decision on the merits, the presiding officer, on the presiding officer’s own
initiative or on the motion of any party, shall reopen the record to receive relevant,
material and non-duplicative testimony, evidence or arguments not previously
received, if the presiding officer determines that such testimony, evidence or
arguments are necessary to a full and fair consideration of the issues to be
decided.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 525.07 Disposition.
(a)
The presiding officer who has been designated the authority to conduct
the hearing shall submit to the board a written proposal for disposition
containing:
(1) The disposition proposed by the presiding
officer;
(2) A statement of the reasons for the proposed
disposition; and
(3) Findings of fact and rulings of law necessary
to the proposed disposition.
(b)
The board shall render a decision and dispose of a matter as it sees fit
under the circumstances, including the possible sanctions of warning,
suspension of a certificate, or revocation of a certificate, or other
appropriate action. The decision will
not become final until the possibility of rehearing and filing of exceptions
under RSA 541-A: 34 are exhausted.
(c) The board shall keep a final decision in its
records for at least 5 years following its date of issuance, unless the
director of the division of records management and archives of the department
of state sets a different retention period pursuant to rules adopted under RSA
5:40.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
Lab 525.08 Rehearing.
(a)
Within 30 calendar days of a decision or order any party or person
directly affected may request rehearing of any matter determined in the
proceeding or covered by the decision or order by submitting a written motion
specifying:
(1) The issues to be considered at the rehearing;
and
(2) Every ground on which it is claimed that the
decision or order is unlawful or unreasonable.
(b)
An objection to a motion for rehearing shall be submitted within 20
calendar days of the date of submission of the motion.
(c)
Within 10 calendar days of submission of the motion for rehearing, the
presiding officer, if he or she has received either an objection or a notice of
no objection, shall employ the standards in (f) below to grant or deny the
motion for rehearing.
(d)
Within 10 calendar days of submission of the motion for rehearing, if
the presiding officer has not received an objection or notice of no objection,
he or she shall, pending the denial of the motion for rehearing or the
completion of the rehearing, suspend the decision or order complained of.
(e)
When the time specified in (b) above for submitting an objection has
expired, the board shall employ the standards in (f) below to either grant or
deny the motion for rehearing.
(f)
The presiding officer shall grant the motion for rehearing if he or she
determines that, in the original hearing:
(1) The relevant evidence was incorrectly
assessed; or
(2) The relevant law was incorrectly applied; or
(3) There was a substantial failure to comply
with this chapter.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
PART
Lab 526 SETTLEMENTS
Lab 526.01 Settlement of Some or All Issues in a
Dispute.
(a)
Any CVRP or CVRPI who has a dispute with the board shall have the
opportunity at any time to reach an agreement to settle some or all of the issues
if:
(1) There is no dispute about the material facts
underlying the issues to be settled; and
(2) If the dispute relates to a complaint, the
complainant has the opportunity to submit for the board's consideration written
comment on the terms of the proposed settlement.
(b)
To be effective, an agreement to settle shall be:
(1) In writing;
(2) Signed by the CVRP or CVRPI; and
(3) After the signing by the CVRP or CVRPI,
finalized as an order issued by the board.
(c)
The signing by the CVRP or CVRPI of an agreement to settle shall constitute
a waiver of the CVRP or CVRPI's right to a hearing of the issues resolved by
the agreement.
Source. #9287, eff 10-1-08;
ss by #11067, eff 4-1-16
APPENDIX
|
Rule |
|
|
Lab 501.01 |
RSA 281-A:26, 29,
32, 42, 53, 53-a, 54 |
|
Lab 501.02 |
RSA 281-A:42 and
53 |
|
Lab 502.01 |
RSA 281-A:23,
23-b, 25, 25-a, 26, 28, 29, 31, 32, 33, 37 |
|
Lab 502.02 |
RSA 281-A:5, I,
RSA 281-A:6 |
|
Lab 502.03 |
RSA 281-A:2, XII |
|
Lab 502.04 |
RSA 281-A:43 |
|
Lab 502.05 |
RSA 281-A:5 |
|
Lab 502.06 |
RSA 281-A:2, VI,
3-a, 4, 4-a, 5-b, 5-d, 7, 9, 10, 22, 23, 23-a, 23-b, 25, 28, 30, 31, 32, 38,
42, 42-a, 43, 50, 53, 53-a, 55, 59, 63, 64 |
|
Lab 502.07 |
RSA 281-A:2 |
|
Lab 502.08 |
RSA 281-A:2 |
|
Lab 502.09 |
RSA 281-A:2 |
|
Lab 502.10 |
RSA 281-A:23 |
|
Lab 502.11 |
RSA 281-A:4-a, 4-b,
5, 20, 23, 42, 53-a |
|
Lab 502.12 |
RSA 281-A:4 |
|
Lab 502.13 |
RSA 281-A:2, 15 |
|
Lab 502.14 |
RSA 281-A:2VII |
|
Lab 502.15 |
RSA 281-A:I |
|
Lab 502.16 |
RSA 281-A:25 |
|
Lab 503.01 |
RSA 281-A:23, V |
|
Lab 503.02 |
RSA 281-A:23, IV |
|
Lab 504.01 |
RSA 281-A:4, 5,
53 |
|
Lab 504.02 |
RSA 281-A:2, XV,
15, 19, 20, 53 |
|
Lab 504.03 |
RSA 281-A:25-a,
54, IX |
|
Lab 504.04 |
RSA 281-A:23-b |
|
Lab 504.05 |
RSA 281-A:25-a |
|
Lab 505.01 |
RSA 281-A:5,
III, 42, 53 |
|
Lab 506.01 |
RSA 281-A:5-d,
38, 40, 42 |
|
Lab 506.02 |
RSA 281-A:15,
23,24, 26, 31, 32, 40, 42, 63 |
|
Lab 506.02 (j) (1) |
RSA
281-A:32, IX, XIV |
|
Lab 506.02 (s) |
RSA
281-A:28, RSA 281-A:28-a, RSA 281-A:31,RSA 281-A:31-a |
|
Lab 506.03 |
RSA 281-A: 29,
30 |
|
Lab 506.04 |
RSA 281-A:15,
III, 54, 55, 55-a |
|
Lab 506.05 |
RSA 281-A:63 |
|
Lab 507.01 |
RSA 281-A:15,
III, 31, 53-a |
|
Lab 507.02 |
RSA 281-A:3-a |
|
Lab 507.03 |
RSA 281-A: 15,
III |
|
Lab 507.04 |
RSA 281-A:38, 39 |
|
Lab 507.04 (b) |
RSA:281-A:38
II |
|
Lab 507.05 |
RSA 281-A:23 |
|
Lab 508.01 |
RSA 281-A:23, 32 |
|
Lab 508.02 |
RSA 281-A:23 |
|
Lab 509 |
RSA 281-A:25 |
|
Lab 510.01 |
RSA 281-A:48 |
|
Lab 510.02 |
RSA 281-A:3-a,
43, 48 |
|
Lab 510.03 |
RSA 281-A:31,
31-a, 48, III; RSA 279 |
|
Lab 510.04 |
RSA 281-A:3-a |
|
Lab 511.01 |
RSA 281-A:37 |
|
Lab 511.02 |
RSA 281-A:44 |
|
Lab 511.03 |
RSA 281-A:13 |
|
Lab 511.01 |
RSA 281-A:37 |
|
Lab
512.01 |
RSA 281-A:42 |
|
Lab
516 – Lab 526 |
RSA
281-A:25, 68, 69 |