STEPS TO TAKE TO SECURE PROTECTION THROUGH THE SECOND INJURY FUND

By: Paul Salafia, Esq. and Peg O'Brien, Esq.

One of the most important aspects of the New Hampshire Workers' Compensation Law is the Second Injury Fund. The Second Injury Fund was established to encourage employers to hire and retain workers who have pre-existing permanent, physical or mental impairments. It is important to note that the pre-existing permanent, physical or mental impairment does not have to be work-related in nature. The Second Injury Fund grants employers and insurance carriers partial reimbursement of workers' compensation benefits paid when a subsequent disability by injury creates a disability in conjunction with that of a pre-existing permanent, physical or mental impairment which is greater than would have occurred by the result of the subsequent work-related injury alone. See generally, the New Hampshire Department of Labor website regarding Second Injury Fund.

Pursuant to the workers' compensation statute, RSA 281-A:54, in order to qualify for reimbursement from the Second Injury Fund, an employer has to establish by written records, or by an affidavit executed at the time of hire or retention in employment, that the employer had knowledge of the employee's permanent, physical or mental impairment at the time the employee was hired or at the time that the employee was retained in employment. Notarized copies of a written record of knowledge by the employer of the employee's permanent impairment at the time of hire or continued employment are the best evidence which can be utilized to fulfill this eligibility requirement. As an alternative to a notarized copy of a written record, an affidavit that the employer had knowledge of the employee's permanent, physical or mental impairment, which was executed at the time of hire or retention, may be used as the written record.

The benefit of acceptance of a workers' compensation claim by the Second Injury Fund is that the employer, carrier, or self-insured trust can receive reimbursement through the Second Injury Fund for indemnity benefits and medical benefits paid. During the first 104 weeks of disability, the employer or carrier shall be reimbursed 50% after the first $10,000.00 paid on all indemnity and medical benefits. After the first 104 weeks of disability, payments made for medical and disability benefits will be reimbursed on a dollar-for-dollar basis.

Employers are encouraged to utilize a Second Injury Fund questionnaire at the time a conditional offer of employment is made. Employers are also encouraged to discuss the Second Injury Fund form with the prospective employee. Simply handing a form to an individual and asking him/her to document prior permanent, physical and mental impairments may lead to less than a full disclosure of those impairments. It is important to instruct the prospective employee that a fully accurate Second Injury Fund questionnaire will not change his/her entitlement to workers' compensation benefits, should he/she sustain a work-related injury. However, the execution of a fully accurate Second Injury Fund questionnaire may allow the employer to receive partial reimbursement for benefits paid.

Requesting an individual to complete the Second Injury Fund questionnaire at the time an employer makes a conditional offer of employment is permissible under the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission (EEOC) has confirmed that an employer may obtain this information and may submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers' compensation offices, carriers, and 'second injury' funds without violating ADA confidentiality requirements. See EEOC Guidance here. If an employee is injured in the workplace, it is important for an employer to share the Second Injury Fund questionnaire and related documents with the workers' compensation carrier.

For more information about the subject matter of this article, please contact Paul Salafia, Chair of Devine Millimet's Workers' Compensation Practice Group at 603-695-8749 or visit the Practice Group's website here.

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