Worker's Compensation/Second Injury Fund
Appeal of The Hartford Insurance Company, Nos. 2010-233 & 2010-234
(May 26, 2011)
Facts: The Hartford was the workers’ compensation insurer in both cases.
In Hamel’s case, the claimant was temporarily disabled for psychiatric reasons in 1995, and diagnosed with Bi-polar disorder. In 2005, the employer was notified that the claimant was not able to use a respirator (for work) because of claustrophobia. The employer was aware of both issues. In 2006, Hamel alleged a work-related injury of cervical degenerative disc disease and left cubital tunnel syndrome. The Hartford filed for reimbursement from the Second Injury Fund, which was denied.
In Rygiel’s case, the claimant had Type II diabetes, requiring the use of medication. As a commercial truck driver, he was required to pass vehicle driver examinations. In 2001, it was noted that Rygiel had liver disease. In 2003, Rygiel had his right fifth toe removed due to a burn from a heating pad that he could not feel due to diabetic neuropathy. In 2006, Rygiel sustained a work-related injury to his wrist. In 2009, The Hartford requested reimbursement from the Second Injury Fund, which was denied.
Each case was appealed to the Compensation Appeals Board, and were respectively denied reimbursement from the Fund. This consolidated appeal followed.
Vacated and remanded.
The State first argued that de novo review was not appropriate since the CAB made factual findings relative to the claimants’ permanent conditions, and then found that neither condition constituted a hindrance or obstacle for employment. The Court disagreed, finding that the CAB’s determination is an interpretation of what the statutory language means, thus permitting the Court a de novo review.
The Hartford then argued that the CAB should have employed an objective analysis to determine whether a prospective employer in the open labor market would conclude that the underlying medical condition could rise to the level of a hindrance or obstacle to employment. The Hartford further argued that the CAB focused its analysis on the ability of the claimants to maintain and perform their current work, and then determined that because their current employers retained them, they would face no obstacles or hindrances to employment if they were to become unemployed.
The State countered that the CAB was not required to solely use an “objective” test, and that the CAB was within their discretion to consider the abilities of the claimants to maintain and perform their current jobs when determining whether their preexisting conditions were a hindrance/obstacle to other employment.
The primary issue before the Court was whether RSA 281-A:2, XIV permitted the CAB to consider an employee’s past job performance as evidence that their preexisting impairment would not be a hindrance or obstacle to obtaining employment in the future.
RSA 281-A:2, XIV states:
Permanent physical or mental impairment'', as used in RSA 281-A:54, means any permanent condition that is congenital or due to injury or disease and that is of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining employment if the employee should become unemployed.
The Court looked to outside jurisdictions for instruction, as this was an issue of first impression. In Special Fund Div. v. Indus. Com’n of Ariz., 897 P.2d 643, 647-48 (Ariz.Ct.App. 1994) and Country Wide Truck v. Indus. Com’n, 891 P.2d 877, 878 (Ariz.Ct.App. 1994), the courts in both cases ruled that the “objective” test was appropriate. In Country Wide Truck, the court ruled that “the inquiry should be whether the impairment is such that an employer who knew of it and its extent would more likely than not significantly consider it when making a decision to hire or retain the employee.” (Id. At 879).
The Court further noted rulings on the issue of an employer’s reluctance to hire an employee with a preexisting condition. The court in Unit wall Co. v. Speh, 133 So.2d 304, 307 (Fla. 1961) noted that “if the employer of an employee with a preexisting condition, on injury to the employee, may be required to compensate him for treatment or disability far greater than would be the case if the employee had not been afflicted with the condition, the condition may be classified as one that is or is likely to be a hindrance or obstacle to employment.”
The Court agreed with the reasoning of these other jurisdictions and concluded that the employee’s ability to perform their existing job is not determinative of whether the preexisting impairment is a hindrance or obstacle to obtaining employment.
The Court determined that the inquiry should be "whether the impairment is such that an employer who knew of it and its extent would more likely than not significantly consider it when making a decision to hire or retain the employee."
Stephen J. Schulthess