Court: Appeal can't stay hearing officer's order
Published 03/02/99

When an employee is injured in the course of his employment, he may be entitled to receive both weekly indemnity benefit payments and payment for the cost of medical care from his employer's workers compensation carrier. The employee normally requests that the insurance carrier make these payments, and in many cases the insurance company will voluntarily agree to do so. However, when an insurance company does not agree to make payments or provide for medical care as requested on a claim for workers compensation, the employee can request a hearing at the New Hampshire Department of Labor. The hearings are held in the first instance before a hearing officer, and either party can then appeal the hearing officer's decision to the Compensation Appeals Board. The New Hampshire Supreme Court has recently clarified the status of a hearing officer's order during the pendency of that appeal.

In Appeal of Rainville, the Department of Labor hearing officer had ordered the insurance carrier to pay for physical therapy requested by the injured employee. The insurance company appealed that decision to the Compensation Appeals Board (CAB), and refused to pay for the physical therapy while it was waiting for the CAB to hear the case. The CAB ultimately decided that the physical therapy was not necessary medical treatment, and refused to order the insurance company to pay for physical therapy that had been performed while the appeal was pending.

The New Hampshire Supreme Court reversed the decision of the CAB with respect to payment for the physical therapy that the employee had received while the appeal was pending before the CAB. The Court held that an appeal to the CAB does not stay the order of the hearing officer, unless the hearing officer specifically states otherwise. As a result, even though the CAB found that the physical therapy ordered by the hearing officer was not necessary medical treatment, the insurance company was still required to pay for that medical care during the pendency of the appeal to the CAB.

When the CAB hears an appeal, it considers the matter without giving deference to the decision of the hearing officer. It is not bound by the hearing officers' factual findings, and the case essentially gets retried in front of the CAB. As a result, appeals to the CAB are common. This makes this decision from the New Hampshire Supreme Court an important one, as many employees might otherwise be left "in limbo" while an appeal to the CAB is pending.

The attorney who wrote this article is no longer at the law firm of Hamblett & Kerrigan, P.A. in Nashua. Other practitioners at the firm handle work in the same areas of law which he worked in, which included employment law, family law, and general litigation, including property tax abatement and personal injury.You can reach one of those lawyers by calling the law firm (883-5501) or by e-mail at info@nashualaw.com .

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