Appeal of Raymond Cover, Case No. 2014-0583 (February 26, 2016)

Earlier this year the New Hampshire Supreme Court published its decision in the matter of Appeal of Raymond Cover. The result of the decision is that part-time employees injured at work have a right to reinstatement under New Hampshire law (RSA 281-A:25-a).

The Court dealt with the validity of New Hampshire Administrative Rule, Lab 504.05 (b) (3) and whether part-time employees are entitled to reinstatement under the Workers' Compensation Act. The statute, RSA 281-A:25-a, states "[a]n employee of an employer who employs 5 or more employees, who has sustained an injury, shall be reinstated by the employer to the employee's former position of employment upon request for such reinstatement... ." At the time of this litigation, Lab 504.05 (b) (3) stated, "[a]n employer shall not be obligated to provide the former position to... a part time employee as defined by the employer's personnel policy." The Court found that "the rule impermissibly modifies the statute and is therefore invalid." The Court reiterated its longstanding edict that the Workers' Compensation Law should be read "liberally to give the broadest reasonable effect to its remedial purpose and resolve all reasonable doubts in favor of the injured worker." Since RSA 281-A:25-a does not specifically exclude part-time employees from the right to reinstatement, while Lab 504.05 (b) (3) does, the Court stated that "the rule cannot be characterized as a rule that merely fills in the details to effectuate the purpose of the statute."

Acknowledging the likelihood of the Court deciding in this fashion, the Department of Labor had already began the process of altering Lab 504.05 (b) (3) earlier this year. The rule now omits the language quoted above and provides for reinstatement to any full time or part time employee (though temporary employees are still exempt and some other qualifications apply).

The Court also went into some detail in dismissing a jurisdictional argument. The employer argued that the only way to challenge the validity of the Department of Labor rule was through a Declaratory Judgment action brought in Superior Court with the Department of Labor as an opposing party.

Raymond Cover had challenged the validity of Lab 504.05(6)(3) before the Department of Labor Hearing Officer initially and the Compensation Appeals Board on appeal. RSA 541-A:24 provides that parties "may" challenge a Department of Labor administrative rule at the Superior Court via a Declaratory Judgment action, including the Department of Labor as a party. The employer argued "that the word 'may'... is meant to express a right ... to challenge a rule's validity [and] if that right is exercised, then the action must be filed" in Superior Court and include as a party the agency that adopted the rule. The Court disagreed. The Court focused on the definition of the word "may" to mean "permissive, not mandatory" and cited three prior cases in which the Court had reviewed the validity of agency rules under similar circumstances. The Court found that it could exercise subject matter jurisdiction over Mr. Cover's appeal.

Employers should know that all full-time and part-time employees are likely eligible for reinstatement to their job within 18 months of a compensable workplace injury. Some qualifications still apply, and your labor and employment or workers' compensation attorney can likely provide helpful counsel on this issue.

**Bernard & Merrill represents employers, insurance carriers, and third-party administrators in workers' compensation cases, civil litigation, and insurance defense. The firm has offices in Manchester, NH, and represents clients across the state of New Hampshire.**