Notice in New Hampshire Workers’ Compensation in a Post Gamas World

As with most types of litigation, workers’ compensation claims are barred from advancing unless the opposing side – in this case the employer – is given notice of a potential claim. This purpose of this requirement is clear: the other party to litigation needs timely notice to defend against a potential claim.

NH RSA 281-A:19 requires notice to the employer within 2 years from the date of injury or within 2 years when the employee knows of – or should have known of – the injury and its possible relationship to employment. Allowing an injured worker to provide notice 2 years after learning of an injury allows a worker to recover when an injury does not immediately produce signs or symptoms. RSA 281-A:20 seems to require that notice be in writing and include information such as the name and address of the worker injured.

However, despite the plain language of the statute, the New Hampshire Supreme Court has held that notice need not be in writing to the employer. In Appeal of Gamas, the NH Supreme Court held that an employer was provided with actual notice of the injury at a deposition and such notice was sufficient for the purposes of the statute.

In Gamas, the employee – Mr. Gamas – was diagnosed with asbestosis in 2000. In 2004, Mr. Gamas was deposed as part of an unrelated civil suit with his employer. The employer’s Health and Safety Manager was present, and at this deposition, Mr. Gamas mentioned his exposure to asbestos at the workplace. In 2006, Mr. Gamas filed a claim predicated on his diagnosis of asbestosis in 2000, 6 years after his diagnosis and 6 years after he should have known of the injury and its possible relationship to his employment. The employer denied the workers’ compensation claim, noting that Mr. Gamas had failed to timely notify the employer pursuant to RSA 281-A:19. During the ensuing litigation, the Health and Safety manager later stated that he was “put on notice” of the claim at the deposition.

The New Hampshire Supreme Court heard the case and stated that as “a matter of longstanding practice, we adopt a construction favorable to the claimant when statutory language is ambiguous” , and held that actual notice to the Health and Safety manager was sufficient for the purposes of 281-A. While finding that actual notice of this form was acceptable for the purposes of the workers’ compensation statute, the Court ended its decision by stating that if “the legislature intended that written notice on a form prescribed by the commissioner be the exclusive means of acceptable notice, it is of course free to amend the statute.”

The legislature has not amended the statute and it is clear from the case law that the Court – and in turn, the Department of Labor – will allow alternative notice to the employer should it benefit an injured employee.

(i) The statute of limitations on filing a claim is another matter entirely: NH RSA 281-A:21-a requires a claim for workers’ compensation benefits be filed within 3 years of the date of injury or within 3 years of when the employee knows or should have known of the injury and its possible relationship to employment.
(ii) Appeal of Gamas, 158 N.H. 646, 650 (2009), citing Appeal of Hiscoe, 147 N.H. 233, 230 (2001).
(iii) Gamas, 650.