The New Hampshire Supreme Court recently published a decision concerning attorney’s fees under New Hampshire Administrative Rules, Lab 207.01, in the matter of Appeal of Katherine Streeter (issued December 13, 2016). The Court held that when an initial determination is made at the Department of labor level on the issue of causation, attorneys are only entitled to fees of “20% of the retroactive indemnity benefits payable out of the benefits received” pursuant to Lab Rule 207.01 (a)(1) and not Lab Rule 207.01(a)(4).
In November 2013, Streeter injured her left shoulder at work. In March 2014 she was taken out of work for two (2) weeks. The insurance carrier paid, without prejudice, the two (2) weeks of indemnity benefits. An MRI was performed which revealed “mild degenerative changes and mild tendonitis of the left shoulder.” As a result of the MRI, the carrier filed a Memo of Denial with the Department of Labor indicating that the mechanism of injury was not consistent with the MRI findings and denied “ongoing disability and medical at this time as not causally related to employment.” A Department of Labor hearing was requested based on the carrier’s denial. The Department of Labor determined that Streeter did sustain a compensable injury, awarded indemnity benefits and ordered payment of denied medical treatment.
Since medical bills were ordered paid as part of the determination, Streeter’s attorney requested additional fees based on his hourly rate. Streeter’s attorney argued the “carrier made a ‘de facto’ determination” that her injury was compensable and subsequently denied medical bills which were ordered paid, thereby invoking Lab Rule 207.01 (a)(4). The Department of Labor denied Streeter’s request for additional attorney fees and Streeter appealed that decision. The Compensation Appeals Board also denied Streeter’s request finding Lab Rule 207.01(a)(4) “applies only when the issue relates to medical bills and disability subsequent to the case being found compensable.” The Board reasoned that the medical bills and indemnity at issue were found compensable “when the Hearings Officer found them to be so.”
On appeal, the Court agreed with the Board’s reasoning and rejected Streeter’s contention that the carrier made a ‘de facto’ determination that the injury was compensable when it paid two (2) weeks of indemnity benefits. The Court distinguished prior case law cited by Streeter. The Court noted that prior case law dealt with carriers paying several years’ worth of indemnity benefits or lump sum settlements which constituted an agreement between the parties which has the same legal effect as an award made by the labor commissioner.
**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.**