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On May 22, 2020, the New Hampshire Attorney General issued an Opinion in response to two (2) questions raised by the Governor’s Economic Re-Opening Task Force arising from the concerns of businesses regarding their potential liability to employees who contract COVID-19. The questions were: (1) Does State law provide liability protection for employers for employee personal injury claims?; and (2) Does State law limit an employee’s ability to seek workers’ compensation benefits for illnesses like COVID-19?
The Attorney General correctly answered the first question, explaining that “the workers’ compensation system provides employees with lost wages and medical benefits without regard to individualized assessment of fault in exchange for insulating employers from tortious actions.” In other words, New Hampshire law includes workers’ compensation exclusivity provisions creating a “trade-off” under which an employee who suffers a workplace injury is generally entitled to workers’ compensation benefits regardless of whether the employee bears fault for the injury, but in exchange for this entitlement to disability and medical benefits under the workers’ compensation laws, the employee forfeits any right to bring any personal injury lawsuit against the employee’s employer.
In the context of COVID-19, the workers’ compensation exclusivity law means that an employee who contracts COVID-19 cannot sue his employer. Workers’ compensation benefits constitute the employee’s sole remedy.
The Attorney General’s answer to the second question, however, misstates New Hampshire law, in our view. Said the Attorney General, “workers’ compensation benefits are limited to instances when an employee determinatively demonstrates that the illness resulted from the risks of employment.” This standard as articulated by the Attorney General is more exacting than the standard pronounced by the New Hampshire Supreme Court. An employee may recover workers’ compensation benefits for an injury that arises out of and in the course of the injured worker’s employment.
“To make out a claim for workers’ compensation benefits, the [injured employee] must prove both legal and medical causation by a preponderance of the evidence,” the New Hampshire Supreme Court held in a 1999 decision, Appeal of Walker. “Preponderance of the evidence” does not mean “determinatively.” “Preponderance of the evidence” means “more probably than not.” An employee need not demonstrate conclusively that his injury is work-related to qualify for workers’ compensation benefits. The employee need only demonstrate that the injury is probably work-related.
If you need assistance with a workers’ compensation claim, you should contact an experienced workers’ compensation attorney such as Benjamin T. King. New Hampshire Magazine has ranked Attorney King one of the best attorneys in New Hampshire in representing injured employees in workers’ compensation claims, continuously since 2017. Please call (603) 288-1403 or fill out our online contact form.