When an employee is injured in a motor vehicle accident while working, there is frequently confusion as to whether a workers’ compensation claim should be filed. Some employers believe that it should be handled through auto insurance. However, the employees’ injuries must be handled like any other employee injury in the workplace, an Employer’s First Report of Injury must be promptly filed with NHADA WCT, and the injured employee must seek treatment within the company’s managed care network. As in any workplace injury, a call to the NHADA WCT nurse case manager, Marta Silakka, immediately after the injury occurs will ensure that the injured employee receives the most appropriate medical attention possible. The purpose of workers’ compensation is to provide prompt payment of medical bills and disability benefits for employees who are injured in the workplace. 

When an employee is involved in a motor vehicle accident, no matter how minor is seems at the time, the police must be called to the scene and a police report should be filed. The police will investigate the cause of the accident and determine liability. This is crucial for NHADA to obtain reimbursement of payments made on the injured employee’s behalf from the responsible driver. 

When a motor vehicle accident occurs in the course of their employment and they sustain injuries, both a workers’ compensation claim and an auto insurance claim should be filed. If the police determine that the other driver is at fault, then the NHADA WCT member should put the responsible insurance carrier on notice of the damage to their vehicle and put the auto carrier on notice that their employee was injured and has sought medical attention. The auto carrier will then open a property damage claim to pay for the member’s damaged vehicle and a bodily injury claim to pay for the injured employee’s injuries and pain and suffering. Frequently, there are different adjusters assigned to each claim.

Auto liability cases can be long, drawn-out claims. The auto carrier generally will not make payment on a claim until medical treatment has been concluded, and the injured party has attained maximum medical improvement. At that point, they will negotiate a settlement with the injured employee or their attorney.

When the injured employee settles their claim with the auto insurance company for the driver responsible, they will be compensated for their medical bills, lost wages, pain and suffering, and possibly their spouse’s loss of consortium. Workers’ compensation would have already paid the medical bills and, when applicable, 60% of the lost wages relating to the auto accident, and therefore would have a lien against the auto settlement. The injured employee is required to pay back workers’ compensation for the payments that were made on their behalf. The NH Workers’ Compensation Statute, RSA 281-A:13, provides the workers’ compensation carrier or self-insured with this lien. If the injured employee does not pursue a claim against the responsible driver, then RSA 281-A:13 has a provision that allows the workers’ compensation carrier or self-insured to take over the claim to seek reimbursement directly from the auto carrier for payments they made on behalf of the injured employee. The workers’ compensation carrier can pursue the claim directly if the injured employee does not pursue a claim within nine months of the date of the accident.

If the injured employee retains an attorney, then RSA 281-A:13 requires that the workers’ compensation carrier waive at least one-third of their lien, as well as their equal share of the attorney’s expenses, as compensation to the attorney for resolving the case.

In the event that the responsible party is uninsured, then workers’ compensation would seek reimbursement directly from them. If the responsible party is unwilling to make payment, the workers’ compensation carrier or self-insured has the right to request suspension of the license and registration from the Director of Motor Vehicles, pursuant to Chapter 264 Accidents and Financial Responsibility, Motor Vehicles.

Not all auto accidents that occur when the employee is driving are covered by workers’ compensation. In order for an injury to be covered by workers’ compensation, it must arise out of and in the course of the employment. The incident must occur within the time and space of the employment, and it must arise out of a risk or hazard created by the employment. Commuting to and from work, whether in a company car or not, is generally not considered in the course of employment. However, when the employee arrives at the designated parking area at work, they become part of the course of their employment even before they technically punch in. If the employee deviates from the normal delivery route for a personal errand, and/or was under the influence of drugs or alcohol, and was involved in a motor vehicle accident, injuries sustained may not be covered by workers’ compensation.

Overall, the process works, although it may sound prolonged, cumbersome or confusing. The injured employee gets the medical attention they need, and it is paid promptly by workers’ compensation. They are promptly paid for their time out of work if the physician feels it is necessary, and generally, they recover and return to their normal lives. The responsible motorist, through their auto insurance, ultimately pays for the injured employee’s pain and suffering, and reimburses workers’ compensation for a portion of the payments of medical and disability benefits.