In Case No. 99-521, Appeal of Gary Wintle, the court on October 23, 2001, made the following order:

Motion for reconsideration is denied. The slip opinion dated July 26, 2001, is modified as follows.

1. The term "State employees" in the first sentence of the second full paragraph on page 2 of the slip opinion is deleted and replaced with the term "certain public employees" so that said paragraph as amended shall state:

On appeal, the petitioner argues that the board erred in (1) declining to rule that the provision in RSA chapter 277 that limits recovery of double compensation benefits to certain public employees should be struck down as violative of the petitioner’s State and federal constitutional rights, and (2) ruling that the petitioner otherwise failed to satisfy the requirements of RSA 281-A:33.

2. The quotation of RSA 281-A:33 on page 2 of the slip opinion, which begins with the words "Any employer who is liable" and concludes with "of such compensation . . . ." shall be deleted and replaced with the following quotation:

Double Compensation. Any employer who is liable for the compensation provided by any or all of RSA 281-A:26, 28, 31, or 32 shall, upon being found in violation of any provision of either or both RSA 277 and RSA 276-A, insofar as the latter chapter deals with prohibiting hazardous occupations for youth, and if there is recorded in the department a prior violation of the same kind or if the employer has failed to comply with written departmental recommendations applicable to a first violation within the reasonable period allowed, become liable for twice the amount of such compensation; provided, however, that if payment of compensation is secured pursuant to RSA 281-A:5, I, an employer and employer’s insurance carrier shall share equally the payment of compensation under this section.

3. The fifth full paragraph on page 2 of the slip opinion, which begins with the words "RSA chapter 277 provides, among other things" and concludes with "to State employers only." shall be deleted and replaced with the following:

RSA chapter 277 provides, among other things, that when dangerous conditions exist in a workplace, the employer has a duty to "provide and maintain such safeguards, safety devices, appliances and lighting facilities, and to do such other things as may be reasonably necessary and practicable to lessen the dangers of such employment." RSA 277:11 (1999). In 1985, RSA chapter 277 was amended to apply to "the State or any of its political subdivisions operating a place of employment" (State employers). See RSA 277:1-b (1999). Because a violation of RSA chapter 277 is a threshold element required to satisfy RSA 281-A:33 in cases not involving hazardous occupations for youth, the 1985 amendment of RSA 277:1-b effectively limited RSA 281-A:33 to State employers only.




Eileen Fox,

Date of clerk’s notice of decision: October 25, 2001