NH Supreme Court decision clarifies workers’ comp. death benefits

On September 12, the New Hampshire Supreme Court issued an opinion in Appeal of State of New Hampshire (Adjutant General) holding that the failure of an injured worker to challenge their own denied claim does not preclude that worker’s surviving spouse from later presenting an independent claim for death benefits, and that the claims are separate and distinct.

Attorney Jared O’Connor, partner at Shaheen & Gordon, P.A., argued on behalf of Kimberly Galimberti of Wolfeboro, as she sought New Hampshire workers’ compensation death benefits following the death of her husband, Michael Galimberti, from work-related cancer.

In February 2019, shortly after first seeking treatment for what would later be diagnosed as a rare bile duct cancer, Galimberti’s husband, a firefighter, filed a workers’ compensation claim that his employer denied. He declined to pursue the claim further and died of cancer less than a year later in January 2020.

At the time, Galimberti focused on a separate, non-workers’ compensation claim to prove that her husband’s death was a qualified line of duty death. After doing so, she then retained attorney O’Connor to file a workers’ compensation claim in January 2023, shortly before the three-year anniversary of her husband’s death. Her claim was swiftly denied on the grounds that her husband’s own denied claim was not appealed within 18 months of the initial denial in early 2019.

The case was then litigated to the New Hampshire Compensation Appeals Board. O’Connor presented the theory that Galimberti’s own date of injury was her husband’s date of death, as she could not file for death benefits beforehand, and that she had the right to make her own claim independent of her husband’s. The Appeals Board ruled in Galimberti’s favor, and the employer appealed the case to the Supreme Court. After full briefing and oral argument, the Court adopted O’Connor’s legal theory in full.

Upon receiving the decision, O’Connor gave this statement:

“This watershed decision is the culmination of years of work, and a personal highlight of a career spent fighting for the rights of injured first responders and their families. Mrs. Galimberti’s case embodies so many of the challenges and legal requirements that families of firefighters must navigate after the loss of a loved one in the line of duty. Even when a firefighter’s own claim is denied, this case upholds a spouse’s right to prove their own claim and buys them time to do so.”

— CONTRIBUTED TO NH BUSINESS REVIEW BY SHEEHAN PHINNEY