Workers Compensation Cases

Workers' Compensation Cases

Appeal of Jamar d/b/a Dunkin Donuts | Appeal of Mikell | Appeal of Weaver | Appeal of Wingate

APPEAL OF JAMAR d/b/a DUNKIN DONUTS & a.

SUPREME COURT OF NEW HAMPSHIRE
145 N.H. 152
July 17, 2000

COUNSEL

  • Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael R. Mortimer on the brief and orally), for the petitioners.
  • Borofsky, Lewis & Amodeo-Vickery, P.A., of Manchester (Mark S. Gearreald and Stephen E. Borofsky on the brief, and Mr. Borofsky orally), for the respondent.

AUTHOR: NADEAU
OPINION

The petitioners, JAMAR d/b/a Dunkin Donuts and its workers' compensation insurance carrier, Liberty Mutual Insurance Company, appeal a 1997 decision by the New Hampshire Compensation Appeals Board (board) granting the respondent, Elizabeth Farley, a rehearing before the board. The petitioners concede that at the rehearing the board had sufficient evidence to support its finding that the respondent's repetitive use of a cream dispensing machine at work caused carpal tunnel syndrome in her right hand and wrist. Thus, the sole issue on appeal is whether the board had authority to grant a rehearing to review its initial conclusion regarding the nature of the respondent's injury. We affirm.

The respondent applied for workers' compensation benefits, which were denied by the petitioners. After a hearing before the department of labor, the hearing officer concluded that she was not entitled to workers' compensation benefits. She appealed to the board, see RSA 281-A:43, I(b) (1999), and was granted a hearing on March 15, 1996. At this hearing, the respondent argued, among other things, that her carpal tunnel syndrome was caused by repetitive use of the cream dispensing machine. Five months after the hearing, the board denied the respondent's appeal without addressing her repetitive-use argument. The board's decision stated only that the claimant had "failed to establish that her [carpal tunnel syndrome] was related to her slip and fall at work on December 23, 1993."

On August 23, 1996, the respondent timely moved for rehearing, see RSA 541:3 (1997), which the board denied on November 21, 1996. Four days after the supreme court thirty-day appeal period had expired, see RSA 281-A:43, I(c) (1999) and RSA 541:6 (1997), the respondent sent a letter to the department of labor expressing dissatisfaction with the board's decision and requesting that it reconsider its denial of her motion. The letter alleged that the board "simply failed to deal with the matter in controversy," due, in part, to the five months that had elapsed between the hearing and the decision. The letter also indicated that the respondent had not appealed the board's decision because of financial constraints.

On February 3, 1997, the board reversed its prior denial of the respondent's request for a rehearing. After the rehearing, the board found in favor of the respondent, reversing its prior decision. The petitioners unsuccessfully moved for a rehearing and filed the instant appeal.

The petitioners argue that the board erred by granting the rehearing because: (1) the respondent did not timely appeal, and thus, the board's earlier decision was final and binding; (2) the board violated the New Hampshire Department of Labor rules by granting the rehearing; (3) the board lacked jurisdiction to grant the rehearing; and (4) the board's earlier denial collaterally estopped the respondent from relitigating the causal relationship between her injury and her employment.

"We will overturn the board's decision only for errors of law, or if we are satisfied by a clear preponderance of the evidence before us that the order is unjust or unreasonable." Appeal of Wausau Ins. Cos., 143 N.H. 478, 480, 727 A.2d 988, 989 (1999) (quotation omitted).

Under the Workers' Compensation Law, unless a party appeals to the supreme court, the decision of the board shall become final thirty days after the application for a rehearing is denied. See RSA 281-A:43, II (1999 & Supp. 1999); RSA 541:6. "In view of the practical protective function of workers' compensation, the desirability of preserving a right to reopen for genuine mistake seems too self-evident for argument." 8 A. Larson & L. Larson, Larson's Workers' Compensation Law § 131.05[2][b], at 131-60 (2000). Consequently, the finality of RSA 281-A:43, II is not absolute. Rather, our legislature has included a provision in the Workers' Compensation Law - RSA 281-A:48 (1999) - that specifically serves to "preserv[e] a right to reopen for genuine mistake." Id.

RSA 281-A:48, I, provides that within a specified time period, any party at interest may petition the commissioner of labor (commissioner) to review a denial or an award of compensation on the basis of, among other things, a "mistake as to the nature or extent of the injury or disability."

In Johnson v. Aetna Life & Casualty Co., 131 N.H. 698, 702, 559 A.2d 838, 841 (1989) (decided under prior law), we held that while, generally, the commissioner has "no jurisdiction to modify an award it has previously rendered" if the award is final under RSA 281:37, II (predecessor to RSA 281-A:43, II), RSA 281:40 (predecessor to RSA 281-A:48) provides an "exception" to such finality. See also Laws 1988, 194:1 (legislature's intent in enacting RSA chapter 281-A was to preserve the content of RSA chapter 281). Thus, although the board's decision becomes final thirty days after the board denies the motion for rehearing, see RSA 281-A:43, II, we hold that RSA 281-A:48 provides an exception to the finality otherwise accorded board decisions. See Johnson, 131 N.H. at 702, 559 A.2d at 841.

While RSA 281-A:48 provides that a party may petition the commissioner to review a decision for mistake, a de novo appeal from an adverse decision by the commissioner can be taken to the board. See RSA 281-A:48, V, :42-a, I (1999). We consider whether RSA 281-A:48 provides the board with the authority to review a decision for mistake in the first instance when the mistake is alleged to have been committed by the board.

In this case, the board was certainly in the best position to review the respondent's petition because the petition alleged that the board had inadvertently failed to consider one of her arguments. Requiring that the commissioner first conduct a hearing and issue an order on the question of whether the board made a mistake before permitting review by the board itself would be inefficient.

In addition to furthering the purpose of judicial economy, allowing the board to review its own mistake in the first instance is consistent with the purpose of the Workers' Compensation Law, which is "to afford employees a sure remedy when they are injured on the job and to provide for a fair resolution of disputed claims." Buyer v. Abundant Life Farm, Inc., 127 N.H. 345, 348, 499 A.2d 1011, 1012 (1985) (decided under prior law). Moreover, we construe the Workers' Compensation Law liberally, "resolving all reasonable doubts in statutory construction in favor of the injured employee in order to give the broadest reasonable effect to its remedial purpose." Appeal of Rainville, 143 N.H. 624, 627, 732 A.2d 406, 410 (1999) (quotation omitted).

Finally, because the legislature cannot anticipate all of the problems incidental to the carrying out of administrative duties, administrative entities generally have the implied or incidental powers reasonably necessary to carry out the powers expressly granted to them. See 2 Am. Jur. 2d Administrative Law § 62, at 83-84 (1994). When the mistake is alleged to have been committed by the board, we conclude that RSA 281-A:48 provides the board with the limited authority to review its own decisions for mistakes in the first instance. Cf. State v. Haycock, 139 N.H. 610, 611, 660 A.2d 1115, 1115-16 (1995) (affirming the trial court's continuous discretionary powers to correct errors prior to final judgment notwithstanding that the motion to reconsider was untimely).

Although the board did not explain its decision to grant the rehearing, there can be little doubt that the board's intent was to consider whether it had made a mistake in its first decision. At the first board hearing, the respondent argued that her carpal tunnel syndrome was caused by the repetitive use of the cream dispensing machine. The board denied her appeal, stating that she had failed to establish a causal relationship between her carpal tunnel syndrome and a work fall, but not addressing her repetitive-use argument. In her initial request for a rehearing, the respondent complained that the claim rejected by the board was "not the claim that [she had] presented to the Board at all." Finally, in its letter granting the rehearing, the board stated that it "will consider the matter of the creamer pumping repetitive motion," suggesting that it had failed to do so at the first hearing.

RSA 281-A:48 does not grant the board unlimited authority to review mistakes, however. Instead, the potential mistake must be of the type set forth in the statute: "a mistake as to the nature or extent of the injury or disability." RSA 281-A:48, I. "It is clear that an allegation of mistake should not be allowed to become a back-door route to retrying a case because one party thinks he or she can make a better showing on the second attempt." Larson & Larson, supra at 131-57.

The respondent argues that the board made a mistake as to the nature or extent of the respondent's injury or disability because in its first decision the board limited its review to whether the respondent's carpal tunnel syndrome was caused by the trauma of a work fall. At the rehearing, however, the board considered the respondent's argument that her injury was caused by the repetitive use of the cream dispensing machine. The respondent argues that by initially focusing on the respondent's injury as traumatic carpal tunnel rather than repetitive-use carpal tunnel the board made a mistake as to the nature of the respondent's injury that resulted in the board's erroneous finding of no work-related injury. The petitioners argue that the board's mistake does not relate to the "nature" of the respondent's injury because the board's essential finding, that the respondent suffered from carpal tunnel syndrome, was correct and remained consistent in both of the board's decisions.

We conclude that the board's error in failing to identify the respondent's injury as repetitive-use carpal tunnel syndrome was a mistake as to the nature of the respondent's injury: that is, a mistake relating to the "essential character or constitution" or the "distinguishing qualities or properties" of the injury. See Webster's Third New International Dictionary 1507 (unabridged ed. 1961); cf. Wausau, 143 N.H. at 480, 727 A.2d at 989 (describing the nature of the injury as a cumulative trauma injury). The board had evidence before it that traumatic carpal tunnel syndrome and repetitive-use carpal tunnel syndrome have different physical manifestations, which are identifiable through an electro-diagnostic study. Accordingly, we conclude that traumatic carpal tunnel syndrome has different "properties" or a different "constitution" than repetitive-use carpal tunnel syndrome.

We conclude that the board's error constitutes a mistake as to the "nature" of the injury under RSA 281-A:48 which the board had authority to correct. We decline to reach the question of whether the board's error as to the cause of the respondent's injury, alone, would have been sufficient to warrant a rehearing under RSA 281-A:48.

The petitioners argue that this case is controlled by Magoon v. New England Power Co., 103 N.H. 366, 172 A.2d 366 (1961), and Petition of Ellis, 138 N.H. 159, 636 A.2d 62 (1993). We disagree. In Ellis, the issue was whether the party's petition for writ of certiorari was timely filed. Ellis, 138 N.H. at 159, 636 A.2d at 63. In the instant case, however, we consider the board's authority to reopen and correct its own decision under RSA 281-A:48, a statute that did not apply in Ellis. We find Magoon similarly inapplicable. We decided Magoon under the statutory provision governing new trials, not the predecessor to RSA 281-A:48. See Magoon, 103 N.H. at 368, 172 A.2d at 368. The petitioners' remaining arguments are premised on the assumption that the board's conduct was not statutorily authorized, and we find them without merit in light of the above opinion. See Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595, 596 (1993).

Affirmed.
BROCK, C.J., and HORTON and BRODERICK, JJ., did not sit; GRAY, J., retired superior court justice, and McHUGH and GROFF, JJ., superior court justices, sat by special assignment pursuant to RSA 490:3; all who sat concurred.

APPEAL OF HEIDI L. MIKELL

SUPREME COURT OF NEW HAMPSHIRE
145 N.H. 435
November 28, 2000

COUNSEL

  • Borofsky, Lewis & Amodeo-Vickery, P.A., of Newington (Mark S. Gearreald and Stephen E. Borofsky on the brief, and Mr. Gearreald orally), for the petitioner.
  • Devine, Millimet & Branch, P.A., of Manchester (Paul L. Salafia on the brief and orally), for the respondent.

AUTHOR: DALIANIS
OPINION

The petitioner, Heidi L. Mikell, appeals a decision of the New Hampshire Compensation Appeals Board awarding her benefits at the diminished earning capacity rate retroactive to October 11, 1996. We vacate and remand.

The petitioner was employed by the respondent, Autofair Toyota, on June 27, 1995, as an auto-reconditioner. For nine weeks she worked part-time. Starting on September 2, 1995, she began working full-time. On November 30, 1995, after working twelve weeks full-time, the petitioner slipped and fell, injuring her lower back.

The petitioner initially went to a chiropractor for treatment. She then sought treatment from her family physician, Dr. Gustavson, who advised that she cease work in December 1995. Early in January 1996, Dr. Gustavson approved her return to light duty work. The petitioner also consulted Dr. Levy, who prescribed physical therapy and light duty work restrictions. On January 11, 1996, the petitioner stopped working for the respondent entirely.

On January 22, 1996, the petitioner contacted Dr. Graf, who had treated her years earlier for an unrelated injury. Dr. Graf advised that she be taken out of work as of January 22. The petitioner also saw Dr. Polivy on February 9, 1996, for an independent medical examination. Dr. Polivy stated that the petitioner was capable of performing light duty work, with the limitation that she be able to alternate among sitting, standing, and walking.

On May 29, 1996, after examining the petitioner, Dr. Graf wrote to the respondent's general manager, stating that

[b]ased upon my most recent visit with [the petitioner] and also reflecting my knowledge of her condition of intervertebral disc herniation, I feel that she is not presently able to attempt employment, even on a part-time basis.

On October 11, 1996, in one of three decisions issued by the New Hampshire Department of Labor (DOL), a hearing officer determined that the petitioner failed to submit competent medical evidence that she was either temporarily totally disabled or residually disabled as a result of her fall on November 30, 1995. The hearing officer also found that the respondent had attempted to provide the petitioner with light duty work as suggested by Drs. Polivy and Levy but that the petitioner had decided not to return to work. Thus, the hearing officer concluded that the petitioner had "voluntarily withdrawn from work that fit within her limitations" and granted the respondent's insurance carrier permission to terminate the petitioner's temporary partial disability benefits of $71.79 per week, which had been based upon an average weekly wage of $202.90. See RSA 281-A:31 (1999). On June 19, 1997, the DOL ruled that RSA 281-A:15, I(a) (1999) was the correct method of calculating the petitioner's average weekly wage. In applying RSA 281-A:15, I(a), the hearing officer divided the petitioner's cumulative gross earnings of $4,261.00 by the twenty-one weeks that she had worked, for a gross average weekly wage of $202.90.

The petitioner appealed both decisions to the board. The board upheld the average weekly wage calculation of $202.90. The board, however, concluded that the petitioner was entitled to temporary partial disability benefits from the date of the injury. In reaching this decision, the board relied upon medical records of Drs. Graf and Levy, including Dr. Graf's May 29, 1996, letter. The board stated that it gave more weight to Dr. Graf's opinion because he had been the petitioner's primary treating physician.

Both parties requested clarification of the board's award of "temporary partial disability benefits." The petitioner also asked that

[p]ending clarification and any reconsideration in this matter, . . . the carrier be required to pay [the petitioner] at least the diminished earning capacity rate retroactive to October 11, 1996 [the date of the DOL decision terminating benefits] and prospectively, without prejudice to any party's position.

Pending the board's response, the petitioner filed a motion and a revised motion for rehearing. On December 9, 1998, the board issued a letter in which it stated:

After a careful review of the file and current correspondence, the Panel has decided to amend the September 18, 1998 decision to include the following: "The carrier shall pay the claimant benefits at the Diminished Earning Capacity Rate retroactive to October 11, 1996."

Additionally, the board denied the petitioner's motions for rehearing.

On appeal, the petitioner argues that the board erred by: (1) computing her average weekly wage under RSA 281-A:15, I(a); (2) denying her motion to compel wage schedules of comparable employees to help determine her average weekly wage under RSA 281-A:15, I(c) (1999); and (3) awarding her benefits at the diminished earning capacity rate.

"On appeal, we will uphold an order of the board unless it is erroneous as a matter of law or the petitioner has demonstrated that the order is unjust or unreasonable." Appeal of HCA Parkland Medical Ctr., 143 N.H. 92, 93, 719 A.2d 619, 621 (1998) (quotation and brackets omitted); see RSA 541:13 (1997).

The petitioner first contends that the board erred when it computed her average weekly wage under RSA 281-A:15, I(a), because she worked for the respondent for fewer than twenty-six weeks before being injured and because of other circumstances related to her employment.

SA 281-A:15 provides, in pertinent part:

I. Except as provided in paragraphs II and III and subject to RSA 281-A:28, 281-A:28-a and RSA 281-A:31-a, an average weekly wage shall be computed by using the method in subparagraph (a) or (b), or (c) that yields the result more favorable to the injured employee:

  • (a) By dividing the gross earnings of the injured employee in the service of the same employer during the preceding 26 weeks by that number of weeks; or
  • (b) By dividing the gross earnings of the injured employee in the service of the same employer during a period exceeding 26 weeks but not exceeding 52 weeks by the appropriate number of weeks.
  • (c) If, however, by reason of the shortness of time during which the employee has been in the employment of the employer or because of the nature or term of the employment, it is inequitable to compute the average weekly wage using the method in subparagraph (a) or (b), regard may be had to the rate of pay designated in the injured employee's agreement of employment or to the gross earnings of persons in the same grade employed at the same work by the same employer or, if there are no persons so employed, by persons of the same grade employed in the same class of employment in the same locality.

RSA 281-A:15, I (1999).

"This court is the final arbiter of the meaning of a statute, as expressed in the words of the statute itself. We interpret statutes not in isolation, but in the context of the overall statutory scheme. Although we give undefined language its plain and ordinary meaning, we must keep in mind the intent of the legislation, which is determined by examining the construction of the statute as a whole, and not simply by examining isolated words and phrases found therein." Appeal of HCA Parkland, 143 N.H. at 94, 719 A.2d at 621 (quotations and citations omitted). We "construe workers' compensation law liberally . . . resolv[ing] all reasonable doubts in favor of the employee." Appeal of Cote, 144 N.H. ___, ___, 737 A.2d 1114, 1117 (1999).

Construction of RSA 281-A:15, I, is made difficult by the confusing language in subparagraph (a). Subparagraph (a) requires the computation of an injured employee's average weekly wage by dividing the employee's gross earnings "during the preceding 26 weeks by that number of weeks." RSA 281-A:15, I(a) (emphasis added). The petitioner argues that as a matter of law the board was precluded from applying subparagraph (a) because she had not yet worked twenty-six weeks. The respondent counters that subparagraph (a) can apply to an employee who has worked fewer than twenty-six weeks by dividing the gross earnings of the employee during his or her employment by the number of weeks actually worked.

The petitioner's interpretation of subparagraph (a) would require an injured employee's gross earnings to be divided by twenty-six even if the employee has worked for the employer for fewer than twenty-six weeks. Although this interpretation is plausible, it is not the most reasonable because its practical implication is that subparagraph (a) would rarely, if ever, apply to an individual who worked fewer than twenty-six weeks. This is because, in almost all factual scenarios, dividing the individual's gross earnings by twenty-six, when the individual has worked fewer than twenty-six weeks, would be inequitable, requiring application of subparagraph (c).

While there may be more than one way to construe this language, "[w]e reject any strictly literal construction if it contravenes the legislature's intended purpose." Nashua Y.W.C.A. v. State, 134 N.H. 681, 684-85, 597 A.2d 535, 537 (1991). The most reasonable interpretation of "that number of weeks" is, as the respondent contends, the number of weeks the employee actually worked.

If the legislature intended subparagraph (c) to apply whenever an injured employee worked fewer than twenty-six weeks, it could have said so clearly. Additionally, it defies logic that the legislature would use the phrase "by reason of the shortness of time" in subparagraph (c) if it intended subparagraph (c) to apply all but automatically when an injured employee worked any amount of time less than twenty-six weeks.

It is more probable that the legislature intended subparagraph (a) to apply to an employee who has worked twenty-six weeks or fewer and to divide that employee's gross earnings by the amount of time actually worked. When considering the overall workers' compensation statutory scheme, the legislature could hardly have intended that the phrase "average weekly wage" not mean "average weekly wage" as that term is commonly understood.

Thus, the application of subparagraph (c) would be triggered only in those limited situations where subparagraph (a) is inequitable, instead of almost automatically, when an employee has worked fewer than twenty-six weeks.

Because we give substantial deference to the board's interpretation of the statute which it is charged with interpreting, see Littky v. Winchester School Dist., 129 N.H. 626, 629, 529 A.2d 399, 402 (1987), we interpret the phrase "that number of weeks" in subparagraph (a) to refer to the amount of time the petitioner actually worked. We reject the petitioner's argument that it was per se inequitable for the board to apply subparagraph (a) because she worked for the respondent for twenty-one weeks.

RSA 281-A:15, I, specifically directs the board, however, to compute benefits "by using the method in subparagraph (a) or (b), or (c) that yields the result more favorable to the injured employee." "When . . . more than one period is more favorable [to the employee], the [board] must use the most favorable period, i.e., that which produces the highest average weekly wage." Appeal of Gilbert, 142 N.H. 842, 844, 714 A.2d 216, 217 (1998).

Apparently, the board applied subparagraph (a) without considering whether doing so was inequitable in light of the nature of the petitioner's employment. This was error. Accordingly, we vacate and remand for the board to determine whether applying subparagraph (a) was inequitable because of the nature of the petitioner's employment. If the board so finds, then it should compute the petitioner's average weekly wage under subparagraph (c). See RSA 281-A:15, I.

The respondent contends that subparagraph (c) cannot apply because the respondent employs no similarly situated employees, an allegation that the petitioner disputes. Subparagraph (c), however, sets forth three factors that may be used to determine an injured employee's average weekly wage: (1) the rate of pay set forth in the employee's employment agreement; (2) the gross earnings of others in the same grade employed at the same work by the same employer; or (3) if no such persons exist, the gross earnings of persons employed in the same grade in the same class of employment in the same locality. See RSA 281-A:15, I(c). Thus, even assuming that no similar employee works for the respondent, the statute provides alternative means for determining the petitioner's average weekly wage.

Next, the petitioner contends that the board erred in denying her motion to compel discovery of comparable employees' earnings. In light of our ruling above, we vacate the board's ruling on the motion to compel.

Finally, the petitioner argues that the board erred in awarding her benefits at the diminished earning capacity rate retroactive to October 11, 1996.

The board initially ruled that the petitioner was "entitled to temporary partial disability benefits from the date of injury and continuing." Temporary partial disability benefits are suitable for an employee who is partially disabled but still able to work. See RSA 281-A:31; Appeal of Lalime, 141 N.H. 534, 538, 687 A.2d 994, 997 (1996). Upon the parties' requests for clarification, but without any explanation, the board amended its decision, ruling that the petitioner was entitled to benefits at the diminished earning capacity rate from October 11, 1996. N.H. Admin. Rules, Lab 510.03. We assume that the board, by amending its initial decision, concluded that the petitioner was entitled to temporary partial disability benefits from the date of her injury until October 11, 1996, after which time she was entitled to benefits at the diminished earning capacity rate.

The amended decision indicates that the board agreed with the DOL decision of October 11 that the petitioner was capable of performing at least light duty work. This conflicts with the findings of the board's initial decision, which relied upon Dr. Graf's letter stating that the petitioner was incapable of working at that time. The respondent contends that "there was substantial justification to give the . . . opinion by Dr. Graf no weight whatsoever." Nonetheless, the board did rely upon Dr. Graf's opinion and thus presumably found it credible.

Absent an explanation for the board's amended ruling, we are unable to review it. Accordingly, we vacate both the board's initial and amended rulings.

On remand the board shall support its ruling concerning the application of either subparagraph (a) or subparagraph (c) and its ruling concerning temporary disability benefits by findings of fact and rulings of law sufficient to permit meaningful judicial review. See Appeal of Kehoe, 139 N.H. 24, 27, 648 A.2d 472, 474 (1994).

Vacated and remanded.
NADEAU, J., concurred; GRAY, J., retired superior court justice, and McHUGH and GROFF, JJ., superior court justices, specially assigned under RSA 490:3, concurred.

APPEAL OF STEPHEN V. WEAVER, JR.

SUPREME COURT OF NEW HAMPSHIRE
Opinion Issued: November 14, 2003

COUNSEL

  • Borofsky, Amodeo-Vickery & Bandazian, P.A., of Manchester (Christopher A. Bandazian on the brief and orally), for the petitioner.
  • Preti, Flaherty, Beliveau, Pachios, & Haley, PLLC, of Concord (Nicole D. Spaur and Evan Hansen on the brief, and Mr. Hansen orally), for the respondent.

AUTHOR: NADEAU
OPINION

The petitioner, Stephen V. Weaver, appeals the decision of the New Hampshire Compensation Appeals Board (board) denying him benefits for an in-state injury because he had already received benefits under Maine's workers' compensation statutes. We reverse and remand.

The respondent, Land Rover of Scarborough, a Maine corporation, hired Weaver to work at a new car dealership it was constructing in Bedford, New Hampshire. Throughout his entire employment, Weaver worked exclusively at the Bedford dealership.

On December 28, 2000, Weaver injured his left knee while working at the construction site. Weaver immediately reported his injury to Land Rover, which reported the incident to its workers' compensation carrier. In August 2001, Weaver missed work to undergo knee surgery relating to his December injury. As a result of his absence, Land Rover filed a first report with the Maine Workers' Compensation Board and Weaver began receiving benefits under the Maine Workers' Compensation Act. Weaver was not notified of the report until October 3, 2001. Upon notification, Weaver informed Land Rover's workers' compensation carrier and the Maine Workers' Compensation Board that Land Rover had erroneously filed the claim in Maine. On December 7, 2001, Weaver was terminated for cause and his weekly benefits were discontinued, which Maine law allowed.

Weaver requested a hearing with the New Hampshire Department of Labor to review his claim. After the hearing officer concluded that New Hampshire had no jurisdiction to rule upon his compensation eligibility, Weaver appealed to the board. The board dismissed the appeal, ruling that although RSA 281-A:12 (1999) applies only to injuries incurred outside New Hampshire, the legislative intent of the statute precludes Weaver's claim. This appeal followed.

Weaver contends that RSA 281-A:12, entitled "Injuries Outside of the State," does not apply to injuries occurring within New Hampshire. Land Rover, on the other hand, argues that RSA 281-A:12, II, by its plain and unambiguous language, does not permit workers' compensation recovery where the injured party has received some benefits from another jurisdiction for the same injury. We agree with Weaver.

We will not set aside the board's decision, except for errors of law, unless Weaver has shown it by a clear preponderance of the evidence to be unjust or unreasonable. Appeal of Bergeron, 144 N.H. 681, 683 (2000); see RSA 541:13 (1997).

We are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. In the Matter of Breault & Breault, 149 N.H. 359, 361 (2003). We first examine the language of the statute, and where possible, ascribe the plain and ordinary meanings to the words used. Id. When a statute's language is plain and unambiguous, we need not examine its legislative history, and we refuse to consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute. Id. Furthermore, we interpret statutes in the context of the overall statutory scheme and not in isolation. Id.

RSA 281-A:12, entitled "Injuries Outside the State," provides:

I. If an employee is injured while employed elsewhere than in this state, and is injured under circumstances that would have entitled the employee or a dependent to workers' compensation under this chapter had such employee been injured in this state, then such employee or dependents of such employee shall be entitled to workers' compensation as provided in this chapter:

  • (a) If the employee or the employee's dependents release the employer from all liability under any other law;
  • (b) If the employer is engaged in business in this state;
  • (c) If the contract of employment was made in this state; and
  • (d) If the contract of employment was not expressly for service exclusively outside of this state.

II. However, recovery of damages in an action at law or recovery of workers' compensation under the law of any other state shall bar recovery of workers' compensation under the law of this state.

The board concluded that the legislative intent of RSA 281-A:12, II is to prevent an injured employee from recovering twice, under different state laws, for the same injury. Land Rover urges us to defer to the board's decision. While statutory construction by those charged with its administration is entitled to substantial deference, see N.H. Retirement System v. Sununu, 126 N.H. 104, 108 (1985), the interpretation of a statute is to be decided ultimately by this court. See Appeal of Cote, 144 N.H. 126, 129 (1999).

The title of a statute is "significant when considered in connection with . . . ambiguities inherent in its language." State v. Rosario, 148 N.H. 488, 491 (2002). To construe RSA 281-A:12, II without considering its title ignores the purpose of the provision. As the title suggests, the purpose of RSA 281-A:12 is to address injuries occurring outside of New Hampshire. Here, Weaver was injured in New Hampshire. Therefore, RSA 281-A:12 does not apply. Thus, the board erred when it inferred that the legislative intent of RSA 281-A:12, II is to prevent double recovery for in-state injuries.

Even if we were to ignore the title of the statute, the first line of RSA 281-A:12, I, makes clear that the injury must occur outside New Hampshire ("If an employee is injured while employed elsewhere than in this state . . . ."). Land Rover argues that the word "however" in RSA 281-A:12, II should be read apart from language in RSA 281-A:12, I. Proper statutory interpretation, however, requires us to read RSA 281-A:12, II in the context of the statutory scheme, not in isolation. See Breault, 149 N.H. at 361. Thus, RSA 281-A:12, II applies only when the injury occurred outside New Hampshire as required under RSA 281-A:12, I.

This position is consistent with our liberal interpretation of the Workers' Compensation Law. As a general rule, we resolve reasonable doubts in construing the Workers' Compensation Law in favor of the injured employee so as to provide the broadest reasonable effect to its remedial purpose of compensating injured employees. See Appeal of CNA Ins. Cos., 143 N.H. 270, 273 (1998); Appeal of Lalime, 141 N.H. 534, 537-38 (1996). Nothing in this case warrants deviation from this well-established policy.

Accordingly, we reverse the board's order dismissing the appeal and remand for a determination as to whether Weaver is entitled to benefits under New Hampshire law. We note that in his brief, Weaver represents that he does not seek to recover twice for his workers' compensation injury, stating that "[a]t no time has [he] contended that his medical providers should be paid twice for his surgery bills, nor has [he] claimed that he is entitled to payment of disability compensation for weeks that he has already been paid disability compensation."

Reversed and remanded.
BROCK, C.J., and BRODERICK, DALIANIS and DUGGAN, JJ., concurred.

APPEAL OF THOMAS WINGATE

No. 2001-400
SUPREME COURT OF NEW HAMPSHIRE
Opinion Issued: December 27, 2002

COUNSEL

  • Borofsky, Amodeo-Vickery & Bandazian, P.A., of Manchester (Mark S. Gearreald and Christopher Bandazian on the brief, and Mr. Gearreald orally), for the claimant.
  • Desmarais, Ewing & Johnston, P.L.L.C., of Manchester (Scott A. Ewing and Heather G. Silverstein on the brief, and Mr. Ewing orally), for the respondent.

AUTHOR: BRODERICK
OPINION

The claimant, Thomas Wingate, appeals a decision of the New Hampshire Compensation Appeals Board (board) denying his request for payment of a medical bill incurred more than a decade after his 1988 workplace injury. He argues that the respondent, Hansen Fox Company, Inc., should have been estopped from contesting the causal relationship between his back condition treated in 2000 and his 1988 compensable work injury. We vacate inpart, reverse in part and remand.

We recite the facts found by the board, presented in the record, or undisputed by the parties. In January 1988, the claimant injured his lower back while employed as a pipe fitter for the respondent. His workers' compensation claim was accepted and benefits were paid. The claimant was treated by Dr. James M. Shea, an orthopedic physician, who diagnosed a &quotcentral bulging or herniation of a mild to moderate degree at L5-S1." The claimant participated in physical therapy for three months and took disability leave from work in 1988 and 1989. Dr. Shea recommended that he perform daily back exercises and use a back support in his car. The doctor also prescribed pain medication.

The claimant was last examined by Dr. Shea in 1990. Thereafter, he experienced low back pain several times per year, for which he took a prescribed pain medication. Dr. Shea last renewed the claimant's prescription in August 1996. After Dr. Shea retired, the claimant was treated by Dr. Michael J. O'Connell. In February 1999, Dr. O'Connell concluded that the claimant suffered from "[d]egenerative L5-S1 disc disease with chronic recurrent lower back pain."

When the respondent's insurance carrier denied payment for Dr. O'Connell's 1999 bill, the claimant requested a hearing before the New Hampshire Department of Labor (DOL) pursuant to RSA 281-A:23 (1999). While his hearing request was pending, the claimant suffered another episode of back pain and, in early March 2000, he saw Dr. Louis Candito, who diagnosed "[d]egenerative disc disease lumbar spine."

In late March, the DOL conducted a hearing to determine the respondent's obligation to pay Dr. O'Connell's medical bill. It found that the bill was the employer's responsibility because Dr. O'Connell's treatment was a consequence of "[the claimant's] recurring lower back problem stemming from the 1988 work injury." It ruled that the claimant had met his burden of proof by demonstrating that the bill was "causally related, reasonable, and necessary treatment for [his] lower back condition." The respondent took no appeal from this decision.

The respondent subsequently refused to pay Dr. Candito's bill, again contending that the claimant's back condition, for which he sought treatment, was not caused by the 1988 work injury. The claimant requested a hearing before the DOL, which found the bill compensable, reasoning that "the claimant has suffered no new injury since January 8, 1988, that his back condition has never stabilized, and that Dr. Candito found the claimant's condition causally related to the original injury." The respondent appealed to the board.

Prior to the hearing before the board, the claimant filed a motion for summary judgment asserting that the earlier unappealed decision of the hearing officer concerning Dr. O'Connell's 1999 bill estopped the respondent from disputing the causal relationship between that same back condition treated by Dr. Candito in 2000 and the 1988 work injury. The board denied the motion and after a hearing, found Dr. Candito's bill unrelated to the original work injury treatment. It reasoned:

In coming to this conclusion, the Panel relies on the competent medical evidence of Dr. O'Connell and Dr. Candito, two treating physicians of the claimant. In both doctors' reports, they state that the claimant's current problems are degenerative in nature and they do not relate the claimant's injury in 1988 to his current condition. Further, the Panel is troubled by the fact that the claimant had failed to treat with any physician for a period of approximately eight or nine years. The claimant's motion for reconsideration was denied, and this appeal followed.

The claimant argues that the respondent should not have been allowed to relitigate the causal relationship between his 1988 work injury and his back treatment by Dr. Candito in March 2000 because the DOL had previously ruled compensable Dr. O'Connell's 1999 bill for treatment involving the same degenerative condition. He contends that in the earlier proceeding involving O'Connell's bill, the respondent fully contested the causal relationship between his back condition and the 1988 work injury, and failed to appeal the DOL's adverse ruling. Because the respondent offered no evidence of a superseding injury involving his back since Dr. O'Connell's 1999 treatment, the claimant argues that the board erred as a matter of law in considering the causal relationship between his back condition treated in 2000 by Dr. Candito and his 1988 work injury.

"We will [not] overturn the board's decision [unless we find] errors of law, or if we are satisfied by a clear preponderance of the evidence before us that the order is unjust or unreasonable." Appeal of Jamar, 145 N.H. 152, 154 (2000). The issue of whether the respondent should have been collaterally estopped from litigating causation is a matter of law, Farm Family Mut. Ins. Co. v. Peck, 143 N.H. 603, 605 (1999), that we review de novo, Byblos Corp. v. Salem Farm Realty Trust, 141 N.H. 726, 729 (1997).

This case involves the respondent's responsibility to pay Dr. Candito's bill for treating the claimant's back condition as it existed in March 2000. Under RSA 281-A:23, I:

An employer subject to this chapter, or the employer's insurance carrier, shall furnish or cause to be furnished to an injured employee reasonable medical, surgical, and hospital services, remedial care, nursing, medicines, and mechanical and surgical aids for such period as the nature of the injury may require.

"Thus, an employer has a continuing obligation to provide or to pay for medical, hospital, and remedial care for as long as is required by an injured employee's condition where it bears liability for the initial injury that necessitated the subsequent health care." Appeal of Bergeron, 144 N.H. 681, 684 (2000) (quotation omitted). The injured employee bears the burden of proving that the subsequent medical treatment is reasonable and required as a result of the injury. Appeal of Levesque, 136 N.H. 211, 214 (1992). A claimant is entitled to compensation for medical treatment only so long as the condition or disability requiring the treatment is causally related to the initial compensable injury. See Appeal of Sutton, 141 N.H. 348, 350 (1996); cf. Appeal of Hiscoe, 147 N.H. 223, 231 (2001).

The board denied coverage for Dr. Candito's medical bill, ruling not only that the claimant's back condition was not causally related to his 1988 work injury, but also that the bill was not reasonable or necessary. Ordinarily, the latter grounds for rejecting the bill would be sufficient. The only issue properly before the board, however, was causation. In the respondent's denial letter regarding Candito's bill, it solely contested the causal relationship between the treatment underlying the medical bill and the 1988 work injury. There is no evidence on the record before us that the respondent presented any other issue to the DOL. Indeed, in its decision, the DOL rendered specific findings on causation and offered no discussion on the reasonableness or necessity of Candito's bill, and no other document involving the DOL proceeding is before us. Finally, during the hearing before the board, the respondent did not dispute the reasonableness or necessity of Candito's bill. Accordingly, we vacate the board's ruling concerning the reasonableness and necessity of Dr. Candito's bill, and turn to the propriety of its causation ruling.

The doctrine of collateral estoppel precludes parties, or those in privity with them, from relitigating in a subsequent action any issue that was actually litigated in a prior proceeding where they were also parties. Appeal of Manchester Transit Auth., 146 N.H. 454, 461 (2001). For collateral estoppel to apply, "the issue subject to estoppel must be identical in each action, the first action must have resolved the issue finally on the merits, and the party to be estopped must have appeared in the first action, or have been in privity with someone who did." Simpson v. Calivas, 139 N.H. 1, 7 (1994) (quotation omitted). "Further, the party to be estopped must have had a full and fair opportunity to litigate the issue, and the finding must have been essential to the first judgment." Id. (citation omitted).

The identity of parties and finality of judgment components of estoppel are easily satisfied in this case. See RSA 281-A:43, I(b) (1999) (party has thirty days from decision of DOL to appeal to board). The parties dispute, however, whether the claimant satisfied his burden to prove that the causation issue related to the 2000 medical bill was identical to the causation issue determined in connection with the 1999 medical bill. See Appeal of Hooker, 142 N.H. 40, 44 (1997) (party asserting estoppel bears burden of proof). To resolve this dispute, we must first determine whether the causation issue that was actually litigated in relation to the 1999 bill was essential to the DOL's ruling, and compare it to the causation issue disputed in relation to the 2000 bill.

The DOL found that the claimant treated with Dr. O'Connell "for a recurring lower back problem stemming from the 1988 work injury," and that "the claimant met his burden of proof that the medical bill submitted . . . [was] causally related, reasonable, and necessary treatment for the claimant's lower back condition."

We conclude that the respondent actually litigated and the DOL necessarily decided the causal relationship between the claimant's 1988 work injury and his 1999 back condition diagnosed and treated by Dr. O'Connell. The respondent disputed causation by asserting that the claimant had not undergone treatment for ten years prior to his visit with Dr. O'Connell and that he must have suffered a new injury in the interim. The DOL rejected this argument, and the respondent makes no assertion that it was deprived of an opportunity to fully and fairly litigate the causal relationship between the degenerative disc disease diagnosed by Dr. O'Connell and the 1988 work injury.

Further, the DOL's ruling that the claimant's "recurring lower back problem stemm[ed] from the 1988 work injury" necessarily related Dr. O'Connell's diagnosis of "degenerative L5-S1 disc disease" to the initial compensable injury. In its factual findings, the DOL referenced the 1988 work injury and medical test showing a "bulging or herniation" at the L5-S1 spinal area. It found that when the claimant last saw Dr. Shea in 1990, his herniated disc condition was considered "under control" but that he continued to obtain prescriptions for pain relief from Dr. Shea's office throughout the 1990s. It noted Dr. O'Connell's diagnosis of "degenerative L5-S1 disc disease with chronic recurrent lower back pain" and cited no other source for the claimant's back problem. It also specifically found that "[t]here is no evidence that the claimant has ever suffered a new injury and no evidence that his symptoms have ever resolved except for brief periods." Because an employer, and its carrier, are not responsible for subsequent health care precipitated by a disability or condition unrelated to the job injury, see Appeal of Sutton, 141 N.H. at 350-51, the causal relationship between the claimant's diagnosed degenerative condition with recurring back pain and the 1988 work injury was essential to the DOL's ruling. Therefore, the doctrine of collateral estoppel precludes the respondent from relitigating that issue.

For the DOL's causation ruling concerning Dr. O'Connell's 1999 bill to have a preclusive effect upon the proceeding involving Dr. Candito's 2000 bill, however, the same back condition must have been treated by Dr. Candito. See Appeal of Hooker, 142 N.H. at 44. Thus, we next consider the nature of the claimant's back condition diagnosed by Dr. Candito.

Dr. Candito reviewed the same medical history as outlined by the DOL when it ruled upon Dr. O'Connell's bill. Dr. Candito noted the 1988 work injury, the 1988 medical test indicating that the claimant suffered a central bulging of a mild to moderate degree at the L5-S1 level, and his periodic episodes of back pain occurring for more than a decade following his work injury. Ultimately, Dr. Candito diagnosed the claimant as suffering from "[d]egenerative disc disease lumbar spine," and recommended that the claimant take steps "to help prevent episodes of recurrence." A workers' compensation medical form signed by Dr. Candito refers to his diagnosis as, in part, "[d]egen[erative] disc disease L5-S1."

While worded slightly differently than Dr. O'Connell's diagnosis of "degenerative L5-S1 disc disease with chronic recurrent lower back pain," the record and the board's findings establish that the two doctors' diagnoses are identical in substance. Dr. Candito noted that the back pain precipitating his examination occurred "spontaneously," and made no mention of any separate event or independent source causing the claimant's symptoms. Further, the board determined that both O'Connell and Candito described the claimant's back problem as "degenerative in nature," and made no distinction between the two doctors' diagnoses. While an independent medical examiner, Dr. David Publow, opined that the claimant has an "underlying degenerative disc disease, possibly with an additional mild congenital malformation of the lower lumbar spine" which was not caused by the 1988 work event, and that his back problems, as recorded by Drs. O'Connell and Candito, were not related to the 1988 work event, he did not differentiate the claimant's back condition as treated by both physicians. Indeed, the board expressly found that Dr. Publow "[did] not distinguish between Claimant's compensable degenerative L5-S1 disc disease [evaluated by Dr. O'Connell] and [his] degenerative L5-S1 disc disease when he saw Dr. Candito [in March 2000]." There is no evidence in the record indicating that the claimant's back condition treated by Dr. Candito differed from the condition diagnosed by Dr. O'Connell which the DOL found causally related to the 1988 work injury. The claimant testified without contest before the board that between doctor visits, he did not incur any new injury or exertion causing a problem to his back, and the respondent made no claim that the 2000 back condition resulted from an independent cause. See Appeal of Bergeron, 144 N.H. at 684. While the board stated that Drs. O'Connell and Candito did not "relate the claimant's injury in 1988 to his current [degenerative disc disease] condition," the DOL conclusively established this causal connection concerning Dr. O'Connell's diagnosis, and the board was not at liberty to review this unappealed decision. Further, the board's statement that it was "troubled by the fact that the claimant had failed to treat with any physician for a period of approximately eight or nine years" (between treatment with Dr. Shea in 1990 and with Dr. O'Connell in 1999), standing alone, cannot serve as a basis for distinguishing the claimant's 1999 and 2000 back conditions. See Id. at 686.

Finally, the existence of the independent medical examiner's report opining that the claimant's degenerative disc disease was not caused by the 1988 work event does not create an opportunity for the respondent to relitigate an issue finally determined by a DOL hearing officer in a prior proceeding. Its opportunity to contest the relationship between the claimant's degenerative disc disease and the 1988 work injury, through an independent medical examiner or otherwise, occurred in connection with Dr. O'Connell's 1999 bill, when the DOL hearing officer heard the issue and the respondent had the opportunity to appeal de novo to the board. See Appeal of Levesque, 136 N.H. at 214 (appeals to board are heard de novo).

Therefore, we conclude that the record establishes that the claimant suffered from the same back condition in 2000 when he treated with Dr. Candito as the DOL found he suffered in 1999 when he saw Dr. O'Connell. Accordingly, the board erred as a matter of law in permitting the respondent to relitigate whether the claimant's degenerative disc disease was causally related to his 1988 work injury.

Vacated in part; reversed in part; and remanded.
BROCK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ., concurred.