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Bar Journal - March 1, 1999

Update on Workers' Compensation Law

By:
 

The June 1998 edition of the New Hampshire Bar Journal1 included my article entitled Everything You Wanted to Know (But Were Afraid to Ask) About Presenting a Case Before the Workers' Compensation Appeals Board. Since the publication of that article, the Supreme Court has issued several decisions involving workers' compensation law, most of which impact upon practice before the workers' compensation appeals board (WCAB). This article is an update through Appeal of Roger Filion (decided January 15, 1999).

I. SCOPE OF REVIEW BY WCAB

The WCAB panel's de novo review of the hearing's officer's decision is limited to issues raised in the proceedings being appealed.2 In Appeal of Staniels,3 the Court clarified the scope of the WCAB's review, and limited it to the claimant's condition on the date of the hearing before the hearing officer.

In Staniels, the claimant injured his back on May 20, 1991, while working for his employer. A hearing was held before a hearing officer, and, in December 1994, a decision was rendered finding that the claimant was no longer totally disabled. The hearings officer found the claimant cooperated with vocational rehabilitation, but that he lacked motivation to improve his vocational problems. Therefore, the claimant was not entitled to continuing vocational rehabilitation assistance. The decision ordered the carrier to pay the claimant's medical bills. Both parties appealed to the WCAB.

The WCAB held a de novo hearing in March 1996. At that hearing, the claimant presented evidence of a March 1995 surgery. In response to the carrier's objection, the board limited its consideration of the surgery to the claimant's condition as of December, 1994.

The claimant appealed to the Supreme Court, arguing that the extent of the claimant's disability, including his current medical condition, was the dispositive issue on appeal before the board.

The Supreme Court disagreed. A department of labor hearing officer's decision, the court held, is "an adjudication as to the condition of the injured [employee] at the time it was entered,"4 not a "judgment as to the claimant's future condition."5 The Court found that the issue decided by the department of labor hearing officer and appealed to the board was the claimant's condition as of December 1994, the date of the hearing before the department of labor. The Court held that the WCAB correctly considered the 1995 surgery to be relevant only to that issue, and found that any change that may have resulted in the claimant's condition as a result of the surgery could possibly constitute grounds for filing a new request for hearing with the department of labor.

Therefore, for example, an independent medical examination (IME) that is performed after the hearing before a hearing officer and submitted to the WCAB panel on appeal may still be relevant, but it will only be relevant as to the condition of the claimant as of the date of the hearing before the hearing officer.

II. NOTICE TO EMPLOYER AND STATUTE OF LIMITATIONS ISSUES

A. Notice to Employer

In my 1998 article, I cited various provisions of the workers' compensation statute that address the employee's responsibility to notify the employer about the existence of a claim. The Supreme Court has issued decisions that may impact these notice provisions.

In Appeal of Brown,6 the Supreme Court held that a nine-year delay between an injury and the filing of a first report of injury did not bar the claimant from seeking benefits. In Brown, the claimant worked as a laborer at the construction of the Seabrook Nuclear Power Plant. He injured his arm on January 13, 1982. Two days later, when the pain did not subside, he notified his foremen, who told him to report the injury to the on-site nurse. He completed a minor injury report but did not complete a first report of injury form. He saw a doctor, who recommended surgery, but the claimant refused surgery and continued to work at Seabrook. The claimant did not seek any further treatment until 1991.

In October 1991, Mr. Brown filed a notice of injury, which was denied by the carrier, Commercial Union. The department of labor denied the claim on the basis that the claimant had failed to give his employer timely notice. The WCAB also denied the claim, finding that while the carrier technically received notice (because the employer had the claimant complete the minor injury report), the notice it received was defective (because the insurance company had not received actual notice of the injury). The board concluded therefore that the insurer was prejudiced by the nine-year delay between the injury and the filing of the notice of injury.

On December 14, 1994, in an unpublished opinion, the Supreme Court reversed the WCAB, because there had been no evidence presented to the board that there had been any prejudice to the insurer, and it remanded the case to the WCAB to determine whether there had been any prejudice to the insurer.

Although the WCAB on remand detailed its finding of prejudice, in its November 4, 1998 decision, the Supreme Court determined that the employer, and, by extension, the carrier, failed to follow established workers' compensation law on reporting injuries, and that it could not claim prejudice.

The court found that the reporting method developed by the employer "was in direct conflict with the then-existing statute that required employers to file a first report of injury with the department of labor within five days of the accident."7 The court also impugned the department of labor, stating that this unlawful method of reporting workplace injuries had been developed "apparently with the blessing of the department of labor..."8

The court held that the employer's failure to file a first report of injury (which meant that its carrier was never put on notice of the injured employee's claim) could not be a basis for establishing prejudice to the carrier, and stated "[w]e find that it is unreasonable as a matter of law for the respondent now to claim that it was prejudiced by lack of notice under a reporting system established for the respondent's convenience."9

B. Statute of Limitations in Cumulative Trauma Cases

In my 1998 article, I analyzed the Supreme Court's holding in Appeal of Briggs,10 one of the most cited Supreme Court decisions on cumulative trauma, because in that case the Supreme Court held that "when the claimant is exposed to cumulative trauma resulting in disability, the employer at the time the disability arises bears the burden of any workers' benefits owing."11 In the Briggs case, the issue was which of several carriers of employers would be responsible for the cumulative trauma injury.

The Supreme Court has revisited this issue, and extended the scope of that statement in Appeal of Theresa Rhuland.12 In Rhuland, the Rockingham County Nursing Home employed the claimant as a certified nursing assistant. She suffered pain in her back and shoulder, resulting in injuries in 1990 and 1991. In August 1994, she was unable to return to work and she filed a claim for benefits.

The carrier denied her request for benefits, and she requested a hearing. The department of labor denied her claim that she suffered a new injury or that she suffered a recurrence of earlier work-related injuries. The claimant appealed to the WCAB, which ruled that the claimant suffered from work-related cumulative trauma, basing its decision on the report from an independent medical examiner. The report found that the claimant's condition arose from trauma incurred in the course of work in February 1990, which she re-aggravated by a second injury in 1991.

Notwithstanding this decision, the carrier refused to pay benefits. Noting the board's finding that the injury stemmed from a February 1990 work injury, the carrier reasoned that because the request for hearing was not filed until September 1994, the four-year statute of limitations in RSA 281-A: 48 had expired, and, therefore, it had no obligation to pay disability benefits.

When the carrier refused to pay, the claimant asked the department of labor to order the carrier to pay her benefits pursuant to the WCAB's decision. The department of labor, without holding a hearing, issued a decision ratifying the carrier's position, a result with which, according to the department of labor's decision, the WCAB concurred. After an unsuccessful motion for rehearing, the claimant appealed to the Supreme Court.

The Supreme Court reversed the decision that the employee's claim was time-barred. The court, quoting its decision in Briggs, said:

We have stated in workers' compensation cases that cumulative trauma does not become disabling until the injured worker is unable to continue working... Specifically, in Appeal of Briggs, we noted: [c]umulative trauma...does not result in injury under New Hampshire law until the employee is unable to continue working. The same rule applies where the claimant has a pre- existing condition not caused, but rather aggravated or exacerbated, by cumulative work-related activities...13

The WCAB's May 1996 decision, the court said, concluded that the petitioner suffered from cumulative trauma arising out of and in the course of her employment, entitling her to temporary total disability benefits from August 1994, the date the cumulative trauma became disabling.

The Supreme Court held that the four-year filing period began to run as of August 1994, when the petitioner's cumulative trauma became disabling. Because the petitioner filed her claim within four years of August 1994, the court rejected the carrier's argument that the claim was time-barred.

Therefore, the inquiry in cumulative trauma cases occurs for statute of limitations purposes when the employee's cumulative trauma becomes disabling, i.e., when the employee is unable to continue working because of the cumulative trauma. The court left unanswered the question whether a carrier is responsible for reimbursement of medical expenses incurred by a claimant for a cumulative trauma injury when that claimant is still able to work.

III. WHAT IS THE CLAIMANT'S AVERAGE WEEKLY WAGE?

A. Concurrent Employment

RSA 281-A: 15, III provides that when an employee is employed as of the date of injury concurrently "by two or more employers subject to this chapter[,]" the claimant's average weekly wage is to be computed on the basis of the wages received from all employers." In my 1998 article, I referred to a case then pending before the Supreme Court, Appeal of HCA Parkland Medical Center.14 The issue in that case was whether a claimant who had two different employers (one in Massachusetts) was entitled to include both employer's earnings in determining his average weekly wage15.

The Supreme Court clarified the narrow issue of out-of-state concurrent earnings when it issued its decision on October 14, 1998. It held that out-of-state employers are not subject to our workers' compensation law, and, therefore, wages earned by a claimant working for an out-of-state employer are ordinarily not included in determining the claimant's average weekly wage.

HCA Parkland Medical Center (Parkland) is located in Derry, New Hampshire. In October 1993, while working for Parkland, the claimant, David Graves, suffered a disabling accident. At that time, Mr. Graves held a second job as a press operator for Matheson Higgins Congress Press (Matheson Higgins), which is located in Woburn, Massachusetts. While the company conducted business in New Hampshire, it had no office in this state, and it was undisputed that the claimant did no business for the Massachusetts employer in New Hampshire.

For several months after the accident, Parkland's carrier paid the claimant at a rate based on his combined earnings at both employers. In 1995, Parkland requested permission from the department of labor to reduce the benefits to an amount based upon earnings at Parkland only. The department of labor granted Parkland permission, after which the claimant requested a hearing. The hearings officer agreed that only Parkland's earnings should be used to determine the claimant's average weekly wage, and the claimant appealed to the WCAB.

In a two-to-one decision, the WCAB held that the claimant was entitled to compensation based upon earnings from both employers. Parkland appealed to the New Hampshire Supreme Court, which reversed the decision of the WCAB.

In its decision, the Supreme Court determined that Matheson Higgins was not an employer subject to the statute.16 The court stated use of the phrase "subject to this chapter" evinced an intent by the legislature to limit the employers and earnings that may be included in a concurrent earnings calculation.17 The court found that an interpretation in favor of the claimant would have been unreasonable, because it would in effect nullify the phrase "subject to this chapter" in RSA 281-A: 25, III.18 The court also noted that such an interpretation would have made Matheson Higgins, which may have conducted business in the state, subject to our workers' compensation laws even though the company had no business locations here and the claimant never did any work for Matheson Higgins in New Hampshire.

This decision does not foreclose the possibility that a claimant who is employed by an out-of-state company is entitled to concurrent earnings. An inquiry must still be made as to whether a particular employer is subject to the chapter (which will require a determination based upon the definition of "employer"19), whether an employer not subject to the chapter nonetheless elects to accept the provisions of the chapter20, or whether the claimant was working in New Hampshire for the claimant's out-of-state employer when the claimant was injured.

B. Other Issues Involving Average Weekly Wage

What employer-sponsored benefits should be included in calculating the claimant's average weekly wage? In Appeal of Gilbert,21 the claimant was injured on February 10, 1989. In 1995, he sought an increase in his average weekly wage calculation. The claimant argued that a twenty-two week period produced the most favorable average weekly wage, and that his gross wages during this period should include per diem payments that the claimant received. The claimant also argued that he received year-end bonuses and year-end profit sharing distributions, which, because they had been issued by the company and received by the claimant within the twenty-two week period, should also be included in their entirety in determining his average weekly wage.

The hearing officer rejected the claimant's economic model and the claimant appealed to the WCAB. The board held that to determine the claimant's gross wages, the per diem payments should be included. Rather than include an aggregate of the bonuses and profit sharing distributions in the selected twenty-two week period, the WCAB divided them pro-rata over fifty-two weeks and included the pro-rata share.

Although Appeal of Gilbert acknowledged the inclusion of these employer-sponsored benefits in determining the claimant's average weekly wage, and also acknowledged that the WCAB chose to divide the year-end bonus and profit sharing distribution pro-rata, the court did not comment on whether the law requires the inclusion of these benefits in calculating one's average weekly wage, or, whether they should be calculated on a pro-rata basis. Therefore, until the Supreme Court decides otherwise, attorneys should consider these types of benefits in preparing their economic models for determining the most favorable method of calculating the claimant's average weekly wage.22

IV. UNCONTRADICTED MEDICAL TESTIMONY

The Supreme Court has again clarified the law regarding uncontradicted testimony with respect to medical causation.

In Appeal of Lambrou,23 the Supreme Court recognized that the WCAB could decline to accept uncontradicted evidence. The court stated, "[s]imply because expert testimony is uncontradicted does not mean that the fact finder is bound to accept it."24 The Supreme Court stated that the WCAB panel may decline to accept uncontroverted evidence on the issue of medical causation, but it must state its reasons for doing so.25 The purpose of this requirement is "to provide a basis for presenting to [the Supreme Court] the questions of law arising on the facts found by the [panel]."26

Then, in Appeal of Briggs,27 the Supreme Court held that if the testimony involves medical causation, the board is "required to base its findings upon the medical evidence rather than solely upon its own lay opinion."28 In other words, the WCAB may reject uncontradicted medical testimony on the issue of medical causation, but its reasons for rejecting that testimony cannot be based upon its own lay opinion about the evidence. And, in Appeal of Chickering,29 the Supreme Court affirmed a decision of the WCAB to decline uncontradicted medical evidence. The Supreme Court found that the cross examination of the physician changed the uncontradicted medical evidence to conflicting evidence.30

Uncontradicted medical testimony was one of the issues raised in Appeal of Sharon Demeritt.31 In Demeritt, the claimant worked for Textron Automotive Interiors (Textron) in 1981, when she experienced cumulative trauma injuries, received workers' compensation benefits for a short time, then collected a lump sum benefit. She left Textron that same year.

In 1988, Ms. Demeritt worked for Moore Business Forms (Moore). During the course of her employment, her cumulative trauma symptoms returned and she received workers' compensation benefits from Moore. In 1990, she went to work for Urban Tree Service (Urban), where her cumulative trauma symptoms arose again. She filed for workers' compensation, but the carrier denied the claim. She then filed, pro se, a request for hearing, naming only Moore and Urban as defendants. In 1992, the hearing officer denied the claim, finding that her 1981 employer, Textron, was the responsible party.

A couple of years later, the claimant sought benefits from Textron, which denied the claim. A different hearing officer issued a decision in May, 1995, denying her claim, and noting that her failure to appeal the 1992 decision foreclosed any liability against the other two employers, Moore and Urban.

The claimant appealed the decision to the WCAB, and submitted two consistent medical reports, both concluding that the injury arose during her employment at Textron, and that it had never completely resolved. No other opinions were provided to the board. The WCAB issued a decision denying the claim, finding that Textron bore no responsibility because it was not the most recent employer that exposed the claimant to cumulative trauma.

The claimant appealed the decision to the Supreme Court, arguing that the WCAB erred because it had to accept the uncontroverted medical evidence, and because it failed to remedy the inconsistency among the 1992, 1995, and 1996 decisions.

On the issue of uncontroverted medical evidence the Supreme Court held that the board did not err in rejecting the uncontroverted opinions of the claimant's treating physicians:

[i]n evaluating expert medical testimony, the board is entitled to rely upon underlying or competing medical records provided that the board is not required to use medical expertise to interpret them [ ].

Here, the board detailed the claimant's medical history as recorded by her treating physicians. The records clearly document ongoing instances after 1981 demonstrating that the claimant suffered from medical ailments and symptoms associated with her most recent work activity. Medical expertise is not required to interpret these references.32

The court found that the board was within its authority in light of these records to conclude that the claimant failed to prove that Textron was responsible for her medical expenses, citing its holding in Briggs33 that the most recent employer exposing a claimant to cumulative trauma is responsible for the resulting disability. The court held that the board, in the exercise of its discretion, did not err by disregarding the opinions of the claimant's treating physicians.

V. MEDICAL EXPENSES AND REASONABLE TRAVEL COSTS

RSA 281-A: 23 places responsibility on an employer for reasonable and necessary medical expenses. Labor department regulations require that necessary travel (including meals and lodging) must also be paid by the employer.34

In Appeal of Murray,35 the court explained the application of these provisions. In Murray, the claimant hurt her back in 1990 while working for K-Mart. Surgery was performed in 1992, and, two years later, apparently on the advice of her physician, the claimant moved to Puerto Rico, where, she testified, she continued to experience back problems.

In 1995, she flew back to New Hampshire to consult with her surgeon, who suggested another surgery to ease her pain. The claimant testified that she could not locate a surgeon in Puerto Rico, so she had her original surgeon perform the surgery in New Hampshire.

While the carrier paid for the surgery, it denied the request to pay the travel expenses, arguing that they were not reasonable. The hearing officer ruled that the claimant was entitled to reimbursement for those expenses, but the WCAB ruled that the carrier was not responsible for the airfare and lodging expenses.

In analyzing the statute and the department regulations, the Supreme Court held that "a claimant who has established that a certain medical procedure is compensable must also establish that the requested travel was 'reasonable.'"36 To determine what is "reasonable," the court attempted to strike a balance that preserved the claimant's right to choose her own physician and the employer's right not to pay for unreasonably costly or unnecessary travel expenses.

The court held that "to establish that travel expenses are eligible for reimbursement, the claimant must present some evidence that there is a reasonable medical advantage to traveling to a certain physician or a lack of opportunity locally that justifies travel to a physician outside the area."37 The court stated that whether travel expenses are reasonable in some instances may not require expert medical testimony. The court remanded the matter to the WCAB for a hearing to determine whether the petitioner's travel expenses were reasonable under the test enumerated in the court's decision.

VI. LUMP SUM PAYMENTS AND PERMANENT IMPAIRMENT AWARDS

On January 15, 1999, the Supreme Court issued its decision in Appeal of Roger Filion,38 which may have far-reaching effect upon prior lump sum settlements.

The claimant in Filion suffered work-related injuries to his wrists and elbows in 1982. Subsequently, his physician determined that he reached an end point, and issued a permanency rating. The claimant and the carrier entered into a lump sum settlement agreement which precluded all future claims for total or partial disability, both temporary and permanent.

In 1993, the claimant requested a hearing because the carrier was refusing to pay for medical treatment for neck and shoulder pain. The hearings officer concluded that the neck and shoulder conditions were causally related to his 1982 injury. The carrier did not appeal this decision.

In 1994, the claimant's physician concluded that the claimant had reached an end point regarding the neck and shoulder conditions, and issued an opinion as to the claimant's permanent impairment. Based on the opinion, the claimant requested a hearing on the issue of a permanent impairment award. In 1995, the hearings officer denied a permanent impairment award, finding that the 1985 lump sum settlement included the claimant's neck and shoulder condition.

The claimant appealed to the WCAB, which also held that the 1985 lump sum settlement included all injuries, known or unknown, arising out of his 1982 injury. The claimant appealed his case to the Supreme Court.

The Supreme Court acknowledged that the workers' compensation law provides two types of benefits, disability benefits and permanent impairment awards.39 The court said that these benefits exist wholly independent of each other, and an injured worker may receive both.40

The court then analyzed the 1985 lump sum settlement agreement. In its analysis, the court determined that lump sum settlements are contracts, and should be governed by general contract principles. The court determined that the lump sum agreement specifically included disability benefits, but it was silent as to a permanent impairment award. Because the lump sum settlement was silent as to a permanent impairment award, the court reversed the board's finding that the agreement included permanent impairment of the claimant's neck and shoulder condition, and remanded the case to the board to decide whether the claimant was entitled to a permanent impairment award for his neck and shoulder injuries.

VII. MEDIA ACCESSIBILITY TO HEARING

On occasion a case comes before the WCAB that may be newsworthy, or that has attained some notoriety, and members of the media may request access to the hearing.

In Union Leader v. New Hampshire Housing Finance Authority, 41 the Supreme Court outlined the procedures that should be followed by a court or administrative agency on the issue of access by the media.

Part I, article 8 of the New Hampshire Constitution provides that the public's right to access to governmental proceedings and records shall not be unreasonably restricted. The right-to-know law provides that every citizen has the right to inspect all public records except as otherwise prohibited by statute or RSA 91-A: 5.42 This statute was enacted to ensure the greatest possible public access to the actions, discussions and records of all public bodies.43

The right-to-know law applies to any board or commission of any state agency or authority44, and the workers' compensation appeals board is subject to the law.45

The workers' compensation appeals board has broad discretion over the conduct of its proceedings, including its hearings.46 An agency must follow fair procedures and provide due process. In exercising its discretion, an agency must follow its own rules and regulations, and like a trial court, must also comply with the governing statute in both letter and spirit.47

Media access will ordinarily be handled on a case-by-case basis, with the WCAB balancing the claimant's constitutional due process and privacy rights with the media's rights of access.

RSA 91-A: 5, IV exempts from the provisions of the right-to-know statute "[r]ecords pertaining to ... medical ... and other files whose disclosure would constitute invasion of privacy." Ordinarily one of the issues before the panel will be causation, and the claimant's medical records will be part of the record. In light of the confidential nature of medical records, a panel will customarily order in these situations that no recording devices of any kind, other than the panel's tape recorder or the recording device of a party are allowed to be operated during the proceeding. The panel will also order that the media is not to be given a copy of the medical records absent the approval of the claimant.

VIII. ATTORNEYS FEES

RSA 281-A: 44, I authorizes the workers' compensation appeals board to award reasonable attorneys fees and costs under certain circumstances. The statute provides in relevant part as follows:

In any dispute over the amount of the benefit payable under this chapter which is appealed to the board or Supreme Court or both, the employee, if such employee prevails, shall be entitled to reasonable counsel fees and costs as approved by the board...

To determine an award of attorney's fees and costs in workers' compensation appeals, the WCAB uses a two-stage analysis. The panel must first determine whether the claimant "prevailed" and is therefore entitled to fees and costs under the statute. After a determination has been made that the claimant has prevailed, the panel must then deter mine the reasonableness of the fees and costs.

While this two-stage analysis has not changed, in two recent cases, Appeal of Staniels48 and Appeal of Brown,49 the New Hampshire Supreme Court has clarified the methods by which the WCAB is to make those determinations.

In Staniels, the claimant was injured in 1991. The carrier accepted the claim, and paid disability benefits until 1993, at which point it requested that the claimant's benefits be terminated pursuant to RSA 281-A: 48, because in the opinion of the carrier the claimant was no longer totally disabled, and because the claimant failed to cooperate with vocational rehabilitation. The claimant prevailed on both issues before the hearing officer, and the carrier did not appeal the decision to the WCAB.

One year later, in April 1994, the carrier again requested that the claimant's benefits be terminated. In response, the claimant alleged that the carrier did not pay certain medical bills pursuant to RSA 281-A: 23. A hearing was held before a hearing officer, and in December 1994, a decision was rendered finding that the claimant was no longer totally disabled. The decision also found that the claimant cooperated with vocational rehabilitation, but that he lacked motivation to improve and was, therefore, not entitled to continuing vocational rehabilitation assistance. The decision ordered the carrier to pay the claimant's medical bills. Both parties appealed to the WCAB.

The WCAB held a de novo hearing in March 1996. The WCAB denied the claimant's request for attorneys fees on the issue of medical bills, because the claimant's attorney presented no evidence before the board on the issue of medical bills. The Supreme Court reversed the board's decision, finding that the issue of medical bills was noticed below and that the claimant never withdrew his request for a hearing on the issue even though no evidence on the issue was presented to the WCAB. Therefore, the claimant "prevailed" under RSA 281-A: 44.

In Appeal of Brown,50 the court determined that the statute authorizing attorneys fees, RSA 281-A: 44, is vague, and it established new guidelines for the award of fees and costs.

The facts in Brown are outlined above51. To summarize, in October 1991, Mr. Brown filed a notice of injury, and the carrier denied the claim. The department of labor denied the claim on the basis that the claimant had failed to give his employer timely notice. The WCAB also denied the claim. In 1994, the Supreme Court remanded the matter to the WCAB because, it found, there had been no evidence presented to the board that there had been any prejudice to the insurer. The claimant then filed a request for attorney's fees with the department of labor (not with the WCAB).

At the October 1995 remand hearing before the WCAB, Brown's attorney told the board that it could ignore the request for fees. The board issued its decision in 1996, in which it detailed the finding of prejudice, and the claimant once again appealed to the Supreme Court.

On appeal to the Supreme Court, the carrier argued that the court should decline to decide the issue of attorneys fees, because Brown's attorney told the WCAB at the most recent hearing that it could ignore the issue, because the claimant had not filed a motion for fees directly with the board, and because the claimant had failed to raise the issue in his motion for rehearing of the board's 1996 decision. The carrier also argued that the claimant was not entitled to attorney fees as a matter of law because the claimant had not yet recovered payments under the statute, citing the Supreme Court's decision in Bothwick v. State,52 (in which the court held that payment of fees was not appropriate where the claimant had not "benefited as a result of [the] decision.").

In response, the claimant argued that the statute, RSA 281-A: 44, I, was vague as to the procedure to be followed for requesting an award of fees and costs, and that, because it was vague, the Supreme Court (pursuant to its mandate in Appeal of Griffin,53) should adopt a construction favorable to the claimant in order to give the broadest reasonable effect to the remedial purpose of the workers' compensation laws. The court agreed.

In its decision, the court acknowledged that the term "prevail" was not defined in the statute, and therefore looked to its plain meaning as the term is defined in the 1961 Webster's Third New International Dictionary, the standard dictionary the court uses to define words. Applying the dictionary's definition of "prevail," the court concluded that the claimant was "entitled to fees because he was 'successful' in the first appeal before th[e supreme c]ourt."54

The court then went on to answer the central question before it, i.e., to what extent a claimant has to succeed before he is entitled to attorney's fees. It held that for a claimant who initiates the appeal process to prevail, that claimant, as a result of the appeal to that appellate body, must have secured a legal right or financial benefit greater than he or she had received prior to the appeal. The court also stated that when the employer initiates the appeal, fees are appropriate when the claimant prevails in the defense of his or her entitlement.

If there are unsuccessful claims as well as successful ones, the court stated, the fee should be reduced to exclude time spent on unsuccessful claims. This is to ensure that employers are not responsible for fees associated with ancillary non meritorious claims.

In response to the legal argument that was asserted by the carrier, the court clarified its holding in Bothwick55. It said that a benefit entitling the claimant to fees is not limited to payment of compensation, but "could include the grant of a non-monetary benefit such as a new hearing."56

The court said that if, on remand, the board awarded compensation to the claimant, he would be entitled to receive reasonable attorney's fees associated with all proceedings before the board. In any event, the court said, he was entitled to fees incurred on his appeals to the Supreme Court because in both appeals he received a benefit: the right to have a hearing on prejudice and the right to have a hearing on entitlement to benefits.

The court concluded its decision by establishing a procedure for awarding fees and costs, which is for the most part a ratification of the procedure that has been utilized by the WCAB. The board has the authority to decide requests for attorney's fees and costs incurred from the date of the decision of the hearing officer through the date of the board's ruling on a party's motion for rehearing. The Supreme Court has the authority to decide requests for attorney's fees from the date of the denial of a motion for rehearing through issuance of a certificate of order by the Supreme Court.

In its decision, the court cited its decision in City of Manchester v. Doucet,57 for the criteria to be used to determine reasonableness of fee awards under the workers' compensation statute. In Doucet, the court held that "[r]elevant factors in the determination of reasonable fees include the amount involved, the nature, novelty, and difficulty of the litigation, the attorney's standing and the skill employed, the time devoted, the customary fees in the area, the extent to which the attorney prevailed, and the benefit thereby bestowed on his clients."58 The court in Doucet also cited Disciplinary Rule 2-106(b) of the Code of Professional Responsibility, which is presently Rule 1.5(a) of the Rules of Professional Conduct.59

A close reading of the Doucet criteria indicates that there is no requirement that the opposing counsel object to the fees before the board has the authority to determine the reasonableness of them.

IX. MOTIONS FOR REHEARING

A motion for rehearing pursuant to RSA 541: 3 is analogous to a motion for reconsideration pursuant to Superior Court Rule 59-A. A motion for rehearing, like a motion for reconsideration, allows a trier of fact to review points of law or fact that the trier of fact has overlooked or misapprehended. It does not purport to authorize either party to submit further evidence bearing on the motion,60 nor is it designed to allow parties to raise issues that they overlooked when presenting their original case.61 That notwithstanding, the Supreme Court has determined that under some circumstances an aggrieved party has the authority to submit additional evidence with a motion for rehearing.

In Appeal of Gilbert,62 the claimant injured his left knee in 1989. In 1995, he sought an increase in his aver age weekly wage calculation. The hearing officer denied his request, after which the claimant appealed to the WCAB. The claimant's attorney argued that a twenty-two week period was the period that was most favorable to the claimant, and that a year-end bonus and profit sharing distribution, both of which were received during this period, should be included in their entirety.

The WCAB included the bonus and the profit sharing distribution but did so on a pro rata (as opposed to a lump sum) basis. In his motion for rehearing, the claimant's attorney argued that because the board in effect rejected his economic model, he should be able to submit new evidence in the form of a new economic model, this time based on thirty-seven weeks.

The Supreme Court agreed. It acknowledged in its decision that the burden for furnishing wage information is on the claimant, and that the department has no independent duty to seek out wage information that the claimant may have failed to provide. However, it went on to conclude that if the fact finder applies a different economic model than that proposed by the claimant, then "in a motion for rehearing, the claimant is entitled to recalculate the most favorable weekly wage and submit corroborating evidence."63

X. A FINAL NOTE: THE IMPORTANCE OF ABIDING BY PROCEDURAL DEADLINES IN ADMINISTRATIVE MATTERS

As I explained in my 1998 article, RSA 281-A: 43, I (b) requires that an appeal from a hearings officer's decision "shall be taken to the board no later than 30 days from the date of such decision." If the petition is not timely, it must be dismissed.

The harshness of this directive was before the court in Appeal of Demeritt.64 The facts in Demeritt are outlined in detail above.65 Ms. Demeritt, who was pro se at the time, filed a claim for workers' compensation benefits in 1992 against her two most recent employers. A hearing officer decided (incorrectly) that a different, non-party employer, Textron, was responsible for the claim. The pro se claimant did not appeal this decision.

Three years later she brought a claim against Textron. The hearing officer denied the claim, noting that the claimant's failure to appeal the 1992 decision foreclosed liability against the two most recent employers. The WCAB also denied the claim, and the claimant appealed to the Supreme Court.

The claimant argued that the WCAB erred as a matter of law by failing to remedy the inconsistency among the 1992, 1995, and 1996 decisions. The Supreme Court disagreed. The court found that the claimant, though pro se, was not without responsibility for the harsh result caused by the seemingly inconsistent decisions. In response to the claimant's attempt to minimize her responsibility by explaining that she was not represented by counsel until the 1995 hearing before the WCAB, the court responded that "[p]ro se litigants... are bound by the same procedural rules that govern parties represented by counsel."66

XI. CONCLUSION

The Supreme Court has issued a number of significant decisions involving workers' compensation law over the past several years, which was one of the reasons why I wrote the 1998 article that appeared in last summer's Bar Journal. Since the publication of that article, several more significant decisions have been issued by the court involving workers' compensation.

The Supreme Court continues to accept appeals from decisions of the WCAB, and there remain a number of workers' compensation cases that are currently pending before the Supreme Court that will, in all likelihood, impact workers' compensation law and practice before the WCAB in the future.

ENDNOTES

1.

Vol. 39, No. 2.

2.

Leccacorvi v. State of N.H.Workers' Comp. Commission, 135 N.H. 91, 94, 601 A.2d 165, 167 (1991), citing Charles & Nancy, Inc. v. Zessin, 118 N.H. 556, 558, 391 A.2d 880, 882 (1978).

3.

142 N.H. ___ , 709 A.2d 1325 (1998).

4.

142 N.H. at ___, 709 A.2d at 1326, quoting Johnson v. Aetna Life & Casualty Co., 131 N.H. 698, 701, 559 A.2d 838, 840 (1989).

5.

142 N.H. at ___, 709 A.2d at 1326, quoting Morin v. J.H. Valliere Co., 113 N.H. 431, 434, 309 A.2d 153, 155 (1973).

6.

143 N.H. ___, ___ A.2d ___ , 1998 WL 764825 (decided November 4, 1998).

7.

143 N.H. at ___, ___ A.2d at ___.

8.

Id.

9.

Id.

10.

138 N.H. 623, 645 A.2d 655 (1994).

11.

Briggs, 138 N.H. at 627, 645 A.2d at 658.

12.

___ N.H. ___, ___ A.2d ___, 1998 WL 667987 (decided September 30, 1998).

13.

Appeal of Rhuland, ___ N.H. at ___, ___ A.2d at ___, quoting Appeal of Briggs, 138 N.H. 623, 631, 645 A.2d at 661.

14.

Supreme Court docket no. 97-093.

15.

Id.

16.

143 N.H. ___, ___ A.2d ___ , 1998 WL 714054 (decided October 14, 1998).

17.

143 N.H. at ___, ___ A.2d at ___.

18.

Id.

19.

See RSA 281-A: 2, VIII or IX.

20.

See RSA 281-A: 3.

21.

143 N.H. ___, 714 A.2d 216 (1998).

22.

See RSA 281-A: 15, I.

23.

136 N.H. 18, 609 A.2d 754 (1992).

24.

136 N.H. at 20, 609 A.2d at 755.

25.

Id.

26.

136 N.H. at 20, 609 A.2d at 755, 756, quoting Taylor v. Davidson Rubber Co., 122 N.H 428, 433, 445 A.2d 1119, 1122 (1982).

27.

138 N.H. 623, 645 A.2d 655 (1994).

28.

138 N.H. at 629, 645 A.2d at 659.

29.

141 N.H. 794, 693 A.2d 1169 (1997).

30.

141 N.H. at 796, 693 A.2d at 1171.

31.

143 N.H. ___, 713 A.2d 378 (1998).

32.

143 N.H. at ___, 713 A.2d at 380.

33.

143 N.H. at ___, 713 A.2d at 380, citing Briggs, 138 N.H. at 631, 645 A.2d at 661.

34.

Lab Rule 506.02 (m).

35.

143 N.H. ___, 714 A.2d 222 (1998).

36.

143 N.H. at ___, 714 A.2d at 224.

37.

Id.

38.

___ N.H. ___, ___ A.2d ___ (decided January 15, 1999).

39.

citing Petition of Abbott, 139 N.H. 412, 414, 653 A.2d 1113, 1115 (1995).

40.

citing Ranger v. N.H. Youth Dev. Center, 117 N.H. 648, 650-651, 377 A.2d 132, 134 (1977).

41.

142 N.H. ___, 715 A.2d 725 (1997).

42.

RSA 91-A: 4, I.

43.

RSA 91-A: 1.

44.

RSA 91-A: 1-a, III.

45.

See Culotta v. New Hampshire Dept. of Labor, 142 N.H. 304, 700 A.2d 302 (1997).

46.

Appeal of Morin, 140 N.H. 515, 517, 669 A.2d 207, 209 (1995).

47.

140 N.H. at 518-519, 669 A.2d at 209.

48.

142 N.H. ___ , 709 A.2d 1325 (1998).

49.

___ N.H. ___, ___ A.2d ___, 1998 WL 764825 (decided November 4, 1998).

50.

Id.

51.

See the section on notice to employer.

52.

119 N.H. 583, 589, 406 A.2d 462, 466 (1979).

53.

140 N.H. 650, 654, 671 A.2d 541, 543 (1996).

54.

Brown, ___ N.H. at ___, ___ A.2d at ___.

55.

119 N.H. 583, 406 A.2d 462 (1979).

56.

Brown, ___ N.H. at ___, ___ A.2d at ___.

57.

133 N.H. 680, 683, 582 A.2d 288, 290 (1990).

58.

Id.

59.

Id.

60.

Brown v. John Hancock Mut. Life Ins. Co., 131 N.H. 485, 492, 558 A.2d 822, 826 (1989).

61.

Farris v. Daigle, 139 N.H. 453, 456, 656 A.2d 825, 827 (1995).

62.

143 N.H. ___, 714 A.2d 216 (1998).

63.

Gilbert, 143 N.H. at ___, 714 A.2d at 218.

64.

143 N.H. ___, 713 A.2d 378 (1998).

65.

See the section on uncontroverted medical evidence.

66.

Demeritt, 143 N.H. at ___, 713 A.2d at 381, citing In re Brewster, 115 N.H. 636, 638, 351 A.2d 889, 890 (1975).

The Author

Attorney William J. Robinson is a partner in the firm of Bonnette & Robinson, Keene, NH.

 

 

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