2006-125, APPEAL OF FRANCIS LORETTE

This is an appeal from a decision of the New Hampshire

on the brief and orally), for the respondent. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael R. Mortimer to press. Errors may be reported by E-mail at the following address: brief and orally), for the petitioner. McDowell & Osburn, P.A., of Manchester (Mark D. Morrissette on the

page is: http://www.courts.state.nh.us/supreme.

(New Hampshire Compensation Appeals Board) APPEAL OF FRANCIS LORETTE

editorial errors in order that corrections may be made before the opinion goes No. 2006-125 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Compensation Appeals Board Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as question that we resolved in p. 2 statute did not specify the date upon which to base the average weekly wage, a A:15, I(a); RSA 281-A:28 (1999). However, prior to a 2003 amendment, the disagrees, and offers alternative methods for calculating his impairment award. argues that the petitioner’s award under the statute is zero. The petitioner in October 2004, over a year after his last date of employment, the respondent

claimant’s average weekly wage “during the preceding 26 weeks.” RSA 281-

reasonably could have been made.

impairment assessment. Because the petitioner’s impairment assessment was

Typically, the amount of the award is based upon a calculation of the

in the record, upon which the board’s decision

the earnings of the claimant during the weeks preceding his permanent

the injured employee simply by virtue of the loss . . . .” RSA 281-A:32, X. disability and consequently had no wages. Relying upon our decision in permanent loss as a result of a work-related injury. The award “accrue[s] to permanent impairment award to injured employees who suffer from a disturbed if they are supported by competent evidence support the Board’s ruling that a permanent impairment award is based upon unreasonable. The board’s findings of fact will not be permanent impairment award under the Workers’ Compensation Law. The respondent argues that RSA 281-A:32 and our decision in the evidence before us that the order is unjust or Ranger

petitioner’s case was zero.

2004. At the time of the assessment, the petitioner was unemployed due to his RSA 281-A:15, I (Supp. 2005); RSA 281-A:32. RSA 281-A:32 provides a

At issue in this case is the calculation of the petitioner’s scheduled law, or if we are satisfied by a clear preponderance of

Appeal of Rainville, 143 N.H. 624, 631 (1999). interpretation of a statute is a question of law, which we review de novo. See employee’s wages at the time of the permanency assessment,” which in the Appeal of Cote, 146 N.H. 705, 708 (2001) (quotation omitted). However,

Both parties agree that the petitioner’s loss became permanent on October 21, impairment assessment and provided it to the respondent’s insurance carrier. On October 21, 2004, the petitioner’s physician gave him a permanent

We will overturn the board’s decision only for errors of

Board noted that “the permanent impairment award shall be based upon the Ranger v. New Hampshire Youth Development Center, 117 N.H. 648 (1977), the

petitioner was totally disabled as a result of his October 7, 1996 work injury. On June 12, 2003, a department of labor hearings officer found that the injury.

p. 3 average weekly wage of the employee at the time of the

the injury.

unrelated” (quotation omitted)); rates, the average weekly wage used shall be the loss. the body. For the purposes of determining disability regarding the loss or loss of the use of the member of

workers’ compensation cases we have applied the law in effect at the time of

“[d]isability benefits and permanent impairment awards . . . are distinct and impairment awards. See Appeal of Cote, 144 N.H. at 129 (recognizing also that specifically to determinations of disability benefits, and not permanent upon the claimant’s average weekly wage as of the date of the permanency of However, a review of the common law indicates that such a rule is applied maximum medical improvement has been achieved,

Lessard v. City of Manchester Fire Dep’t, 118 N.H. 43, 47 (1978).

petitioner’s injury occurred in 1996. We are not unmindful that in previous therefore our holding in Ranger, applies to this case, presumably because the Both parties assume that RSA 281-A:32 as written in 1996, and

injury shall be used. 2003, provides that the claimant’s average weekly wage as of the date of the Ranger, 117 N.H. at 651. In contrast, RSA 281-A:32, XI as amended in

interpretation of RSA 281-A:32 prior to the 2003 amendment would be based impairment award could vary significantly. An award based upon our becomes due upon prompt medical disclosure, after was determined to have total and permanent loss of vision in his eye. Depending upon the applicable version of the statute, a permanent

RSA 281-A:32, XI. decision in

Payment Due. Payment of the scheduled award claimant’s average weekly wage as of the date of the injury or as of the date he

2003, RSA 281-A:32, XI was amended and now reads, in pertinent part:

Ranger. See, e.g., Laws 1983, 392:12-:15; Laws 2003, 269:2. In

The legislature amended RSA 281-A:32 several times following our

N.H. 772 (1985). court. Petition of L’Heureux, 132 N.H. 498 (1989); Petition of Lapinski, 126 This ruling was subsequently affirmed by several other decisions from this as of the date of prompt medical disclosure regarding the loss.” Id. at 651. held that “the average weekly wage shall be based upon the employee’s wages

whether the permanent impairment award should be based upon the nine years after the initial injury. Ranger, 117 N.H. at 649. At issue was gradual deterioration of vision until he permanently lost vision in his eye nearly In Ranger, the claimant suffered an alkali burn in his eye, resulting in a p. 4 We reverse and remand for further proceedings consistent with this opinion.

permanent impairment assessment. RSA 281-A:32, X; employee’s right to the award accrues; this date remains the date of the A:32, XI. However, this amendment did not change the date upon which the calculated based upon his average weekly wage preceding his injury in 1996. amended in 2003, the petitioner’s permanent impairment award should be applies to this case. Therefore, in accordance with RSA 281-A:32, XI, as

concurred.

weekly wage of the employee at the time of the injury” shall be used. RSA 281-

impairment assessment was in October 2004, the law in effect on that date

by this concession since we are the final arbiters of statutory meaning. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

that for purposes of calculating the permanent impairment award, “the average

Accordingly, since the parties agree that the petitioner’s permanent

relevant date for calculating his average weekly wage, we are not constrained of Doran, 123 N.H. at 433. N.H. at 129; respondent that the date of the permanent impairment assessment is the Petition of L’Heureux, 132 N.H. at 500-01; Petition of Dependents avail and that the loss is permanent”). Although the petitioner agrees with the Appeal of Cote, 144

responsibilities of the parties”);

In the 2003 amendment to RSA 281-A:32, XI, the legislature provided

employee simply by virtue of the loss . . . .”); Town of Hinsdale v. Town of Chesterfield, 153 N.H. 70, 72 (2005). 281-A:32, X (“[T]he scheduled awards under this section accrue to the injured Cf.

medical opinion takes the position that further medical treatment will be of no permanent loss may occur either at the time of the injury or when sound

effect at the time of Mr. Doran’s loss . . . governs the respective rights and Petition of Dependents of Doran, 123 N.H. 429, 433 (1983) (“the statute in (“it is the loss itself which triggers accrual of the award” (quotation omitted));

which we have held is the date of the permanent impairment assessment. RSA permanent impairment cases, we apply the law in effect on the date of the loss,