2006-461, APPEAL OF TINA SILK

The employee, Tina Silk, filed a motion for attorney’s fees

Heather Silverstein on the memorandum of law), for the defendant. Desmarais, Ewing & Johnston, PLLC, of Manchester (Scott A. Ewing and to press. Errors may be reported by E-mail at the following address: Johnson on the memorandum of law), for the plaintiff. Law Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H.

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

(New Hampshire Compensation Appeals Board)

editorial errors in order that corrections may be made before the opinion goes No. 2006-461 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 p. 2 I (1999) (amended 2003). In

counsel fees and costs as approved by the board or court . . . .” RSA 281-A:44,

legal services for this appeal did not begin until 2006, the employer maintains

reasonable doubts in favor of the injured worker. both, the employee, if such employee prevails, shall be entitled to reasonable

services were rendered governs the employee’s request for attorney’s fees. As

we give the broadest reasonable effect to its remedial purpose, resolving all payable under this chapter which is appealed to the board or supreme court or which version applies. RSA 281-A:44, I, provided: “In any dispute over the amount of the benefit that the current version of RSA 281-A:44, I, applies. Under the prior version, available to the injured employee.

isolated words and phrases found therein. however, RSA 281-A:44, I, was amended to supersede the construction of the statute as a whole, and not simply by examining keep in mind the intent of the legislation, which is determined by examining the board for further consideration. The employer contends that the statute in effect at the time that legal of a statute. 575, 578 (1995).

N.H. 637, 638-39 (1994). When construing the Workers’ Compensation Law, depending upon the version of the statute applied, we must first determine

benefit greater than he or she had received prior to the appeal.” In 2003, Although we give undefined language its plain and ordinary meaning, we must which reimbursement was sought was compensable,” we remanded the case to Appeal of HCA Parkland Medical Ctr., 143 N.H. 92, 94 (1998). the board applied the correct test in determining whether the treatment for We are the final arbiter of legislative intent as expressed in the language 2004 order were erroneous and[,] because we [could not] determine whether

I(a)(1) (Supp. 2007). Because the employee’s attorney’s fees award may differ awarded by the decision which is the subject of the appeal.” RSA 281-A:44, relies upon RSA 281-A:44, p. 2 I (1999) (amended 2003). In its objection, the defining “prevail” as “receiv[ing] an award . . . which is greater in amount than

held that to “prevail” an employee “must have secured a legal right or financial

order and remanded the case. We ruled that “the board’s findings regarding its

employee appealed the board’s order to this court.

The employee thereafter moved for fees and costs. In her motion, she

By an unpublished order dated May 23, 2007, we vacated the board’s

compensable wrist injury. Her request was denied by the board in 2006. The bills for subsequent chiropractic treatment that she alleged was related to her compensation case, the statute in effect at the time of injury must be applied.”).

p. 3 effect on the date of injury.” (citation omitted));

and liabilities applicable to workers’ compensation cases. attorneys’ fees to be awarded to a prevailing claimant in a disputed workers’

benefits, of which the attorney’s fee is a function, are based upon the law in

compensation benefits to which claimant is entitled);

distinguish an award of attorney’s fees from disability benefits or other rights 221 (3d. ed. 2001) (“Several courts have held that in determining the amount of 732 P.2d 1352, 1354 (Mont. 1987); 2 R. Rossi, Attorney’s Fees § 11:87, at 11-

governed by the law in p. 3 effect on the date of injury because the worker’s 25 S.W.3d 124, 127 (Ky. 2000) (“T he general rule is that an attorney’s fee is

context of attorney’s fees that would justify a departure from the general rule Springer Bldg. Materials Corp., 777 P.2d 383, 385 (N.M. Ct. App. 1989) (finding

regulate awards of attorney’s fees and costs. We see no principled reason to benefits an injured worker may receive, the legislature has also seen fit to an overall legislative scheme. In addition to regulating the type and amount of The attorney’s fees and costs authorized by RSA 281-A:44, I, are part of T

determining the governing law for disability benefits). that rule applied to permanent impairment awards should be adopted in

comparable statutory provisions or indications of legislative intent in the statutory construction. Appeal of Cote, 144 N.H. at 129. There are no L’Heureux, 132 N.H. 498, 500-01 (1989), this conclusion is derived from law in effect on the date the permanency of loss becomes apparent, Petition of Moreover, although a permanent impairment award is governed by the

which employee is entitled is determined by law in force at time of injury). I, in effect at the time of injury should apply. Manchester, 100 N.H. 335, 340 (1956) (ruling amount of compensation to generally applies in workers’ compensation cases, the version of RSA 281-A:44, and employee’s rights to benefits are fixed as of the date of injury); Davis v. Because, the employee argues, the law in effect at the time of the injury Burnham v. Downing, 1 25 N.H. 293, 298 (1984) (holding employer’s liability employee’s entitlement to disability benefits for a recurring injury. See also employee’s injury, rather than at the time of total disability, governs an N.H. 126, 128-29 (1999), we held that the law in p. 3 effect on the date of the McElwain Co., 95 N.H. 100, 103 (1948). For example, in Appeal of Cote, 144 Lessard v. City of Manchester Fire Dept., 118 N.H. 43, 47 (1978); Rivard v. compensation case are determined by the law in effect on the date of injury. As a general rule, the rights and liabilities of the parties in a workers’

that the date of injury should determine the controlling statutory authority. that the current version of RSA 281-A:44, I, applies. The employee counters availability of attorney’s fees and costs for certain claimants bolsters our

p. 4 appealed a board’s decision and obtained a new hearing before the board.

difference highlighted by the parties’ dispute in this case. This change in the

of RSA 281-A:44, I, “prevailing” claimants included claimants who successfully

that

new statutory definition of “prevail” may not apply to such claimants, a because application would Appeal of Brown promote justice.”, 143 N.H. at 118-19. Under the current version, however, the

are substantive. claimants entitled to collect attorney’s fees and costs. Under the prior version Moreover, the amendment to RSA 281-A:44, I, changes the category of

RSA 281-A:44, I, affects substantive rights. other substantive benefits in the workers’ compensation setting, we conclude procedural. Because attorney’s fees and costs are inextricably intertwined with statute affects the parties’ substantive or procedural rights.” anomalous to hold that the statute governing attorney’s fees is merely attach a new disability in respect to past transactions”). As such, it would be

68 (finding amendment to statute governing disability benefits not retroactive fundamental fairness, because the underlying purpose of all legislation is to maximum compensation not applied retroactively); Lessard, 118 N.H. at 367-

See, e.g., Burnham, 125 N.H. at 298 (amendment increasing

attorney’s fees are indistinguishable from other liabilities and rights — which determining the governing law in effect in workers’ compensation cases, affects the substantive rights of the parties. We have already noted that, in Goldman & Elliott, 151 N.H. 770, 773 (2005), we find that the statute here rights and remedies is not a simple or formulaic matter, see In the Matter of While distinguishing substantive rights and liabilities from procedural retrospectively, [as is the case here,] our interpretation turns on whether the

Eldridge v. Eldridge, 136 N.H. 611, 613 (1993).

the question of retrospective application rests on a determination of Company, 121 N.H. 67, 70-71 (1981). Nevertheless, “[i]n the final [analysis], A:44, I, is remedial in nature and, thus, applies retroactively. We disagree. retroactively. LeBarre v. Deneault, 123 N.H. 267, 272 (1983); Lozier v. Brown affect an individual’s substantive rights, however, it may not be applied Mackey, 123 N.H. 690, 695 (1983). If application of a new law would adversely it may be applied to cases pending at the time of enactment. Gelinas v. 138 N.H. 392, 394 (1994). When a statute is remedial or procedural in nature,

legislature is silent as to whether a statute should apply prospectively or prospectively. Shannon v. Foster, 115 N.H. 699, 701 (1975). “When the We have long held that statutes are presumptively intended to operate

The employer argues, however, that the 2003 amendment to RSA 281-

cases are governed by the statute in effect on the date of injury. Accordingly, we hold that attorneys’ fees and costs in workers’ compensation p. 5 5

possess prior to [this] appeal.” entitlement to benefits on remand from this appeal — that [s]he did not

received prior to the appeal,” is entitled to attorney’s fees and costs. on appeal, “secure[s] a legal right or financial benefit greater than . . . she had

court because she “received a right — the right to have . . . a hearing on

in the amount of $ p. 5 508.51.

and costs. As noted above, under former RSA 281-A:44, I, an employee who,

BRODERICK, C.J., and DALIANIS and GALWAY, JJ., concurred. treatment, the employee is entitled to fees and costs incurred on appeal to this

the employee is awarded attorney’s fees in the amount of $8,614. p. 5 50 and costs The employer does not dispute the amount of fees or costs. Accordingly,

this case, we turn to the merits of the employee’s request for attorney’s fees Id.

did not award medical payments to the employee for her chiropractic nonmonetary benefit, such as a new hearing.” Id. at 120. Thus, although we “not limited to payment of compensation,” and it can “include the grant of a Appeal of Brown, 143 N.H. at 119. A “benefit” entitling the employee to fees is

Having determined that the prior version of RSA 281-A:44, I, applies to

respective rights and responsibilities of the parties. conclusion that the amendment to RSA 281-A:44, I, substantively affects the