2007-657, APPEAL OF SAU #35 WHITE MOUNTAIN SCHOOL DISTRICT

The appellant, Fire Casualty Insurance Co. of CT (carrier),

orally), for the claimant. Fitzgerald & Nichols P.A., of Laconia (Shawn E. Nichols on the brief and

and orally), for the appellant, Fire Casualty Insurance Co. of CT. to press. Errors may be reported by E-mail at the following address: Bernard & Merrill, PLLC, of Manchester (Gary S. Harding on the brief

(New Hampshire Compensation Appeals Board) page is: http://www.courts.state.nh.us/supreme. APPEAL OF SAU #35 WHITE MOUNTAIN SCHOOL DISTRICT

No. 2007-657 editorial errors in order that corrections may be made before the opinion goes Compensation Appeals Board Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 (1999). Because a stay was not operation of an award” unless the hearing officer so orders. RSA 281-A:43, I(b)

appeal taken from a decision of the hearing officer shall not “suspend the

the case. No reason for this lengthy delay is evident from the record.

board based its decision upon RSA 281-A:43, I(b), which provides that an 2003 through October 6, 2005, the date of the hearing before the DOL. The concluded that the carrier must pay Mello’s medical bills incurred from June 2 27, 2005. medical payments. The carrier also filed an appeal with the board on October request for a stay was filed within the thirty-day period and was eventually

reconsideration and granted the stay for medical payments pending appeal of

paid by Mello’s health insurance carrier. “case is closed” and to stop sending bills. Portions of some of the bills were board in July 2007 and a decision was issued August 2, 2007. The board

2005, the carrier filed a motion for reconsideration and a request for a stay of required to pay the medical bills by the thirtieth day, despite the fact that a officer’s October 20, 2005 decision, the board concluded that the carrier was responsibility of the insurer.” The carrier did not appeal this decision. carrier’s motions were filed, the hearing officer denied the motion for issued within thirty days after the hearing

verbally informing Mello’s health care provider in September 2004 that his A hearing on the carrier’s October 27, 2005 appeal was held before the

medical bills within thirty days of the date of the decision. On October 25, that the medical bills were compensable and ordered the carrier to pay the “treatment for [Mello’s] condition is found to be compensable and the 2005, and by decision dated October 20, 2005, the hearing officer determined 23, 2003, when he returned to work full time, and further ordered that the carrier’s motions. On February 10, 2006, over three months after the Mello temporary total disability benefits from November 21, 2002, through May October 2005 decision. Both the carrier and Mello also requested a ruling on DOL in January 2006, Mello requested enforcement of the hearing officer’s The carrier did not pay the medical bills and through letters sent to the

were forwarded to the carrier for payment. The carrier denied these claims by

coverage from the carrier for these claims. A hearing was held on October 6, Mello requested a hearing before the DOL in June 2005, seeking benefits. In June 2003, a department of labor (DOL) hearing officer awarded

full time.

Mello continued to see his doctor after May 2003 and the resulting bills

Mello filed a workers’ compensation claim for indemnity and medical

Mello stopped working under doctor’s orders until May 2003, when he returned He was taken to the hospital later that night and treated for this condition. allowed an appeal.

p. 3 at any time within one year of the DOL’s decision to be through the person’s own neglect” to petition the board through mistake, accident, or misfortune and not

appeal is fatal to a party’s right to pursue an appeal,

by a decision of the commissioner who was prevented

filed “no later than 30 days” from the DOL’s decision. it[,] . . . [and] make clear that the failure to file a timely from a DOL decision to those who are “aggrieved” by the filing of an appeal the board shall . . . hold a full hearing on the appeal.” Together these statutes limit the right to appeal

taken to the board no later than 30 days from the date of such decision. Upon the commissioner or the commissioner’s authorized representative shall be

unreasonable. statute.

was not before the board. RSA 281-A:50 . . . permits “any person aggrieved required by the nature of his injury.

On its face, this statute mandates that an appeal be

decision was erroneous.

A:43, I(b) provides, in pertinent part, as follows: “An appeal from a decision of

See RSA 281-A:43 (Supp. 2007); RSA 281-A:50 (1999). RSA 281-

by a clear preponderance of the evidence, we find it to be unjust or The right to appeal a decision of a DOL hearing officer is governed by

because that issue was not specifically appealed by either party and therefore issue of whether Mello’s subsequent medical treatment was reasonable and the effect of the stay upon the carrier’s obligation to pay the medical bills The carrier argues that the board exceeded its authority by addressing

appealing party, the carrier has the burden of demonstrating that the board’s followed. board’s factual findings to be prima facie lawful and reasonable. Id. As the

Appeal of Fay, 150 N.H. 321, 324 (2003). We consider the required due to the nature of Mello’s work injury.

We will not disturb the board’s decision absent an error of law, or unless,

ordering the carrier to pay Mello’s medical bills; and (3) failing to address the stay of medical payments when that issue was not before it on appeal; (2) On appeal, the carrier argues that the board erred by: (1) addressing the

The carrier filed a motion for reconsideration, which was denied. This appeal

by the carrier regarding whether the medical visits were reasonable and granted on February 10, 2006. The board did not address the issue appealed not have been addressed.

p. 4 83 days after the order took effect by operation of law was a nullity.” way to delay the effective date of the order. Therefore, the granting of the stay request for a stay was filed in a timely manner the filing did not operate in any obligation to make payment was not an issue before the board and it should 4 petition pursuant to RSA 281-A:50. Thus, the effect of the stay on the carrier’s he could appeal to the board. Mello did not file an appeal, nor did he bring a treatment is compensable under RSA 281-A:23, I. We decline to do so because

period as the nature of the injury may require.”); furnished to an injured employee reasonable medical . . . services . . . for such

by the nature of his work injury. obligated to pay the medical bills upon its conclusion that “although the

the expiration of the thirty-day period. Mello then had an adverse ruling which The parties urge us to determine on appeal whether Mello’s medical

should have decided this issue. N.H. at 325. During oral argument, opposing counsel conceded that the board

this chapter, or the employer’s insurance carrier, shall furnish or cause to be

burden to prove that his medical treatment was both reasonable and required October 20, 2005 decision. The board based its decision that the employer was failing to address the issue appealed; namely, whether Mello satisfied his carrier argues that it was relieved from making payments as ordered in the This brings us to the carrier’s final argument, that the board erred by medical bills. Because a stay was ultimately granted by the hearing officer, the day period. However, the hearing officer granted the stay three months after medical bills because the stay failed to suspend that obligation. that the carrier refused to make payment following the expiration of the thirtywe reverse the board’s decision that the employer was required to pay the appeal was pending before the board, Mello protested several times to the DOL Given our above holding that the stay was not an issue before the board,

Next, the carrier argues that the board erred by ordering it to pay Mello’s

raised at the department of labor hearing”). was favorable to him, and no stay was issued at that time. While the carrier’s claims on appeal before the board; nor can board rule on issues that were “not review does not confer upon non-appealing parties the right to pursue their

October 20, 2005 decision within the thirty-day period because the decision There was no cause for Mello to file an appeal of the hearing officer’s

Appeal of Currin, 149 N.H. 303, 306-07 (2003) (brackets omitted).

and the board grants the petition. unless the party petitions pursuant to RSA 281-A: p. 5 50 5

carrier’s favor that Mello’s medical bills are not covered under RSA 281-A:23, I. reimbursement can be considered, there must first be a determination in the issue, however, because it is not ripe for our review. Before the issue of

healthcare providers for any payments it has made. We decline to address this

on this issue, we leave that for determination by the board in the first instance. BRODERICK, C.J., and DALIANIS, DU GGAN and GALWAY, JJ., concurred.

Finally, the carrier argues that it is entitled to reimbursement from the

has waived, or was precluded from making, certain arguments before the board work injury. See RSA 281-A:23, I. To the extent Mello argues that the carrier of treatment that was both reasonable and required by the nature of Mello’s for a determination regarding whether the medical bills at issue were the result p. 5 534, 538 (1996). In light of Mello’s concession that the board erred, we remand it is not our role at this stage of the proceedings. Appeal of Lalime, 141 N.H.