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2008-221, APPEAL OF GEORGE D. GAMAS
he suffered from asbestosis causally related to his prior employment. or Occupational Disease (form 8aWCA) with his former employer claiming that
of a back injury. In September 2006, Gamas filed a Notice of Accidental Injury
RSA 281-A:19. We reverse and remand. respondent, Anheuser-Busch, Inc., of his occupational disease pursuant to asbestos-related lung condition because he had failed to timely notify the
to 2001, although he was out of work for many years in the 1980s as a result worked as a laborer for Anheuser-Busch at its Merrimack brewery from 1976 The CAB found or the record supports the following facts. Gamas
Supp. 2008). The CAB ruled that Gamas was not entitled to benefits for his recovery under the Workers’ Compensation Law. See RSA ch. 281-A (1999 & of the New Hampshire Compensation Appeals Board (CAB) denying him BRODERICK, C.J. The petitioner, George D. Gamas, appeals a decision
Getman and Tracy L. McGraw on the brief), for the respondent. Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Laurence W. to press. Errors may be reported by E-mail at the following address: William E. Aivalikles, of Nashua, by brief, for the petitioner.
Opinion Issued: May 1, 2009 Submitted: January 15, 2009
(New Hampshire Compensation Appeals Board) APPEAL OF GEORGE D. GAMAS page is: http://www.courts.state.nh.us/supreme.
No. 2008-221 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 claim was barred because it had not been filed within two years of that date as
chemicals and fumes, I got [a] lung problem.”
impairment in [his] pulmonary function.” employment at Anheuser-Busch by May 23, 2004. The CAB ruled that Gamas’
his deposition, Gamas stated: “Since I got exposed to asbestos at the brewery, environmental, health, safety and security resident manager, was present. In Court for the District of New Hampshire. Roland Vance, Anheuser-Busch’s 2
exposure in the form of pleural plaques [on his lungs] that . . . resulted in some or should have known of his claimed lung condition and its relationship to his
or dust. other possible causes for his lung ailments, including smoking, fume exposure firm representing Anheuser-Busch in a civil suit in the United States District concluded that to be the case. Some of Gamas’ medical reports mentioned
McCunney wrote to Gamas, stating that he had “suffered from asbestos After considering all the evidence, the CAB concluded that Gamas knew
him that his problems were related to asbestos exposure at the brewery.
On August 23, 2004, Gamas was deposed by an attorney from the law possibly or probably asbestos-related, though no physician unequivocally
RSA 281-A:19 and :20. issue of untimely and and Critical Care Unit. In a letter dated May 23, 2004, Dr. Robert J. improper notice of injury by an employee pursuant to injury. The carrier requested a hearing before the department of labor on the of his respiratory problems by the Massachusetts General Hospital Pulmonary Gamas first received treatment for asbestosis in 2004 after an evaluation his physicians about his respiratory complaints and that it was not clear to Gamas testified that until May 2005, he had received unclear diagnoses from suffering from an asbestos-related condition to be “confused and confusing.” The CAB found Gamas’ testimony regarding when he first knew that he was notice of his injury. The motion was granted, and Gamas appealed to the CAB. that Gamas’ claim was barred due to his failure to give timely and proper been exposed to asbestos at work and that the damage to his lungs was chest X-rays taken. Some of his doctors noted in their reports that he had Between 2000 and 2004, Gamas saw several physicians and had several
denied the claim on several grounds, including untimely and improper notice of
Prior to the hearing, Anheuser-Busch filed a motion to dismiss, arguing
in late September 2006. Anheuser-Busch’s insurance carrier subsequently Employer’s First Report of Occupational Injury or Disease form one week later, Anheuser-Busch.” Anheuser-Busch’s occupational nurse completed an asbestiosis [sic]” and that he “was exposed to asbestos while working for Specifically, he asserted that on November 2, 2000, he “was diagnosed with related, the three-year limit does not begin to run until “the employee knows,
employee does not realize he has been injured or that his injury is work-
within three years from the date of injury. RSA 281-A:21-a. Again, if an notice is given to the employer, an employee must file a compensation claim possible relationship to the employment.” RSA 281-A:19, I. Assuming timely
by reasonable diligence should know, of the nature of the injury and its
notice of injury does not begin to run until “[t]he date the employee knows, or know that his injury was related to his employment, the two-year time limit for an employee does not immediately know that he has been injured, or does not
3 the employer within 2 years from the date of the injury.” RSA 281-A:19. When the CAB’s decision was unjust or unreasonable.
employment until October 5, 2006, and thus his notice was timely filed; and (4) he could not reasonably have known of his asbestosis and its relation to his standard, we review its statutory interpretation Although we review the CAB’s findings of fact pursuant to this deferential we resolve all reasonable doubts in favor of the injured worker.
compensation] benefits . . . shall be barred unless notice of injury is given to
but failed to do so; (3) because he had conflicting diagnoses from his doctors,
before it, that such order is unjust or unreasonable.” RSA 541:13 (2007). reasonable effect to its remedial purpose. Thus, when construing the statute,
language that the legislature did not see fit to include.
implied therefrom.
statute considered as a whole. Under the current statutory scheme, “[c]laims for [workers’
139 N.H. 575, 578 (1995). notice because it knew of his asbestos-related injury and had a duty to report it Appeal of Cote, barred; (2) Anheuser-Busch is estopped from arguing untimely and improper actual and timely notice of his injury, and, therefore, his claim should not be law, unless the court is satisfied, by a clear preponderance of the evidence liberally the Workers’ Compensation Law in order to give the broadest
Id. at 177. We construe
as written and will not consider what the legislature might have said or add
Id. at 180. We interpret legislative intent from the statute
governed by the express statutory language and that which can be fairly
Id. The nature and extent of compensation is
the final arbiter of the intent of the legislature as expressed in the words of a N.H. 174, 177 (2008). On questions of statutory interpretation, this court is
de novo. Appeal of Jenks, 158
injury was filed within the two-year statute of limitations, Anheuser-Busch had decision appealed from shall not be set aside or vacated except for errors of shall be deemed to be prima facie lawful and reasonable; and the order or “[A]ll findings of the [CAB] upon all questions of fact properly before it his employment. This appeal followed.
On appeal, Gamas argues that: (1) regardless of whether his notice of
Anheuser-Busch had actual notice of his condition and its possible relation to required by RSA 281-A:19. It also found that Gamas failed to prove that interpreted to mean that
manner. On the other hand, RSA 281-A:19 and :20 might also reasonably be
Notice” referring to “[n]otice . . . in writing” as there is today. was repealed, there was no provision in the law pertaining to “Contents of from the Workers’ Compensation Law in 1983. However, when RSA 281:17 statute is ambiguous, and we look to legislative history to aid our analysis. reasonable interpretation of these statutory provisions, we conclude that the
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Workers’ Compensation Law in 1988. form prescribed by the commissioner,” and that it cannot be given in any other reasonably be construed to mandate that “[n]otice of injury” be “in writing on a conjunction with RSA 281-A:20, our Workers’ Compensation Law might
by such want, defect or inaccuracy.” The legislature eliminated this provision
and place of the accident.” RSA 281-A:20. Since there is more than one commissioner is the sole means of acceptable notice.
See N.H.H.R. Bills, HB 12 (1988). When
A:20. This provision was introduced as part of several amendments to the
See RSA 281-
“notice” to the employer within prescribed time limits. However, when read in
maintenance of proceedings unless the employer proves that he is prejudiced part: “No want, defect or inaccuracy of a notice [of injury] shall be a bar to the N.H. 465, 469 (1980). RSA 281:17 (1977) (repealed 1983) provided, in relevant injury and shall state the name and address of the worker injured and the date unequivocally mandate that written notice on a form prescribed by the actual notice in some circumstances. See Bowlan Lumber Co. v. Lemire, 120 statutory provision uses the word “shall,” its Prior to 1983, the Workers’ Compensation Law explicitly allowed for sentence structure does not injured and the date and place of the accident.” RSA 281-A:20. Although this employer of the injury and shall state the name and address of the worker Appeal of Ann Miles Builder, 150 N.H. 315, 319 (2003) (quotation omitted). liberally, resolving all reasonable doubts . . . in favor of the injured employee.” mindful that we construe provisions of the Workers’ Compensation Law Appeal of Malouin, 155 N.H. 545, 550 (2007). In doing so, however, “we are injured and that his injury may have been related to his employment. expressly excludes actual notice. It simply requires that the employee provide See
prescribed by the commissioner, that notice “shall apprise the employer of the
if written notice is provided to the employer on a form
injury in writing on a form prescribed by the commissioner shall apprise the
two years from when he knew or reasonably should have known that he was On its face, RSA 281-A:19 neither mandates written notice of injury nor
RSA 281-A:20 is entitled “Contents of Notice.” It provides: “Notice of
to notify his employer of his injury within two years of its occurrence or within benefits within three years of the injury, his claim could be barred if he failed A:21-a and RSA 281-A:19 provide that even if an employee filed his claim for possible relationship to the employment.” Id. When read together, RSA 281or by reasonable diligence should know, of the nature of the injury and its the record and, therefore, unreasonable.
Busch did not have actual notice within the two-year time limit was contrary to Gamas’ asbestos claim. Accordingly, the CAB’s factual finding that Anheuserthe hearing before the CAB, Vance conceded that he was “put on notice” of
health, safety and security resident manager, was present at the deposition. At amend the statute.
employment. By his own admission, Vance, Anheuser-Busch’s environmental, asbestos-related lung condition and that it was causally related to his commissioner be the exclusive means of acceptable notice, it is of course free to just three months later, in August 2004, indicating that he suffered from an
5
legislature intended that written notice on a form prescribed by the employment at Anheuser-Busch by May 23, 2004. Gamas gave a deposition
Gamas’ injury, we need not address Gamas’ remaining arguments. If the should have known of his claimed lung condition and its relationship to his
RSA 490:3, concurred. DALIANIS, J., concurred; BROCK, C.J., retired, specially assigned under
Reversed and remanded.
construction favorable to the claimant when statutory language is ambiguous.”
Because we hold that Anheuser-Busch had actual and timely notice of means of notice for all subsequent workers’ compensation claims. actual notice of Gamas’ injury. The CAB concluded that Gamas knew or
under RSA 281-A:19 and :20.
subsequent amendments. “As a matter of longstanding practice, we adopt a
that written notice on a form prescribed by the commissioner be the exclusive The record in this case reveals that Anheuser-Busch received timely I-II. The legislative record is inconclusive on whether the legislature intended “correct[ing] grammatically” what was in the prior version. Laws 1988, 194:1, employer’s actual notice of an employee’s injury is still sufficient lawful notice Appeal of Hiscoe, 147 N.H. 223, 230 (2001). We therefore hold that an
injury, previously allowed under RSA chapter 281, was eliminated by Accordingly, we are left to speculate about whether actual notice of
changing the meaning or substance of the law, but merely “clarif[ying]” and the legislature enacted the 1988 amendments, it stated that it was not