2008-424, Appeal of Brian D. Gagnon & a.

The petitioners, Brian D. Gagnon and Douglas F. George,

brief), for the respondent. Law Offices of John B. Schulte, of Manchester (John B. Schulte on the to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes brief), for the petitioner. Stewart & Murphy, P.A., of Manchester (Edward W. Stewart, Jr. on the

(New Hampshire Compensation Appeals Board)

APPEAL OF BRIAN D. GAGNON & a.

No. 2008-424 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Compensation Appeals Board

___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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

Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as earnings’ over a period of 26 to 52 weeks . . . by that number of weeks.”

employment.”). In support, the petitioners cite

present, the statute computes the average weekly wage by dividing ‘gross capacity.

loss of earning capacity due to injury arising out of and in the course of

weekly wages” for compensation benefits. “Unless special circumstances are earning capacity, the resulting benefits should encompass all lost earning RSA p. 2 281-A:15 (Supp. 2008) dictates how to compute a worker’s “average “to funds which provide a direct financial benefit,” not the manner of benefit calculation. pertain only to the determination of whether an individual qualifies for benefits, Armstrong, 103 N.H. at 453-54. The respondent argues that those cases and earning capacity. See Appeal of Woodmansee, 150 N.H. 63, 67 (2003); held a determination of a disability involves a combined loss of work capacity decision is clearly unreasonable or unjust. Armstrong and later cases that reconsideration, which was denied, and appealed to this court. the petitioners have shown by a clear preponderance of the evidence that the the calculation of average weekly wages. The petitioners filed a motion for (“The Workmen’s Compensation Law is designed to afford compensation for packages offered by non-union employers, and were therefore not included in See Armstrong v. Lake Tarleton Hotel, 103 N.H. 450, 453 (1961)

of the Workers’ Compensation Law is to compensate employees who have lost should be based upon earning capacity. They argue that, because the purpose the petitioners argue that their average weekly wages should include payments We turn to the petitioners’ first argument, that average weekly wages

employee, but only to the extent the statutory language reasonably allows. Id. 435 ( p. 2 2003). We construe workers’ compensation statutes in favor of the

We will not set aside the board’s decision, except for errors of law, unless

Rather, the CAB found the payments were similar to traditional benefit and national pension funds.

advantage” under RSA p. 2 281-A:2, XV and therefore not wages. In the alternative, and (2) finding that Ouellette’s contributions to union funds are not a “similar average weekly wages upon pre-tax wages as opposed to total earning capacity; On appeal, the petitioners argue that the CAB erred by: (1) basing

“similar advantage” to those listed as wages in RSA p. 2 281-A:2, XV (Supp. 2008). as guidance, the CAB found that payments to various union funds were not a Using Morrison-Knudson Constr. Co. v. Director, OWCP, 461 U.S. 624 (1983), calculation of average weekly wages was to be based upon their pre-tax wages. The CAB rejected the petitioners’ arguments and found that the

petitioners appealed to the CAB and the cases were consolidated. international training fund, education fund and labor management fund. The by the employee because of the nature of the employment.

p. 3 employer to the employee to cover any special expenses incurred

statute considered as a whole. reasoning of the United States Supreme Court in

issue receive contributions that are deducted from an employee’s “wages,” the employer; but “wages” shall not include any sum paid by the gratuities received in the course of employment from others than fuel or a similar advantage received from the employer and and Maine Supreme Judicial Court in, respectively,

the final arbiter of the intent of the legislature as expressed in the words of a similar advantage received from the employer.” They distinguish the novo. N.H. Dep’t of Envtl. Servs. v. Marino, 155 N.H. 709, 713 (2007). We are The interpretation of a statute is a question of law, which we review de

adopt the reasoning in Morrison-Knudson. Co., 559 A.2d 774 (Me. 1989). The respondent, however, urges us to employer directly into the union funds. Additional union funds that are not at modified, 16 P.3d 583, 594 (Wash. 2001), and Ashby v. Rust Engineering Labor and Indus., 977 P.2d 668 (Wash. Ct. App. 1999), aff’d and rendered, the reasonable value of board, rent, housing, lodging, Cockle v. Dept. of U.S. 624, and urge us to follow instead the Washington Court of Appeals

Specifically, the petitioners argue that the fund contributions are “a

CBA, like the statute, differentiates between benefits and wages.

contributions at issue here is listed under “Benefits,” and is paid by the ($43.78 in George’s case) is labeled as the “total package.” Each of the fund petitioners worked supports the same conclusion. The $40.00 per hour rate “Wages” means, in addition to money payments for services

The petitioners next argue that union fund contributions are the type of claimant’s “net profit.”

the pre-tax hourly pay of $25.20 for Gagnon and $28.98 for George. Thus the concept from earning capacity. As we held in

Indeed, the collective bargaining agreement (CBA) under which the

would be the petitioners’ pre-tax hourly wage. See id.

not synonymous with wages or other benefits, but rather represents a

is based upon a claimant’s gross earnings, which is a separate and distinct at 67; Armstrong, 103 N.H. at 453. The calculation of those benefits, however, pertains only to a claimant’s eligibility for benefits. See Woodmansee, 150 N.H. We agree with the respondent that earning capacity, in this context,

same as earning capacity, and therefore includes payments to union funds. Carnahan, 149 N.H. at 435. The issue here is whether “gross earnings” is the legislature intended such benefits to be included within the “clear, readable p. 4 before the statute’s first enactment. It is, therefore, difficult to imagine that the Benefits similar to those at question in this case have been commonplace since

Laws 1988, 194:1(II); RSA 281-A:2 (amended 1999, 2001, 2005, 2007, 2008).

definition of wages. amend the statute since its enactment in 1927 to include such benefits in the are not included in the calculation of average weekly wages. fringe benefits as part of employee compensation, Congress had not seen fit to Because employer contributions to union funds are non-taxed benefits, they compensation benefits. contributions to union trust funds were not wages for purposes of computing and underlying policies all supported the conclusion that employer language for the benefit of citizens of this state who are affected by the law.” 1988 as “a rewriting of the workers’ compensation law in clear, readable which is nearly identical to that in RSA 281-A:2, XV. RSA 281-A:2 has been amended multiple times since it was enacted in Longshoremen’s and Harbor Workers’ Compensation Act, the language of Morrison-Knudson to be persuasive.

that, despite Congress’ almost certain knowledge of such employer-funded required to pay taxes upon the subsequent disbursement of some funds. Id. at 637. The Court gave great weight to the fact

gross income U.S. at 626, 629. The Court held that the Act’s language, legislative history, weekly wages would grant him a windfall. Morrison-Knudson, 461

wages. interpreted “similar advantage” in the definition of wages within the Morrison-Knudson, upon which both the CAB and respondent rely, have to purchase.”

report the additional $14.80 as income for tax purposes, though they are provision in after deducting business expenses). The petitioners here do not 435 (holding self-employed contractor’s average weekly wage is based upon

diem payments for tax purposes, including them in the calculation of average Id. at 448. We noted that, because the petitioner did not report the per expenses” and therefore excluded them from the calculation of average weekly

such as housing or utilities, were those “that the employee would otherwise statute excludes. Id. at 445. We stated that the included in kind advantages, in RSA 281-A:2, XV, and not the reimbursement for “special expenses” the case argued that per diem payments were the sort of in kind benefits included

Appeal of MacDonald, 152 N.H. 443 (2005). The petitioner in that

similar advantage received from the employer.” We interpreted the same We agree with the respondent that union fund contributions are not “a

(2005). subject to modification. Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78 Id. When the language of a statute is clear on its face, its meaning is not possible, construe that language according to its plain and ordinary meaning. 664, 666 (2006). We first look to the language of the statute itself, and, if of average weekly wages including only pension and annuity benefits also fails.

p. 5 or unjust. Necessarily, the petitioners’ argument for an alternative calculation

preponderance of the evidence that the CAB’s decision is clearly unreasonable 5

bargaining agreement.

claimant’s pre-tax pay, we find the petitioners have failed to prove by a clear

international training or labor management funds. of BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred.

survival”). Because we hold that average weekly wages are to be calculated using a

We therefore find little, if any, value in using Ashby as guidance. Ashby. See Hincks v. Robert Mitchell Co., 740 A.2d 992, 995 (Me. 1999). wage calculation employer contributions to pension, annuity, education, the statute shortly thereafter with the express purpose of reversing the effects

guidance. That decision interpreted a similar provision and found that “wages” The petitioners also suggest that we look to Ashby, 559 A.2d 774, for

the time of injury that are critical to protecting workers’ basic health and in-kind consideration that a worker must replace while disabled.” reasonably calculable in-kind components of a worker’s lost earning capacity at (supreme court modified definition of wages to include “readily identifiable and

petitioners in this case would not be able to include in their average weekly both the Washington Court of Appeals and Washington Supreme Court, the largely undermines the petitioners’ arguments. Indeed, under the reasoning of While we do not adopt the ultimate holding of Cockle, we believe its reasoning returning to work, such as pension benefits and vacation pay. Id. at 671. from wages those benefits that an employee could restore or replenish after Although that court held that health insurance met this definition, it excluded

“in kind” compensation falling within the statute included “only those items of nearly identical to RSA 281-A:2, XV. See id. at 670. That court held that the

Cockle, 977 P.2d at 672. The statutory definition of wages there was

health insurance payments constituted wages when calculating disability the reasoning of Cockle, in which the Washington Court of Appeals held that The petitioners argue that we should reject Morrison-Knudson and adopt

not see fit to include.”). neither consider what the legislature might have said nor add words that it did Knudson, 461 U.S. at 632; see also Dalton Hydro, 153 N.H. at 78 (“We will words within the original statute or subsequent amendments. See Morrisonlanguage” of RSA 281-A:2, XV, but nonetheless failed to put that intent into