2009-266, Petition of Michael Poulicakos

The petitioner, Michael Poulicakos, appeals a decision of the

the respondent. Foley Law Office, of Concord (Peter T. Foley on the brief and orally), for

New Hampshire, Inc., of Concord, on the brief and orally, for the petitioner. to press. Errors may be reported by E-mail at the following address: Michael C. Reynolds, general counsel, State Employees Association of

No. 2009-266 editorial errors in order that corrections may be made before the opinion goes Original 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 affirmed. p. 2 petitioner’s motion for reconsideration on October 17, 2007, and we summarily burden of proof that his stress injury was work-related.” The CAB denied the

accident or injury. The CAB concluded that the petitioner “failed to carry his

carrier had not seen fit to have a legitimate medical review.” concluded that the petitioner’s disability was not caused by a work-related

examiner’s recommendation. NHRS. The NHRS board of trustees (board) voted to accept the hearings regarding the petitioner’s medical history was “primarily speculative as the causation.” The two independent examiners, on the other hand, had findings of PTSD to be persuasive,” and that such findings were not binding on the kind of detail an expert would develop if asked for a full opinion on incident,” but noted that “[t]his was an intake assessment and does not contain

corrections officer.” The hearing officer noted, however, that cross-examination his PTSD diagnosis. She further stated that she “d[id] not find the [DOL]

petitioner’s doctor “reached a diagnosis of PTSD caused by the hanging

stress disorder] which arose out of and in the course of his employment as a be denied, noting aspects of the petitioner’s history that were inconsistent with uncontroverted in that the claimant has a condition of PTSD [post-traumatic January 9, 2007, a hearings examiner for NHRS recommended that the claim concluded that “[t]he medical opinion which has been submitted is independent evaluation conducted for NHRS. The CAB acknowledged that the Meanwhile, the petitioner’s ADR claim proceeded before NHRS. On evaluation performed for the workers’ compensation carrier, and the assessment of a doctor consulted by the petitioner, the independent psychiatric

temporary total disability.

NHRS.

he was alone for fear of seeing something similar.” The hearing officer

(CAB). The CAB reviewed three psychiatric experts’ reports: the intake The DOC filed a de novo appeal before the Compensation Appeals Board

and on November 14, 2006, awarded the petitioner compensation for

compensation and ADR claims proceeded concurrently before the DOL and benefits was granted and is not at issue in this appeal. The workers’ psychological. The petitioner’s application for ordinary disability retirement nightmares, and eventually developed a phobia against looking into cells when found an inmate hanging in her cell. . . . The claimant developed headaches, that “[t]he claimant suffered a life-changing incident on July 2, 1994 when he

The DOL held a hearing on the petitioner’s workers’ compensation claim

benefits and ADR benefits, describing the nature of his disability as On August 2, 2006, he applied to NHRS for both ordinary disability retirement overall statutory scheme and not in isolation. p. 3 not see fit to include. We interpret a statute in the context of the for duty as the natural and proximate result of either: legislature might have said or add language that the legislature did

where the member has been totally and permanently incapacitated intent from the statute as written and will not consider what the

discretion or acted arbitrarily, unreasonably, or capriciously.”

(CAB) and to the NH Supreme Court?

board of trustees on an accidental disability retirement allowance and ordinary meaning to the words used. We interpret legislative of the member’s employer, any member shall be retired by the (c)(1) Upon the application of a group II member in service or certiorari from this court. RSA 100-A:6, II provides, in part: presents a question of law that we review Id. (quotations and citation omitted). conclusion which cannot legally or reasonably be made, or abused its

overturned on appeal to the NH Compensation Appeals Board [NHRS].”

When examining the language of a statute, we ascribe the plain

prerequisite to the filing of an ADR claim.” The petitioner then sought a writ of Teachers, 158 N.H. at 456.

Resolving this question requires that we interpret the relevant statute, which

jurisdiction, authority or observance of the law, whereby it arrived at a

A:6, II (c) (1)-(3), even if that DOL Hearing Officer decision is of certiorari is the sole remedy available to a party aggrieved by a decision of binding on [NHRS] on the issue of causation pursuant to RSA 100- Is a [DOL] decision on causation pursuant to RSA 281-A:43,

The petitioner presents a single question:

[CAB], the applicant has failed to meet the ‘finding of compensability’ Farmington Teachers Assoc., 158 N.H. 453, 455 (2009) (quotation omitted). is the New Hampshire Supreme Court’s upholding of a denial of benefits by the Petition of “[b]ecause the effective decision in the applicant’s workers’ compensation case

standard of review is whether the board acted illegally with respect to

Petition of Concord Teachers, 158 N.H. 529, 533 (2009). “Our

“Because RSA chapter 100-A does not provide for judicial review, a writ

again accepted the recommendation of the hearings examiner, who found that On the petitioner’s motion for rehearing or reconsideration, the board member shall be entitled to a hearing before the board in order to

p. 4 member and by a physician designated by the board, then the after review of medical and factual information submitted by the board of trustees is unable to grant disability retirement benefits

the member’s total and permanent incapacity from duty. If the

that the work-related injury naturally and proximately resulted in injury of the type described in subparagraph (c)(1)(A)–(C), and also preponderance of the evidence the existence of a work-related

member seeking disability retirement benefits to prove by a

lump sum settlement, the board of trustees shall require the board after hearing pursuant to RSA 281–A:43. In the case of any decision of the labor commissioner or the compensation appeals

employer’s insurance carrier and not found compensable by final

injury claim that was at any time denied by the employer or the

trustees if the member enters into a lump sum settlement of an shall have the burden of proving causation before the board of such incapacity is likely to be permanent; (3) The member applying pursuant to subparagraph (c)(1)

commissioner of labor pursuant to RSA 281–A:43. that: employer, the employer’s insurance carrier, or the occupational disease has been found to be compensable by the (C) The incapacitating accident, trauma, degeneration, or XIII, or RSA 281–A:17. member’s conduct; and (B) The member did not intend for injury to result from the

incapacitated for the further performance of duty and that (A) The member is found to be mentally or physically

(2) The provisions of subparagraph (c)(1) shall apply provided

of employment as defined by RSA 281–A:2, XI, RSA 281–A:2, (C) Any occupational disease arising out of or in the course

in the course of employment; or while in the actual performance of duty, or arising out of and (B) Repeated trauma or gradual degeneration occurring

duty at some definite time and place; or (A) An accident occurring while in the actual performance of work-related injury.”

p. 5 A:6, II(c)(1) “that the member’s total and permanent incapacity be caused by a subpart (C) serves as a proxy for the determination required under RSA 100- II(c)(2). Viewed in context, the finding of compensability required under

be found compensable for purposes of workers’ compensation. RSA 100-A:6,

appeal. intentional injuries, and subpart (C) requires that the incapacitating condition II (c) (2) (C)” that a DOL finding of compensability survive an administrative requires a finding of permanent incapacity for duty, subpart (B) excludes this case was not final, “there is absolutely no . . . requirement in RSA 100-A:6, for the award of an ADR allowance are met. Thus, section II(c)(2), subpart (A)

100-A:6, II(c)(1);

accident or work-related trauma, degeneration or occupational disease. RSA

ultimate conclusion on compensability determined on the final appeal. The that the member’s total and permanent incapacity be caused by the workfinding of compensability at any level in the DOL proceedings, regardless of the comparable provision in RSA 100-A:6, I(c)). commissioner of labor pursuant to RSA 281–A:43” requires only a single Petition of Bailey, 146 N.H. at 199 (discussing

incapacitated for duty as the natural and proximate result of either” an on-duty

in order to determine the intent of the legislature in this regard.” later overturned on appeal. “We must therefore look to the statute as a whole the plain language of the comparable provision for group I employees “requires

see Petition of Bailey, 146 N.H. 197, 199 (2001) (noting that compensable by the employer, the employer’s insurance carrier, or the II(c)(2)(C).

“found to be compensable by . . . the commissioner of labor,” in RSA 100-A:6, allowance to any group II member who “has been totally and permanently As a whole, RSA 100-A:6, II evinces the intent to provide an ADR

statute on other grounds. Brickmaster v. Town of Salem, 133 N.H. 655, 660 (1990), superseded by

must be final or, as argued by the petitioner, may be an intermediate finding 891, 894 (1978). That language itself does not indicate whether the finding

See Pandora Indus., Inc. v. State Dep’t of Revenue Ad., 118 N.H. 100-A:6, II(c)(2)(C) that the disabling condition “has been found to be

be work-related and compensable. He argues that the requirement in RSA Our task is to determine what the legislature meant by the language, the DOL hearing officer’s November 14, 2006 decision finding his condition to

The petitioner contends that under RSA 100-A:6, II(c), NHRS is bound by

RSA 100-A:6, II(c) (Supp. 2009).

benefits. determine whether the member qualifies for disability retirement p. 6 RSA 100-A:6, II(c)(3), and argues that “[t]here would be absolutely no need for

awards, 6

settlements, superfluous. He points to the use of the phrase “final decision” in

determinations are for the legislature.

the precise extent to which subsequent reviews of workers’ compensation

would determination renders RSA 100-A:6, II(c)(3), dealing with lump sum finding of compensability referred to in RSA 100-A:6, II(c)(2) to be a final be construed so as to lead to . . . absurd consequences.” produces an absurd result in that “many The petitioner further argues that an interpretation that requires the

compensation), may affect ADR status. We need only note that such policy statute.

see e.g., RSA 281-A:48 (1999) (providing for review of eligibility for

over causation at the DOL.” We need not determine for purposes of this appeal intend that accidental disability retirement applicants not have to keep fighting He contends that “[t]he legislature could very well have, and apparently did, language,” never be able to assume their disability determination was permanent.” retirement applicants, who have presumably proven their case at the NHRS,

in mind the “fundamental” principle that “whenever possible, a statute will not The petitioner argues, to the contrary, that NHRS’s interpretation word “final” into the statute, a result we generally avoid.

any way have been within the intention of the legislature when enacting” that expressed in RSA 100-A:6, II(c), and we agree with NHRS that it “could not in determination of compensability, is contrary to the legislative purpose treating as controlling for purposes of RSA 100-A:6 an overturned DOL Academy v. Exeter, 92 N.H. 473, 478 (1943). The petitioner’s interpretation, of the language used, the reasonable meaning is to be adopted.” Trustees &c. redraft a statute to make it conform to an intention not fairly expressed in its 209, 211 (1954). Thus, “as between a reasonable and unreasonable meaning

the legislature or repugnant to the context of the same statute”). We also bear subsequent appeal. We acknowledge that such an interpretation reads the. . . unless such construction would be inconsistent with the manifest intent of 100-A:6, II(c)(2)(C), must be read to refer to a final finding, undisturbed by a 21:1 (2000) (setting forth rules to be followed in the “construction of all statutes language “found to be compensable by . . . the commissioner of labor,” RSA Personnel, 158 N.H. 338, 346 (2009) (quotation and brackets omitted). Cf. RSA of the statute to that intention,” State Employees Assoc. of N.H. v. N.H. Div. of statute, words may be modified, altered, or supplied so as to compel conformity omitted), “when the intention of the Legislature can be ascertained from the

Blanchard v. Blanchard, 133 N.H. 427, 431 (1990) (quotation

add language the legislature did not include). Nevertheless, while “[w]e cannot Farmington Teachers, 158 N.H. at 456 (when interpreting a statute we will not

disabilities caused by work-related injuries qualify for an ADR allowance, the We conclude that to give effect to the legislature’s intent that only p. 7 7

superfluous to RSA 100-A:6, II(c)(2)(C). NHRS. Because RSA 100-A:6, II(c)(3) has independent applicability, it is not granted an ADR if the claimant satisfies his burden of proving causation before

concurred.

finding by NHRS. Under RSA 100-A:6, II(c)(3), such claimants may still be

BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ.,

the final finding of compensability by the DOL that serves as a proxy for such a who are not covered under paragraph II(c)(2)(C) specifically because they lack applies to certain claimants who have entered into lump sum settlements and threshold section, 100-A:[6], II (c) (2) (C).” We disagree. RSA 100-A:6, II(c)(3) this language if a final finding of compensability was already required in the