2009-362, Appeal of Michael Langenfeld

his overdue medical bills.

costs and applying the 2005 version of RSA 281-A:44 to award him interest on

resulted in paraplegia. The respondent, Liberty Mutual Insurance Company petitioner was twenty-one years old, he sustained a work-related injury that The record reveals the following facts. On June 20, 1990, when the

I. Background

version of RSA 281-A:44). We reverse and remand.

not entitled to be reimbursed for the $72,461.90 he incurred in legal fees and the New Hampshire Compensation Appeals Board (board) ruling that he was DALIANIS, J. The petitioner, Michael Langenfeld, appeals a decision of

brief and orally), for the respondent. Law Offices of John B. Schulte, of Manchester (John B. Schulte on the

orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Bernard & Merrill, PLLC, of Manchester (Eric P. Bernard on the brief and

(New Hampshire Compensation Appeals Board) APPEAL OF MICHAEL LANGENFELD page is: http://www.courts.state.nh.us/supreme.

No. 2009-362 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 ___________________________

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 ($687,500.00 less the sum of $229,166.67 and $8,818.04 and $240,184.37).

net amount of the settlement to the petitioner was, thus, $209,330.92 holiday. In December 2008, the board ruled that the carrier’s holiday was

$240,184.37 ($367,344.00 less the sum of $122,447.99 and $4,711.64). The incurred to secure the third party settlement and, as a result, the carrier’s $8,818.04). The total present value amount of the carrier’s lien, therefore, was (53.43% of $229,166.67), and its share of costs was $4,711.64 (53.43% of

value of the settlement. approval of the settlement until the sum of all payments due exceeded the net

compensation benefits for medical expenses as they continue to accrue.

compensation payments avoided under the ‘holiday.’” exceeds the sum of (1) compensation payments made . . . , and (2) rata share of attorney’s fees and expenses. payments only so long as the net amount recovered in the liability action . . . had already paid, the carrier was entitled to a lien of $367,344.00, less its pro exhausted. He also sought additional reimbursement for the legal fees he department of labor to determine when the carrier’s $209,330.92 holiday was calculated that the carrier’s share of the attorney’s fees was $122,447.99 On December 29, 2005, the petitioner sought a hearing before the

$209,330.92 (the net amount of the third party settlement). relieved of its liability for compensation payments from the date of the court’s Knapp, 149 N.H. at 741. In this case, the carrier’s “holiday” was equal to

(emphasis omitted). A carrier’s “holiday” is against payment of future

(2003). “[A] compensation carrier may take a ‘holiday’ from compensation the compensation, medical, hospital and remedial care for which the carrier “holiday” from liability. See Knapp v. Tenn. Gas Pipeline, 149 N.H. 740, 741 19 (1994). This period of time is commonly referred to as the insurer’s responsible for the accident. present value of the settlement) and $8,818.04 in costs. The federal court See Gelinas v. Sterling Indus. Corp., 139 N.H. 14, 18-

petitioner’s attorney’s fees and costs. As a result of the third party settlement, the carrier was temporarily

present value of $687,500.00. The federal court determined that, based upon

recover damages against various third parties whom he alleged were The petitioner claimed attorney’s fees of $229,166.67 (one-third of the

numerous prescription medications. present value of the settlement, the carrier was responsible for 53.43% of the court reasoned that because the carrier’s lien represented 53.43% of the

1994, the federal court approved a structured settlement, which had a then

In 1991, the petitioner brought a diversity action in federal court to

used a wheelchair and has required multiple medical procedures and (the carrier), was the employer’s insurer. Since the injury, the petitioner has fees incurred to secure the third party settlement. p. 3 10% on the amount of his overdue bills as well as on the amount of the legal

the third party settlement), the petitioner was entitled to interest at a rate of

pursuant to the version of RSA 281-A:44 in effect as of June 1994 (the date of $8,818.04, by .3044813, which equals $2,684.93. The board also found that, the board’s decision only for errors of law, or if we are satisfied by a clear $69,776.97, and multiplied the total costs incurred by the petitioner,

applicable interest rate was as set forth in RSA 281-A:44, II. and which then qualified for reimbursement.” The board also clarified that the “would only apply to out-of-pocket expenses which the [petitioner] paid first applied the 2005 version of the workers’ compensation act. We will overturn legal fees incurred by the petitioner, $229,166.67, by .3044813, which equals

requested an initial hearing and ruled that the 2005 version applied because this was when the petitioner had decided that the 1994 version applied; upon reconsideration, the board this appeal. At the parties’ request, the board stayed its decision pending the resolution of

pay interest at a rate of 10% on this amount.

281-A:44, V, the interest awarded to the petitioner on overdue medical bills decision requiring the carrier to pay him $72,461.90 in legal fees and costs and present value of the settlement, $687,500.00, the board multiplied the total The petitioner argues that the board erred when it reversed its prior amount of the carrier’s holiday, $209,330.92, was 30.44813 % of the total fees, and $2,684.93 was intended to reimburse him for costs. Because the II. Analysis

compensation act that applied to the petitioner’s case. The board originally

A:44, II (rate of interest shall be calculated at the same rate as for judgments).

of the workers’ compensation act, the board clarified that, pursuant to RSA

this amount, $69,776.97 was intended to reimburse the petitioner for legal

The board also reversed its decision regarding the version of the workers’

petitioner incurred. Accordingly, the board reversed its decision requiring the federal court’s decision with respect to the attorney’s fees and costs that the granted. Upon reconsideration, the board determined that it was bound by the The carrier filed a motion for reconsideration, which the board partially

(amended 2001, 2003, 2005). $72,461.90 for legal fees and costs incurred to secure the carrier’s holiday. Of See RSA 281-A:44 (1999)

The board also ordered the carrier to reimburse the petitioner

expenses reached approximately $209,000.00. exhausted on October 16, 2000, when the petitioner’s qualifying medical petitioner disputed the amount of the carrier’s asserted lien of $367,344.00,

p. 4 workers’ compensation benefits paid to [the petitioner].” Similarly, while the

paid in twenty years failed “to adequately provide for reimbursement of the years. The carrier contended that the petitioner’s proposal that the carrier be time of settlement or when he received his final lump sum payment in twenty

was whether the petitioner should be required to pay the carrier’s lien at the

the federal court’s order. carrier’s lien offset payments the carrier had already made and did not include

federal court’s order explains that, among the issues the court was to decide, remedial care already paid or agreed or awarded to be paid”). For instance, the entitled to a lien “to the extent of the compensation, medical, hospital, or other

it to pay these fees and costs. We disagree with the carrier’s interpretation of that an insurer’s ability to take a holiday from future compensation is of Several provisions in the federal court’s order make clear that the costs he incurred to secure the third party settlement. We have recognized meant to decide. Id. court decree or judgment is to be construed with reference to the issues it was with the primary purpose of the trial court’s decree. Id. As a general matter, a document. Id. at 703. We construe subsidiary clauses so as not to conflict construing a court order, we look to the plain meaning of the words used in the the extent of the eliminated liability was contingent in some respects.” de compensation insurer, in no way rendered less immediate or tangible because novo. In the Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008). In The interpretation of a court order is a question of law, which we review compensation insurer. That constitutes a present benefit redounding to the

obligation, but instead contends that the federal court decision already ordered fees and costs associated with the holiday. The carrier does not dispute this petitioner was not entitled to additional reimbursement for the legal fees and The carrier in this case appears to accept its obligation to pay a share of

(quotation and brackets omitted).

recovery results in a contemporaneous extinguishment of a liability of the

We first address whether the board erred when it ruled that the

A. Reimbursement for Legal Fees and Costs

burden of proof. See Appeal of Dean Foods, 158 N.H. at 471. reasonable. See RSA 541:13. As the appealing party, the petitioner bears the 541:13 (2007). The board’s factual findings are prima facie lawful and unreasonable. Appeal of Dean Foods, 158 N.H. 467, 471 (2009); see RSA preponderance of the evidence before us that the decision is unjust or share of fees and costs for its holiday. p. 5 and costs it has already paid pursuant to the federal court order include its

associated with it. Accordingly, we reject the carrier’s assertion that the fees

has entered into a third party settlement. RSA 281-A:13, IV provides:

carrier’s holiday or calculate the carrier’s pro rata share of the fees and costs

$209,330.92 holiday.

board over the division of attorney’s fees and costs when the injured employee

the petitioner’s fees and costs. At no time did the federal court discuss the as justice may require. of the settlement, the court ruled that the carrier was responsible for 53% of the employer or the employer’s insurance carrier and the employee lien of $367,344.00 represented approximately 53% of the total present value expenses and costs of action, including attorneys’ fees, between 5

determine the carrier’s pro rata share of the fees and costs associated with its

jurisdiction. Moreover, RSA 281-A:13, IV grants concurrent jurisdiction to the the final order indicated the federal court’s intent to assert continuing diversity jurisdiction terminated upon issuance of its final order. Nothing in

represented of the total present value of the settlement. Because the carrier’s superior court, as the case may be, shall order such division of

reverse the board’s decision on this issue and remand for the board to reimburse the petitioner for the fees and costs associated with the holiday, we Because we conclude that the federal court did not order the carrier to

the result and would like a new one.” To the contrary, the federal court’s

carrier’s pro rata share of fees and costs based upon the percentage the lien paragraph I, II, or III, the commissioner, the arbitrator, or the exercise in the future. As previously discussed, the federal court calculated the Whenever there is a recovery against a third person under rata share of fees and costs due for the holiday the carrier would be able to

“cannot be superseded because the Petitioner has many years later rethought that because the federal court “had jurisdiction to begin with,” this jurisdiction award the petitioner additional attorney’s fees and costs. The carrier asserts Alternatively, the carrier argues that the board lacked jurisdiction to

upon the value of its lien. The federal court did not consider the carrier’s pro

order, “[t]he statutory lien was created to prevent double recovery by providing

costs reveals that the court calculated the carrier’s pro rata share based only calculated the amount of the carrier’s pro rata share of attorney’s fees and The plain meaning of the section of the order in which the federal court

proceeds from third party tortfeasors.” (Emphasis added.) reimbursement to an employer (or the employer’s insurance carrier) from

made should be included in the lien. As the federal court explained in its the dispute centered upon whether certain payments the carrier had already directly.

p. 6 A:44, I, did not limit an interest award to amounts the injured employee paid injury.”

governs, it is because a statutory provision or other indication of legislative

2000 version of RSA 281-A:44, I). Additionally, the 2000 version of RSA 281- compensation case are determined by the law in effect on the date of the compute interest “from the date of injury.” RSA 281-A:44, I (1999) (hereinafter, on “that portion of any award the payment of which is contested,” and could

the injured employee in order to give the broadest reasonable effect to its interpretation include. When we have held that the law in effect on a date other than the date of injury RSA 281-A:44, II. for a recurring injury. Id.; see Appeal of Cote, 144 N.H. 126, 128-29 (1999). examining isolated words and phrases found therein. time of total disability, governs an employee’s entitlement to disability benefits that the law in effect on the date of the employee’s injury, rather than at the

Appeal of Silk, 156 N.H. 539, 541 (2007). For example, we have held

“As a general rule, the rights and liabilities of the parties in a workers’

that version of RSA 281-A:44, the board could award interest at a rate of 10% Appeal of Belair, 158 N.H. 273, 276 (2009).

liberally, resolving all reasonable doubts in statutory construction in favor of review the board’s factual findings deferentially, we review its statutory Id. Additionally, we construe the workers’ compensation statute what the legislature might have said or add words that the legislature did not “shall be calculated at the same rate as for judgments under RSA 336:1, II.” Id. We will not consider Moreover, pursuant to the 2005 version of RSA 281-A:44, the rate of interest examining the construction of the statute as a whole, and not simply by “shall be computed from the date of such payment.” RSA 281-A:44, V. must keep in mind the intent of the legislation, which is determined by (2003). While we give undefined language its plain and ordinary meaning, we of the statutory language. Appeal of Ann Miles Builder, 150 N.H. 315, 318 question of statutory construction, we begin our analysis with an examination statute considered as a whole. Id. When the issue raised presents a new effect when the carrier’s holiday expired in October 2000 should govern. Under is the final arbiter of the intent of the legislature as expressed in the words of a

de novo. Appeal of Jenks, 158 N.H. 174, 177 (2008). This court

Resolving this issue requires statutory interpretation. Although we

See id.

payable only on amounts which have been paid directly by the employee” and

The petitioner contends that the version of RSA 281-A:44 that was in

281-A:44, “interest on awards for medical, hospital, and remedial care shall be pursuant to the 2005 version of RSA 281-A:44. Under the 2005 version of RSA We next address whether the board erred when it awarded interest

B. Interest Award justify a departure from the general rule, we hold, as we held in p. 7 context of an award of interest in a workers’ compensation case that would 7 recovery was exhausted.” (Quotation and ellipses omitted.) which was on October 16, 2000, when the holiday from the third-party

contested).

comparable statutory provisions or indications of legislative intent” in the

apply the . . . statute in effect when [the carrier’s] obligation to pay[ ] arose

commissioner, on that portion of any award the payment of which was a permanent impairment award. entitled to 6% interest, computed from 30 days after award by the A:44 (Supp. 1989) (providing that if employee prevails on appeal, employee is (here June 1990) governs. Appeal of Silk, 156 N.H. at 541, 542; see RSA 281that the version of RSA 281-A:44 in effect as of the employee’s date of injury

apparent “is derived from statutory construction.” Because “[t]here are no governed by the law in effect on the date the permanency of loss becomes 156 N.H. at 541, our conclusion that a permanent impairment award is apply to this case. He asserts that our “prior decisions require that the Board 58; Petition of L’Heureux, 132 N.H. at 501. As we explained in Appeal of Silk,

version in effect as of the employee’s date of injury governed. award of interest under RSA 281-A:44. Rather, both addressed the amount of at 501. His reliance upon these cases is misplaced. Neither case concerned an Markievitz, 135 N.H. 455, 457-58 (1992), and Petition of L’Heureux, 132 N.H. The petitioner relies principally upon our decisions in included “the type and amount of benefits an injured worker may receive.” Petition of

The petitioner concedes the general rule, but contends that it does not

from disability benefits,” and, thus, applied the general rule that the statutory at 542. We saw “no principled reason to distinguish an award of attorney’s fees

that attorney’s fees and costs “are part of an overall legislative scheme” that We held that the 2000 version applied. Id. at 541, 542. We explained

“prevail,” entitling the employee to reasonable attorney’s fees and costs. Id. RSA 281-A:44, I, differed with respect to when an employee was deemed to 2000 (the date of her injury). Id. The 2000 version and the 2004 version of fees and costs relying upon the version of RSA 281-A:44, I, that was in effect in The board awarded her benefits in 2004. Id. Thereafter, the employee sought had suffered a compensable injury in 2000. Appeal of Silk, 156 N.H. at 540. Our decision in Appeal of Silk is dispositive. In that case, the employee

becomes apparent). impairment award is governed by law in effect on date permanency of loss 541; see Petition of L’Heureux, 132 N.H. 498, 500-01 (1989) (permanent intent requires us to depart from the general rule. Appeal of Silk, 156 N.H. at p. 8 A:44, V for “awards for medical, hospital, and remedial care.” RSA 281-A:44, I,

A:44, IV for “a scheduled permanent impairment” award; and (3) RSA 281-

RSA 281-A:44, III “on awards for disability indemnity benefits”; (2) RSA 281any award the payment of which is contested.” It is also available under: (1) fees and costs as approved by the board or court and interest on that portion of

compensation setting.” “inextricably intertwined with other substantive benefits in the workers’

employee, if such employee prevails, shall be entitled to reasonable counsel

compensation case affects the substantive rights of the parties and is

pursuant to RSA 281-A:44, II, V, our rationale in

this chapter which is appealed to the board or supreme court or both, the pertinent part: “In any dispute over the amount of the benefit payable under compensation setting.” version of RSA 281-A:44 pursuant to RSA 281-A:44, I(a), which provides, in I, were “inextricably intertwined with other substantive benefits in the workers’ Interest is available as a remedy to an injured employee under the 2005 substantive rights of parties in part because the remedies under RSA 281-A:44,

here. As with attorney’s fees and costs, an award of interest in a workers’

pursuant to RSA 281-A:44, I, and this case concerns an award of interest Although Appeal of Silk concerned an award of attorney’s fees and costs

Laws 2003, 99:2. We disagreed, holding that RSA 281-A:44, I, affected the substantive or procedural rights. costs, was remedial in nature and, thus, applied retroactively. Id. at 542; see things, changed the category of claimants entitled to collect attorney’s fees and argued that the 2003 amendment to RSA 281-A:44, I, which, among other Our decision in Appeal of Silk is instructive. In that case, the carrier

legislation is to promote justice. Id. applying them retroactively promotes justice. determination of fundamental fairness because the underlying purpose of all A:44, II, V was proper because these provisions are remedial in nature and final analysis, the question of retrospective application rests upon a case. Specifically, the carrier contends that retroactive application of RSA 281- Id. Nevertheless, in the application of a new law would adversely affect an individual’s substantive in nature, it may be applied to cases pending at the time of enactment. Id. If

case here, our interpretation turns upon whether the statute affects the parties’ as to whether a statute should apply prospectively or retrospectively, as is the prospectively. Appeal of Silk, 156 N.H. at 542. When the legislature is silent We have long held that statutes are presumptively intended to operate

not err when it retroactively applied the 2005 version of RSA 281-A:44 to this In arguing for a contrary result, the carrier contends that the board did p. 9 9

be awarded the petitioner for his overdue medical bills.

in nature and apply only prospectively.

1 p. 9 990 applies to this case, we remand to the board to determine the interest to

Accordingly, paragraphs II and V to RSA 281-A:44 are, therefore, substantive

RSA 281-A:44 and that, instead, the version of RSA 281-A:44 in effect in June

integral part of the substantive benefits available to injured employees. BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.

Having determined that the board erred when it applied the 2005 version of

In this way, interest, like an award of attorney’s fees and costs, is an

2003. See Laws 2003, p. 9 99:2. was amended and RSA 281-A:44, III, IV and V were added by the legislature in