2010-233/2010-234 Appeal of the Hartford Insurance Company (New Hampshire Compensation Appeals Board)

Sulloway & Hollis, P.L.L.C.

(New Hampshire Compensation Appeals Board) APPEAL OF THE HARTFORD INSURANCE COMPANY

2010-234

Nos. 2010-233

Compensation Appeals Board

assembly. through July 17, 2006. Her job involved small motor subassembly and record. Hamel was employed by EAD Motors or its predecessor from 1973 The following facts were found by the CAB or are supported in the

Michael A. Delaney

vacate and remand. RSA 281-A:54, :55 (2010), for injuries to Claire Hamel and John Rygiel. We

attorney general, on the brief and orally), for the State. THE SUPREME COURT OF NEW HAMPSHIRE

Gudas on the brief, and Mr. Owers orally), for the petitioner.

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 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 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as deferential. Jenks p. 2 RSA 541:13 (2007). Accordingly, our review of the CAB’s factual findings is

A de employer’s insurance carrier, for reimbursement from the second injury fund. to his wrist. On July 14, 2009, the DOL denied Hartford’s request, as the On December 11, 2006, Rygiel sustained an employment-related injury

or unreasonable.

preponderance of the evidence before it, that such order is unjust except for errors of law, unless the court is satisfied, by a clear

return to work. in July 2009. On de the amputation of Rygiel’s toe, Mobilemed obtained legal advice prior to his request, as the employer’s insurance carrier, for second injury reimbursement standard of review is established by statute. Appeal of Jenks could not feel the heating pad as a result of his diabetic neuropathy. Following The New Hampshire Department of Labor (DOL) denied Hartford’s Hartford appeals both the Hamel and Rygiel decisions by the CAB. Our amputated due to a burn from a heating pad. According to his doctor, Rygiel liver disease. On March 5, 2003, Rygiel had the fifth toe on his right foot commercial vehicle driver examination in 2001, it was noted that Rygiel had has had Type II diabetes requiring the use of medication. As part of a mobile MRI unit, setting up the unit and breaking it down. Since 1994, Rygiel (Mobilemed) in 1994. His job involved driving a large truck to transport a order or decision appealed from shall not be set aside or vacated it shall be deemed to be prima facie lawful and reasonable; and the 2 [A]ll findings of the [CAB] upon all questions of fact properly before

however, de novo. Id.

Rygiel began employment with Mobilemed Support Services, LLC

177 (2008).

tunnel syndrome.” reimbursement. listed her diagnosis as “[c]ervical degenerative disc disease and left cubital novo appeal to the CAB also resulted in the denial of second injury fund second injury. The second injury fund certification by her attending physician Hamel continued to work for EAD until July 17, 2006, the date of her

reimbursement from the fund.

respirator because of her severe claustrophobia. notice of her disability. In 2005, EAD was notified that Hamel could not use a diagnosed with bipolar disorder. EAD Motors continued to employ her with In 1995, Hamel was temporarily disabled for psychiatric reasons and was p. 3 The State first contends that de

employment if the employee should become unemployed.” to constitute a hindrance or obstacle to obtaining employment or to obtaining that is congenital or due to injury or disease and that is of such seriousness as impairment,” for purposes of RSA 281-A:54, to mean “any permanent condition RSA 281-A:2, XIV, in turn, defines “[p]ermanent physical or mental

benefits for all injuries occurring on or after January 1, 1991. permanent partial, permanent total, medical, or rehabilitation paid on all compensation for temporary total, temporary partial, the employer shall be reimbursed 50 percent after the first $10,000 Provided, however, that prior to the first 104 weeks of disability, subsequent to those payable for the first 104 weeks of disability.

fund created by RSA 281-A:55 for all compensation payments

reimburse such employer or insurance carrier from the special

provided by this chapter. However, the commissioner shall carrier shall in the first instance pay all awards of compensation

subsequent injury alone, the employer or the employer’s insurance

impairment than that which would have resulted from the

Appeal of Gamas

greater by reason of the combined effects of the preexisting 1975, which results in compensation liability for a disability that is

resolve all reasonable doubts in favor of the injured worker.

employability context, of Hamel’s and Rygiel’s permanent conditions” and “then because the CAB “made factual findings regarding the gravity, in an the course of such employee’s employment on or after July 1, novo review is inappropriate here origin incurs a subsequent disability by injury arising out of and in impairment, as defined in RSA 281-A:2, XIV, from any cause or to its remedial purpose. Thus, when construing the statute, we

If an employee who has a permanent physical or mental Compensation Law in order to give the broadest reasonable effect

by reducing the employer’s liability for workers’ compensation claims.” Appeal retain employees with permanent physical or mental impairments of any origin “The second injury fund was created to encourage employers to hire or

RSA 281–A:54 and RSA 281-A:2, XIV (2010). RSA 281-A:54, I, provides: not see fit to include. We construe liberally the Workers’ of CNA Ins. Cos. legislature might have said or add language that the legislature did, 143 N.H. 270, 272-73 (1998). The statutes at issue here are

, 158 N.H. 646, 648 (2009) (citations omitted).

from the statute as written and will not consider what the a statute considered as a whole. . . . We interpret legislative intent arbiter of the intent of the legislature as expressed in the words of On questions of statutory interpretation, this court is the final policy sought to be advanced by the entire statutory scheme.” Goudreault v. p. 4 statutes in light of the legislature’s intent in enacting them, and in light of the employment should the employee become unemployed. “Our goal is to apply preexisting impairment would not be a hindrance or obstacle to obtaining to consider an employee’s past job performance as evidence that his or her The issue before us, then, is whether RSA 281-A:2, XIV allows the CAB

unemployed.”

employee’s ability to engage in employment. Special Fund Div. v. Indus. Com’n preexisting condition, or subjective, in the sense of looking to the particular statute is objective, in the sense of looking to the nature of the employee’s whether the hindrance or obstacle to reemployment test under that state’s find instructive two decisions of the Court of Appeals of Arizona addressing or obstacle to obtaining employment were the employees to become This case presents an issue of first impression in this jurisdiction. We evidence that their conditions were not so serious as to constitute a hindrance abilities of Ms. Hamel and Mr. Rygiel to maintain and perform their jobs as 4 State contends, “[i]t was entirely within [the CAB’s] prerogative to consider the required, as [Hartford] contend[s], to use solely an ‘objective’ test.” Rather, the of Ariz. ‘open labor market’ into the statute,” and argues that the CAB “was not, 897 P.2d 643, 647-48 (Ariz. Ct. App. 1994); Country Wide Truck v. The State counters that “Hartford has read the terms ‘objectively,’ and

Kleeman, 158 N.H. 236, 253 (2009) (quotation omitted).

“requires an objective contends that the determination of whether a condition satisfies the statute Hartford argues that the CAB erred in interpreting RSA 281-A:2, XIV. It

employment if they were . . . to become unemployed.” who had retained them, that they would face no obstacles or hindrances to their jobs and then assumed, from their work experiences with the employers entirely on the ability of Hamel and Rygiel to have maintained and performed then argues that the CAB, instead of conducting that analysis, “focused evidence before it, not a legal analysis of which law applied,” and that de condition could rise to the level of a hindrance or obstacle to employment.” It determinations required the CAB to undertake “only a factual analysis of the the open labor market would likely conclude that the underlying medical unemployed.” (Quoting RSA 281-A:2, XIV.) The State argues that these analysis to determine whether a prospective employer in

statutory interpretation we review de novo. interpretation of what that statutory language means. That is an issue of “hindrance or obstacle to obtaining employment,” RSA 281-A:2, XIV, is an determination that neither employee’s condition was serious enough to be a review is therefore not warranted. We disagree. Implicit in the CAB’s

obstacle to obtaining employment’ should Hamel or Rygiel become found that neither condition was so serious as to ‘constitute a hindrance or p. 5 Country Wide Truck

when making a decision to hire or retain the employee. and its extent would more likely than not significantly consider it whether the impairment is such that an employer who knew of it to [reimbursement] could be made. We think the inquiry should be hindrance but then not having employed the individual, no claim

employer’s reluctance to hire an employee with a preexisting condition

the specific statutory requirement addressed in the portions of Country Wide Only by denying employment could an employer establish We acknowledge that the Arizona statute differs from ours; nevertheless, the right to claim [reimbursement from the second injury fund]. We also note that some courts examining the issue of a prospective condition was not a hindrance to employment and thus would lose

an employer would demonstrate that the preexisting medical does not detract from the persuasiveness of its above-quoted reasoning. subjectively would be to defeat the statutory purpose. By hiring, for its interpretation of the statute, see impairment, to obtain reemployment. Moreover, to view each case p. 5 Country Wide Truck, 891 P.2d at 879, may have found the statutory schedule of conditions to be additional support the statutory requirement at issue here. That the Country Wide Truck court reemployment,” Special Fund Div., 897 P.2d at 647, is substantially similar to preexisting “impairment constitutes a hindrance or obstacle to employment or Truck and Special Fund Division that we find relevant, namely, that the

The State discounts the applicability of County Wide Truck based on the evidence made available to it.” [which] suggests that it is up to the [CAB] to make factual determinations, legislature did not provide the [CAB] with a specific schedule of conditions . . . enumerated conditions”). By contrast, the State argues, “the New Hampshire unemployed, and if a subsequent employer were informed of his nonindustrial preexisting physical impairment due to one of the statute’s injury fund under the applicable statute is that the employee have “a 897 P.2d at 647 (noting that one requirement for reimbursement from second impairments. See p. 5 Country Wide Truck, 891 P.2d at 878; Special Fund Div., specific” in that it contains a schedule of conditions that qualify as preexisting this case, arguing that “Arizona’s Second Injury Fund statute is robust and

employment will be able, in the event he were to become [I]t does not follow that one who is able to retain his current

explained: p. 5 Country Wide Truck, 891 P.2d at 878-79. The court in Country Wide Truck that the test was an objective one. Special Fund Div., 897 P.2d at 648; Indus. Com’n, 891 P.2d 877, 878 (Ariz. Ct. App. 1994). Both decisions ruled permanent condition, did not constitute a hindrance or obstacle to p. 6 It is found that Ms. Hamel’s bi-polar disorder, although a

Nagorka v. Goldstein

was designed to overcome this reluctance. may be reluctant to employ such persons; the Second Injury Law

necessary for Ms. Hamel’s particular disorder . . . .

subsequent injury alone. For these and related reasons, employers

certainly was not a problem; nor was accommodation ever certainly would be considered exemplary. Her bi-polar disorder

greater than the disability which would have resulted from the that, in the event of injury, their total permanent disability will be there may be a greater risk of injury to them or there may be a risk fact, able to do their work as well as those free from handicap but being retained in employment. Many handicapped persons are, in likely to be an adverse factor in the claimant’s being employed or

factory job, Ms. Hamel’s work record over 33 years at EAD

acceptable manner but whether the impairment is one which is

If an employer were looking for someone to do the same type of

prevent the claimant from doing his work in a normal and The question is not whether the impairment is one which would

Supreme Court, Appellate Division stated: 6 obstacle to obtaining employment,” RSA 281-A:2, XIV. As the New York found: determinative of whether the preexisting impairment is “a hindrance or abilities to perform their most recent jobs. With regard to Hamel, the CAB employee’s ability to perform his or her existing job, or one like it, is not constituted a hindrance or obstacle to employment were based upon their that the CAB’s findings that neither Hamel’s nor Rygiel’s prior conditions Examination of the CAB’s decisions in these consolidated cases reveals

We agree with the reasoning of these cases and conclude that the

omitted). obstacle to employment.” Unit Wall Company, 133 So. 2d at 307 (quotation condition may be classified as one that “is or is likely to be a hindrance or be the case if the employee had not been afflicted” with the condition, the required to compensate him for treatment or disability far greater than would employee with a preexisting condition, “on injury to the employee, may be Thus, the court in Unit Wall Company noted that if the employer of an the job. See, e.g., Unit Wall Company v. Speh, 133 So. 2d 304, 307 (Fla. 1961). employer to increased liability, regardless of whether the employee can perform recognize an economic disincentive to hiring an employee who may expose the recent jobs was error. We adopt the language of Country Wide Truck p. 7 The CAB’s reliance upon the employees’ abilities to perform their most

his regaining employment should he become unemployed. permanent condition, did not constitute a hindrance or obstacle to

It is found that Mr. Rygiel’s Type II diabetes, although a

two years after the diagnosis was made.

Rygiel passed his [Department of Transportation] physicals every diabetes treated with insulin which requires an exemption) and Mr.

obtaining a [commercial driver’s license] (as distinguished from by the [Department of Transportation] as an impediment to for his continued employment. Type II diabetes is not considered

DALIANIS, C.J.