2010-811 Appeal of New Hampshire Department of Corrections (New Hampshire Compensation Appeals Board)

Law Office of Leslie H. Johnson, PLLC

(New Hampshire Compensation Appeals Board)

No. 2010-811

Compensation Appeals Board

at his DOC job. The insurer denied the claim on January 25, 2008, on the emotional injuries on August 18, 2007, because of harassment and retaliation workers’ compensation claim in January 2008, alleging that he suffered The following facts are derived from the record. The claimant first filed a

2009. We affirm. ___________________________ ongoing temporary total disability indemnity benefits beginning September 17, Board (CAB) that the petitioner, Michael Whitaker (claimant), was entitled to insurer), appeal the decision of the New Hampshire Compensation Appeals Corrections (DOC) and Liberty Mutual Insurance Company (collectively, the DALIANIS, C.J. The respondents, New Hampshire Department of

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

THE SUPREME COURT OF NEW HAMPSHIRE Snyder on the brief, and Mr. Owers orally), for the respondents.

Johnson on the brief and 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 p. 2 22 as 2

See demonstrated that it preserved any issues related to the writ for our review. discrimination under state and federal statutes. However, the insurer has not 15, p. 2 2010, against the State and the DOC, seeking damages for retaliation and record on appeal with a writ the claimant filed in superior court on September On June 15, 2011, we granted the insurer’s motion to supplement the

superior court writ. Accordingly, we decline to consider the parties’ arguments not show that the insurer ever alerted the CAB to the fact of the claimant’s administrative claim filed with the human rights commission. The record does its October 6, p. 2 2010 motion for reconsideration were based upon the 10(1)(i). The record on appeal shows that the insurer’s motion to dismiss and Appeal of Bosselait, 130 N.H. 604, 606-08 (1988); see also Sup. Ct. R.

termination, the claimant waived his claim for increased benefits. See June p. 2 2008. The insurer argued that by filing a statutory claim for wrongful seeking damages for his allegedly wrongful discharge from DOC employment in had filed a claim with the New Hampshire Commission for Human Rights, to dismiss the claimant’s request for increased benefits because, in 2008, he appeal followed. On August 26, 2010, the insurer filed a motion in the CAB proceedings work injury. The insurer unsuccessfully moved for reconsideration, and this he had proved that his hospitalization was related to his original August 2007 disability indemnity benefits from his September 2009 hospitalization because to dismiss, deciding that the claimant was entitled to ongoing temporary total 281-A:8, III (2010). On October 6, 2010, the CAB denied the insurer’s motion

January p. 2 2010; the claimant appealed to the CAB. injury. A department of labor hearing officer ruled in the insurer’s favor in demonstrate that his hospitalization was related to his August 2007 work request on October 15, 2009, on the ground that the claimant had failed to psychotic features.” See RSA 281-A:28, :48 (2010). The insurer denied this was hospitalized for “[m]ajor depressive disorder, recurrent, severe, with higher temporary total disability rate beginning September 17, 2009, when he October 2, 2009, the claimant sought to have his benefits increased to the The insurer did not appeal the CAB’s June 16, 2009 decision. On

partial disability benefits “continuing after October p. 2 20, 2008.” motion for clarification, the CAB explained that he was entitled to temporary 281-A:31 (2010). On February 2, 2010, in response to the claimant’s second he was entitled to benefits at the temporary partial disability rate. See RSA August 14, 2009, in response to the claimant’s motion, the CAB clarified that before a department of labor hearing officer. See RSA 281-A:16 (2010). On to work, through “at least” October 20, 2008, the date of the initial hearing awarding him benefits from October 24, 2007, the date he was deemed unable employment. On June 16, 2009, the CAB ruled in the claimant’s favor, ground that the claimant’s injuries were not causally related to his other state or otherwise: p. 3 at common law or by statute or provided under the laws of any or legal representatives, to have waived all rights of action whether chapter and, on behalf of the employee or the employee’s personal

Appeal of Hartford Ins. Co. RSA 541:13 (2007). Thus, we review the CAB’s factual findings deferentially. conclusively presumed to have accepted the provisions of this

I. An employee of an employer subject to this chapter shall be or unreasonable. 3

pertinent part: preponderance of the evidence before it, that such order is unjust erred when it denied the insurer’s motion to dismiss. RSA 281-A:8 provides, in except for errors of law, unless the court is satisfied, by a clear Compensation Law, RSA 281-A:8 (2010), the insurer first argues that the CAB

order or decision appealed from shall not be set aside or vacated Relying upon the exclusive remedy provision of the Workers’ it shall be deemed to be prima facie lawful and reasonable; and the [A]ll findings of the [CAB] upon all questions of fact properly before

whole. Lacasse v. Spaulding Youth Ctr. intent of the legislature as expressed in the words of a statute considered as a On questions of statutory interpretation, we are the final arbiter of the injured worker. Id. Our standard of review is statutory: Thus, when construing it, we resolve all reasonable doubts in favor of the liberally to give the broadest reasonable effect to its remedial purpose. Id. 158 N.H. 646, 648 (2009). We construe the Workers’ Compensation Law add language that the legislature did not see fit to include. Appeal of Gamas, statute as written and will not consider what the legislature might have said or meanings to the words used. Id. We interpret legislative intent from the examine the language of the statute and ascribe the plain and ordinary

interpretation de novo. Id. , 162 N.H. 91, 93 (2011). We review its statutory

(1999). dismiss his superior court writ. See Appeal of Savage, 144 N.H. 107, 112 constructive discharge or that the CAB erred by not requiring the claimant to such as its contention that the claimant’s original work-related injury was for consider arguments that the insurer raised for the first time at oral argument, with regard to the claimant’s superior court writ. We, likewise, decline to p. 4 Workers’ compensation is an employee’s exclusive

compensation allegedly caused by such termination or discharge.

be deemed to have waived claims under this chapter for wrongful termination or constructive discharge, the employee shall under common law or other statute to recover damages for such or other statute. Similarly, if a former employee brings an action wrongful termination or constructive discharge under common law chapter, and to have waived rights to recover damages for such

employee shall be deemed to have elected the remedies of this

by such wrongful termination or constructive discharge, the

under this chapter for compensation for injuries allegedly caused

from, employment. However, if a former employee makes a claim

damages for wrongful termination of, or constructive discharge

employee may have under common law or other statute to recover III. Nothing in this chapter shall derogate from any rights a former

argument succeeds only if the claimant attempted to obtain both claimant waived his claim for increased workers’ compensation benefits. This an administrative claim of discrimination alleging wrongful termination, the request for increased disability benefits. The insurer contends that having filed 2008 administrative claim alleging wrongful discharge barred his October 2009 The insurer argues that, pursuant to RSA 281-A:8, III, the claimant’s

Both of his workers’ compensation claims, the first filed in January 2008 and compensation benefits for his June 2008 discharge from DOC employment. There is no evidence in the record that the claimant ever sought workers’

wrongful termination. Accordingly, the insurer’s argument fails. claimant has not brought a workers’ compensation claim for his allegedly wrongful termination. However, our review of the record reveals that the compensation benefits and remedies under other laws for his allegedly . . . . workers’

Compensation Law and some other law. some other law, but may not bring such a claim under both the Workers’ constructive discharge either under the Workers’ Compensation Law or under RSA 281-A:8, III, an employee may elect to bring a claim for wrongful or termination” or “constructive discharge.” See Lacasse, 154 N.H. at 251. Under exception to the workers’ compensation exclusivity bar for claims of “wrongful of Center, 152 N.H. 389, 394-95 (2005). RSA 281-A:8, III contains a limited . . . insurance carrier.” RSA 281-A:8, I (emphasis added); see Tothill v. Estate action whether at common law or by statute . . . [a]gainst the employer or [its]

. . .

(a) Against the employer or the employer’s insurance carrier p. 5 5

argues that the CAB erred when it denied the insurer’s motion in Relying upon RSA 281-A:38 (2010) (amended 2011), the insurer next

Mart, Ph.D., ABPP. The insurer argues that Dr. Mart’s report and testimony exclude the report and testimony of the claimant’s medical expert, Eric G.

dismiss his currently pending writ. administrative claim of discrimination or whether the superior court should whether the human rights commission should have dismissed the claimant’s claimant’s workers’ compensation claim to go forward. It does not concern opinion on it. The instant appeal concerns only the CAB’s decision to allow the superior court writ is required is not properly before us, and we express no and intentional infliction of emotional distress). Whether dismissal of the compensation is employee’s exclusive remedy against employer for negligent see also Karch v. Baybank FSB, 147 N.H. p. 5 525, 529-30 (2002) (workers’ employee’s exclusive remedy for negligent supervision claim against employer); wrongful or constructive discharge. See id. (workers’ compensation is exclusive remedy for all claims against an employer or its insurer except As previously explained, workers’ compensation provides the claimant’s remedy would not be dismissal of the claimant’s workers’ compensation claim. his discharge. Assuming, without deciding, that this is the case, the proper law remedies for the retaliation and discrimination he allegedly suffered before of discrimination and/or superior court writ has sought statutory or common The insurer next contends that the claimant in his administrative claim

A:8, III does not bar the claimant’s workers’ compensation claims. October 2009 workers’ compensation claims. Therefore, we hold that RSA 281of discrimination, he did not seek such damages in his January 2008 and may have sought damages for wrongful termination in his administrative claim benefits because of his discharge from employment. Thus, while the claimant asked to decide whether the claimant is entitled to workers’ compensation There is no evidence in the record before us that the CAB has ever been

his original work injury. CAB decided that the claimant was still entitled to disability benefits related to medical condition and the original August 2007 work injury. Accordingly, the reasoned, there was no break in the causal connection between the claimant’s to the 9/17/09 hospitalization for recurrence of depression.” Thus, the CAB cured or stabilized during the almost two years from the [original] date of injury 2010 decision, the CAB decided that the claimant’s medical condition “was not claimant “remained disabled” as a result of this initial injury. In its October employment, and that from October 2007 until “at least” October 2008, the that the claimant’s August 2007 injury was legally and medically caused by his In its June 2009 decision, which the insurer did not appeal, the CAB found the second in October 2009, sought benefits related to an August 2007 injury. p. 6 6

Affirmed

providers conducting independent medical examinations. the requirements set forth in RSA 281-A:38, II apply only to health care and testimony of his own medical expert. Contrary to the insurer’s assertions, hold that the CAB did not err when it allowed the claimant to submit the report Based upon the plain meaning of RSA 281-A:38, read as a whole, we

DUGGAN, HICKS, CONBOY and LYNN, JJ., concurred.

professional requirements. provider conducting independent medical examinations” must meet certain at the claimant’s behest. RSA 281-A:38, II provides that “[a]ny health care medical examinations,” meaning medical examinations that are not conducted. the employer or ordered by [the CAB],” RSA 281-A:38, I, as “independent Further, RSA 281-A:38, II refers to medical examinations “requested by

employer or ordered by the CAB. RSA 281-A:38, I (emphasis added). examination” – that is, at the examination conducted at the request of the health care provider designated and paid by himself or herself present at such the employee.” It further explains that the employee has “the right to have a the employer” and conducted “at a time and place reasonably convenient for explaining that the medical examinations to which it refers must be “paid by conducted by the claimant’s own experts. RSA 281-A:38, I, makes this clear by A:38, I (emphasis added). They do not apply to medical examinations examinations “requested by the employer or ordered by [the CAB].” RSA 281requirements regarding medical expert qualifications apply only to medical The insurer’s reliance upon RSA 281-A:38 is misplaced. The statutory

requirements of RSA 281-A:38, II. should have been excluded because his qualifications do not satisfy the