2014-0583, Appeal of Raymond Cover

a part - time employee of the Commission. I n late May 2013, he sustained a The board found, or the record supports, the following facts. Cover was

agree, and, accordingly, vacate the boa rd’s order and remand. with RSA 281 - A:25 - a and is therefore invalid. See RSA 281 - A:25 - a (2010). We Compensation Law. On appeal, C over argues that Lab 504.05(b)(3) conflicts tim e employees are ineligible for reinstatement under the Workers’ New Hampshire Administrative Rules, Lab 504.05(b)(3), which states that part - Hampshire Liquor Commission (Commission). The board based its denial up on reinstatement to his former part - time position with the respondent, the New Hampshire Compensation Appeals Board (board) denying his request for HICKS, J. The p etitioner, Raymond Cover, appeals an order of the New

and David W. Johnston orally), for the respondent. Sulloway & Hollis, P.L.L.C., of Concord (Katherine DeForest on the brief,

orally), for the petitioner. Shaheen & Gordon, P.A., of Nashua (Jared O’Connor on the brief and

(New Hampshire Compensation Appeals Board) APPEAL OF RAYMOND CO VER

No. 2014 - 0583 Compensation Appeals Board

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, Concor d, 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

Cover’s appeal. We address the Commission’s jurisdiction al argument first. memorandum of law in which it contest ed our subject matter jurisdiction over However, p rior to oral argument, the Commission filed a supplemental On appeal, Cover again raises the issue of Lab 504.05(b)(3)’s validity.

the [New Hampshire] Supreme Court.” This appeal followed. constitutes an issue of statutory construction that is vested exclusively with between [RSA p. 2 281 - A:25 - a] and ad ministrative rule [Lab 504.05(b) (3)] mention Co ver’s termination. The board stated that “[a]ny i nco nsistency 504.05(b)(3) and Cover’s termination. In denying the motion, the board did not Cover was ineligible for reinstatement on two alternate grounds: Lab objection, the Commission requeste d that the board affirm its conclusion that Cover moved for rehearing, and the Commission objected. In its

entitled to be reinstated to his former part - time position.” order concludes by stating: “For the reasons given above the claimant is not for reinstatement. Any remedy in this case is legislative or regulatory.” The time employee. [Lab 504.05 (b)(3)] excludes part - time employees from eligibility “P ursuant to the Commission’s policy the claimant was classified as a part - Cover f or his failure to submit medical documentation by June 14, and states: officer’s decision. In its order, t he board notes that the Commission terminated because it conflicts with RSA p. 2 281 - A:25 - a. The board affirmed the hearing Cover appealed to the board, arguing that Lab 504.05(b)(3) is invalid

rendered part - time employees ineligible for reinstatement. reinstatement citing Lab 504.05 [(b)(3)], which, the hearing officer stated, expenses. However, the hearing officer denied Cover’s request for capacity rate benefits, and ordered that the carrier pay for his medical officer found that Cover’s i njury was compensable, awarded diminished earning his workers’ compensation claim and requested reinstatement. The hearing on June p. 2 27, which was granted. At the hearing, Cover contested the denial of Cover requested a hearing with the New Hampshire Department of Labor

Commission terminated Cover’s employment. received medical documentation concerning his injury. On June 17, the carrier denied Cover’s workers ’ compensation claim, stating that it had not to the Commission by June 14. On June 13, the Commission’s insurance Cover acknowledged that he did not submit any medical documentation

Commission on June 17, three days after the Commission’s deadline. 6, Cover gave the forms to his physician, who submitted them to the medical documentation by June 14 to justify his absence from work. On June on June 5 and warned him t hat he faced termination if he did not provide work - related injury. The Commission sent him workers’ compensation forms p. 3 3

We disagree. the only way that Cover could have challenged the validity of Lab 504.05(b)( p. 3 3). agency that adopted the rule.” A ccording to the Commission, this procedure is must be filed in the Merrimack county superior court, and it must name the The Commission contends that “[i] f that right is exercised, then the action [in the statut e] is meant to express a right. . . to challenge a rule’s validity.” RSA 541 - A:24 (emphasis added). The Commission argues that “the word ‘may’

pass upon the validity or applicability of the rule in question. rendered whether or not the plaintiff has requested the agency to made a party to th e action. A declaratory judgment may be the legal rights or privileges of the plaintiff. The agency shall be interferes with or impairs, or threatens to interfere with or impair, court if it is alleged that the rule, or its threatened application, action for declaratory judgment in t he Merrimack county superior The validity or applicability of a rule may be determined in an

the validity of an agency rule: RSA 541 - A:24 describes a mechanism by which parties may challenge

the statutory scheme.” Id. statutory language in light of the policy or purpo se sought to be advanced by Id. “This enables us to better discern the legislature’s intent and to interpret phrases in isolation, but rather within the context of the statute as a whole.” absurd or unjust result.” Id. “Moreover, we do not consider words and all parts of a statute together to effectuate its overall purpose and avoid an to include. Appeal of Local Gov’t Ctr., 165 N.H. 790, 804 (2014). “We construe legislature might have said or add language that the legislature did not see fit legislative intent from the statute as written and will not consider what the ascribe the plain and ordinary meanings to the words used.” Id. “We interpret 161 N.H. 659, 662 (2011). “We first examine the language of the statute and expressed in the words of the statute considered as a whole.” Appeal of Wilson, interpretation, “[w] e are the final arbiter of the intent of the legislature as novo.” Petition of Malisos, 166 N.H. 726, 729 (2014). In matters of statutory 541 - A:24. “Statutory interpretation is a question of law, which we review d e Addressing the Commission’s argument requires that we interpret RSA

before this court. the board, the Commission argues that his claim is therefore not properly See RSA 5 p. 4 41 - A:24 (2007). Because Cover instead brought his challenge before the agency that promulgated Lab 504.05(b)( p. 3 3), is joined as an opposing party. 504.05(b)(3): a declaratory judgment action in which the Department of Labor, mechanism by which Cover coul d have challenged the validity of Lab 480, 483 (2001). The Commission argues that RSA 541 - A:24 creates the only during the proceeding, including on appeal. . ..” Close v. Fisette, 146 N.H. “A challenge to subject matter jurisdiction may be raised at any time 4

which a party may challenge the v alidity of an agency rule: the party may under RSA 5 p. 4 41 - A:24, we have recognized at least one other mechanism by instance. These cases show that, apart from a declaratory judgment action action nor the body that adjudicated the petitioner’s challenge in the first even though the promulgating agency was neither a party to the petitioner’s that did not involve a request for declaratory judgment, we held a rule invalid Finally, in Reno v. Hopkinton, 115 N.H. 706, 706 - 08 (1975), an action

petitioner s join as a respondent the agenc y that promulgated the rule. request for declaratory judgment, but did so without requiring that the reviewed a challenge to a rule’s validity in a n action that did not involve a requested abatement. Id. at 660. Thus, in Appeal of Wilson, we not only abatement application rule, but the town that had denied the petitioner s ’ Appeal of Wilson, the respondent was not the agency that promulgated the petitioners ’ challenge to that rule’s validity. Id. at 663, 665. We note that, in application form as required by an agency rule. We affirmed, re jecting the petitioners’ requested tax abatement because they failed to sig n an abatement decision of the New Hampshire Board of Tax and Land Ap peals denying the In another case, Appeal of Wilson, 161 N.H. at 660 - 61, we reviewed a

court, and we affirmed. Id. at 609, 612. of Safety determined that the rule was valid, the petitioner appealed to this suspension of his driver’s license. Mooney, 160 N.H. at 608. The Department petitioner to undergo additional alcohol dependency treatment before lifting the Hampshire Department of Safety that permitted the agency to require the petitioner challenged the validity of a rule in a hearing before the New actions under RSA 5 p. 4 41 - A:24. In Petition of Mooney, 160 N.H. 607 (2010), the agency rules that the parties did not initially raise in declaratory judgment in consistent with our case law. In prior cases, we have reviewed challenges to Moreover, the Commission’s interpretation of RSA 541 - A:24 is

that party from filin g a declaratory j udgment action. challenge a rule’s validity, which, as provided by the statute, will not prevent rule.” Id. This sentence alludes to other mechanisms by which a party m ay not the plaintiff has requested the agency to pass upon the validity . . . of the sentence, which states: “A declaratory judgment may be rendered whether or See RSA p. 5 5 p. 4 41 - A:24. This interpretation is bolstered by the statute’s final mechani sm by which Cover could have challenged Lab 504.05(b)(3) ’s validity. the statute indicates that a declaratory judgment action is one possible omitted). Thus, contrary to the Commission’s interpretation, the word “may” in Appeal of Coos County Comm’rs, 166 N.H. 379, 386 (2014) (quotations rule of statutory construction” that “may” is permissive, not mandatory. Dictionary 1127 (10th ed. 2014). Moreover, in New Hampshire, it is a “general Dictionary are “[t]o be permitted to” and “[t]o be a possibility.” Black’s Law “may,” in RSA 541 - A:24. The first two definit ions of “may” in Black’s Law We take exception to the Commission’s understanding of the word, 5

unjust or unreasonable.” Appeal of Dean Foods, 1 p. 5 58 N.H. 467, 471 (2009); see satisfied by a clear preponderance of the evidence before us that the decision is “We will overturn the [board’s] decision only for errors of law, or if we are

reinstatement is a separate issue that we need not address in this appeal. accordingly. Whether Cover’s termination rendered him ineligible for for reinstatement on the basis of Lab p. 5 504.05(b)(3), we limit our review C ourt.” Because the board’s orders show that it determined Cover’s ineligibility construction that is vested exclusively with the [New Hampshire] Supreme administrative rule [Lab 504.05(b)(3)] constitutes an issue of statutory the rule, stating that “[a] ny inconsistency between [RSA 281 - A:25 - a] and termination. I n denying the motion, however, the board ’s order refers only to entitled to reinstatement o n two grounds,” Lab 504.05(b)(3) and Cover’s Commission request ed that the b oard “[a] ffirm its conclusion that [Cover] is not order his reinstatement. In its objection to Cover’s reconsideration motion, the support for the conclusion that the rule was the basis for the board’s refusal to The board’s order denying Cover’s motion for rehearing provides further

regulatory grounds, rather than on his termination. supports Cover’s argument t ha t the board based its denial of reinstatement on then states that “[a]ny remedy in this case is legislative or regulatory,” which found, renders part - time employees ineligible for reinstatement. The board emphasizing Cover’s part - time status and pointing to the rule, which the board Cover ineligible for rei nstatement. Instead, t he board concludes its order by paperwork on time, but it does not explicitly find that the termination rendered board’s first order mentions Cover’s termination for his failure to submit his reinstatement and the second denying Cover’s motion for rehearing. The To resolve this issue, we look to the board’s two orders: the first denying

is sue [was] the question of law,” that is, the validity of Lab p. 5 504.05(b)(3). he argues, it is “clear from reviewing the [b]oard’s decision that the decisive not deny his request for reinstatement on the basis of his termination. Rather, Commission by the June 14 deadline. He, instead, argues that the board did Cover does not deny that he failed to provide medical documentation to the comply with the attendance polic y applicable to all [Commission] employees.” language in the board’s order concerning Cover’s termination for “f ail[ure] to reinstatement on alternate grounds. Specifically, the Commission points to rule’s validity because the b oard determined that Cover was ineligible for T he Commission also argues that we need not reach the issue of the

Cover’s appeal. the Commission’s argument that we lack subject matter jurisdiction over way that Cover could have contested the validity of Lab p. 5 504.05(b)(3), we reject the C ommission’s argument that a declaratory judgment action was the only review. Finding no thing in the text of RSA 541 - A:24 or our case law to support challenge a rule in an administrative proceeding subject to our appellate p. 6 6

Law provides, in pertinent part, that “[e] mployee, with respect to public RSA 281 - A:25 - a, I. The “Definitions” section of the Workers’ Compensation

limitations. position, with reasonable accommodations for the employee’ s employee is not disabled from performing the duties of such such re instatement, if the position exists and is available and the to the employee’ s former position of employment upon request for who has sustained an injury, shall be reinstated by the employer An employee of an employer who employs 5 or more employees,

“employee[s]”: employees. RSA 281 - A:25 - a, I, sets forth the right of reinstatement for that the legislature intended to extend the right of reinstatement to part - time and remedial purpose of the Workers’ Compensation Law leads us to conclude Our analysis of the s tatute’s plain language in light of the overall scheme

Id. construing it, we resolve all reasonable doubts in favor of the injured worker.” rem edial purpose.” Appeal of Phillips, 1 p. 6 65 N.H. 226, 230 (2013). “Thus, when Compe nsation Law liberally to give the broadest reasonable effect to its standard principles of statutory interpretation, “[w] e construe the Workers’ interpretation. See Appeal of Wilson, 161 N.H. at 662. In addition to our reinstatement for part - time employees requires that we engage in statutory Addressing Cover’s argument that RSA 281 - A:25 - a provides a right of

they are intended to implement.” Id. (quotation omitted). administrative rules may not add to, detract from, or modify the statute which effec tuate the purpose of the statute.” Id. (quotation omitted). “Thus, and regulations is designed only to permit the [agency] to fill in the details to Mays, 1 p. 6 61 N.H. 470, 473 (2011). However, “[t]he authority to promulgate rules promulgate rules necessary for the proper execution of the laws.” Appeal of “[T] he legislature may delegate to administrative agencies the power to

denying reinstatement because the order rests up on an invalid agency rule. (Quotation omitted.) Thus, Cover asks that we overturn the board’s order reinstatement, the rule conflicts with the statute and is therefore invalid. defined by the employer’s personnel policy” from RSA 281 - A:25 - a’s right of argues that, because Lab 504.05(b)(3) excludes “part [-] time employee[s] as reinstatement in RSA 281 - A:25 - a extends to part - time employees. Then, he reinstatement proceeds in three parts. First, he contends that the right of Cover’s argument that the board erred in denying his request for

Cover bears the burden of proof. Id. reasonable.” Appeal of Dean Fo ods, 158 N.H. at 4 p. 7 71. As the appealing party, RSA 541:13 (2007). “The [board’s] factual findings are prima facie lawful and 7

policy.” N.H. Admin. Rules, Lab 504.05(b)(3). By stripping part - time reinstate “[a] part[-]time employee as defined by the employer’s personnel Lab 504.05(b) (3) provides that an employer shall not be obligated to

to part - time employees. therefore conclude that the right to reinstatement in RSA 281 - A:25 - a extends any reasonable doubt about the scope of that right in Cover’s favor. We intent to exclude part - time worke rs from the right of reinstatement, we resolve of the Workers’ Compensation Law nor the text of RSA 281 - A:25 - a evince s an Appeal of Phillips, 165 N.H. at 230. Given that neither the “Definitions” section purpose,” and we “resolve all reasonable doubts in favor of the injured worker.” Law, we read it “liberally to give the broadest reasonable effect to its remedial Finally, we reiterate that, when construing the Workers’ Compensation

Wilson, 161 N.H. at 662. the legislature did not see fit to include,” which we decline to do. Appeal of time workers would require us to “add language [to RSA 281 - A:25 - a, II(b) that] 245, 251 (2011) (quotation omitted). Reading RSA 281 - A:25 - a to exclude part exclusion of another.” Appeal of Camp aign for Ratepayers’ Rights, 162 N.H. exclusio alteriu s: Normally the expression of one thing in a statute implies the contravene the “familiar axiom of statutory construction, expressio unius est A:25 - a, II(b) to exclude part - time workers from the right of reinstatement would for reinstatement does not include part - time employees. Reading RSA 281 - Further, the list set forth in RSA 281 - A:25 - a, II(b) of employees ineligible

A:2, VII(a)(1). “employee” broadly as “[a]ny person in the service of an employer.” RSA 281 reinstated . . . upon request for such reinstatement.” The Law defines statute states that “employee[s]. . . who [have] sustained an injury, shall be argument that the right of reinstatement extends to part - time employees. The We conclude that the plain language of RSA 281 - A:25 - a supp orts Cover’s

the project is completed. (3) An employee employed on a construction project, when

the employee ’ s demand for reinstatement. employees at the time of the employee ’ s injury and at the time of (2) An employee whose employer employs 4 or fewer

for an injured employee. (1) An employee hired on a temporary basis as a replac ement

who are not eligible for reinstatement: (quotation omitted). RSA 2 p. 8 81 - A:25 - a, I I(b) lists three categories of employees express or implied voluntary contract of hire.” RSA 281 - A:2, VI I (a) (1) (2010) employment,” means “[a] ny person in th e service of an employer . . . under any 8

DALIANIS, C.J.