2025 N.H. 40, Appeal of State of N.H. (Adjutant General)

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

orally), for the petitioner. Bernard & Merrill, PLLC, of Manchester (Kevin W. Stuart on the brief and

(New Hampshire Compensation Appeals Board)

APPEAL OF STATE OF NEW HAMPSHIRE (ADJUTANT GENERAL)

Citation: Appeal of State of N.H. (Adjutant General), 2025 N.H. 40 Case No. 2024 - 0471 Compensation Appeals Board

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

put him in the position where he in fact did contract ICC cancer.” Finally, the preponderance of the evidence that [the decedent’s] regular firefighter duties the CAB concluded that the widow “met her burden under RSA p. 2 281 - A:2, by a establish medical causation b y a preponderance of the evidence.” Ultimately, medical expert “presented a credible chain of exposures and risk factors t hat cancer.” With respect to medical causation, the CAB found that the widow’s decedent’s] service as a firefighter as the basis for the sudden emergence of ICC expert reports indicate there are multiple potential exposures in [the respect to legal causation, the CAB found that “reasonable testimony and presumption that cancer in firefighters is work related. In addition, with [¶6] The CAB found that the widow is entitled to the prima facie

supported than was Pulde’s opinion. The CAB found that the scientific basis for Cochran’s opinion was better presented a medical report on cancer development and ICC from Dr. Pulde. essential job functions of his long career as a firefighter.” The employer contributed to by his exposures to multiple class I carcinogenic agents in the [the decedent’s] cholangiocarcinoma of the ICC type is causally related and Cochran’s medical opinion that “[t]o a reasonable degree of medical certainty, specialist in internal and occupational medicine. The CAB relied upon [¶5] At the hearing, the widow presented testimony from Dr. Cochran, a

the CAB and the CAB held a hearing. and then the D epartment of L abor, denied the claim. The widow appealed to workers’ compensation death benefits o n January 17, p. 2 2023. The employer, and LODD benefits were ordered to be paid. T he widow then requested in Line of Duty). Although benefits were initially denied, the widow appealed, b enefits. See RSA 21 - I:29 - a (Supp. 2024) (Death Benefit for Employees Killed [¶4] I n April 2020, t he widow applied for “l ine of d uty” d eath (LODD)

pursue t he claim further. The decedent died from cancer on January p. 2 23, 2020. benefits were denied by the employer, however, and the decedent did not behalf of the decedent, to the Department of Labor. W orkers’ compensation duct cancer. Around this time, the employer submitted a report of injury, on condition later diagnosed as intrahepatic cholangiocarcinoma (ICC), or bile [¶3] On February 15, 2019, the decedent first sought treatment for a

found to be cancer free. decedent began working at Pease Tradeport, he was medically examined and Although the decedent previously smoked, he stopped in p. 2 2000. When the New Hampshire (Adjutant General) was his employer at Pease Tradeport. 2008, h e also worked full time at P ease Tradeport in Portsmouth. T he State of around 200 2 and then began working full time around 2008. Starting around volunteer firefighter with the Farmington and Mid d leton Fire Department s undisputed by the parties. The widow’s husband (the decedent) started as a [¶2] The following facts were found by t he CAB or are otherwise p. 3 3

18 months after the claimant receives notice that the claim has been denied by barred unless the claimant petitions for a hearing under RSA 281 - A:4 p. 3 3 within rehabilitation, medical benefits, or death benefits under this chapter shall be [¶10] RSA 281 - A:42 - d provides in part: “C ompensation for disability,

reasons that follow, we agree with the widow. claim, and thus her claim was not time - barred by RSA 281 - A:42 - d. For the claim for death benefits under RSA 281 - A:26 is distinct from the decedent’s continuation of the decedent’s claim for benefits. The widow argues that her [¶9] The employer argu es that the widow’s claim for benefits i s a

10, ¶10. to its remedial purpose. Appeal of Estate of Menke, 177 N.H. at __, 2025 N.H. the Workers’ Compensation Law liberally to give the broadest reasonable effect or purpose sought to be advanced by the statutory scheme. Id. We construe the legislature’s intent and to interpret statutory language in light of the policy isolation, but in the context of the statute as a whole in order to better discern avoid an absurd or unjust result. Id. We consider words and phrases not in construe all parts of a statute together to effectuate its overall purpose and to have said or add language that the legislature did not see fit to include. Id. We interpret the statute as written and will not consider what the legislature might an d ordinary meaning. Appeal of Vasquez, 175 N.H. 450, 45 p. 3 3 (2022). We the statute itself, and, if possible, construe that language according to its plain 10, ¶10. In matters of statutory interpretation, we first look to the language of review de novo. Appeal of Estate of Menke, 177 N.H. __, __ (2025), 2025 N.H. interpretation. The interpretation of a statute is a question of law, which we t ime - barred by RSA 281 - A:42 - d. To do so, we must engage in statutory [¶8] We first address the employer’s argument that the widow’s claim is

I. RSA 281 - A:42 - d

record. Id. determine whether the findings are supported by competent evidence in the found differently than did the CAB, or to reweigh the evidence, but rather to CAB’s factual findings, our task is not to determine whether we would have unreasonable or unlawful.” Id. at 144 (quotation omitted). In reviewing the rests upon the appealing party to show that these findings are “clearly review of the CAB’s factual findings is deferential. Id. The burden of proof lawful and reasonable. Appeal of Rancourt, 176 N.H. at 14 p. 3 3. Accordingly, our of the CAB upon all questions of fact properly before it are deemed prima facie Appeal of Rancourt, 176 N.H. 139, 143 (2023); RSA 541:13 (2021). All findings [¶7] Our standard of review of CAB decisions is established by statute.

which the CAB denied. This appeal followed. barred by RSA 281 - A: p. 4 42 - d. The employer filed a motion for reconsideration, CAB concluded that the widow’s workers’ compensation claim was not time - 4

compensable work - related injury. separate and distinct right of action only when there is a pre - existing determination of a determined before the employee died. We disagree, however, that an employee’s death c reates a death, this case is distinguishable from Brown, in which the work - related injury had been The employer argues that because the injury here was not established before the decedent’s 1

until February 2 0 23. The widow had 18 months from February 2023 to claim was denied. H er claim for death benefits was not denied by the employer not required to petition for a hearing within 18 months after the decedent’s is “separate and distinct” from the decedent’s claim for benefit s, i d., she was [¶13] Because the widow’s claim for death benefits under RSA 281 - A:26

at 196. “separate and distinct” from that of the decedent employee. Brown, 100 N.H. employee,” RSA 281 - A:26, and accordingly gives dependents a right of action weekly compensation shall be paid to the dependents of the deceased 281 - A:26. RSA 281 - A:26 provides that “[i]f death results from an injury, case is instructive. Our holding in Brown is r eflected in the language of RSA benefits are governed by RSA 281 - A: p. 4 42 - d. W e nonetheless determine that the enactment of RSA 281 - A:42 - d in 1994, Brown did not address whether death [¶12] The employer argues that because Brown was decided before the

thereafter.” Id. at 197. 1 it was “not related to their rights as dependents which arose over two years dependents did not have a duty to apply for a modification of the settlement as the employee’s right of action — not the dependents ’. Id. Thus, the settlement with his employer before he died, the settlement could only aff ect omitted). We accordingly conclude d that where the employee executed a separate and distinct from that of the deceased employee.” Id. (quotation employee’s] death create s in a dependent widow or child a right of action this amendment, the legislature intended to create a system “by which [the N.H. 19 p. 4 4, 196 (1956) (quoting Laws 1947, 266:20). We held that by enacting deceased employee ’ a certain amount of compensation.” Brown v. Hubert, 100 injury, the employer shall pay to, or for the dependent or dependents of the Workers’ Compensation Law, which provided that “‘ if death results from the [¶11] In Brown v. Hubert, we examined the 1947 amendment to the

months after the widow’s claim for death benefits was denied. is a separate and distinct claim, which therefore could be filed within 18 filed within 18 months of the denial of the decedent’s pr ior claim, or whether it simply a continuation of the decedent’s prior claim, and therefore had to be the issue we must decide is whether the widow’s claim for death benefits is under the laws and rules administered by the department [of labor].”). Thus, N.H. Admin. R., Lab 101.02 (“‘Claimant’ means a person who has a claim added). The employer is correct that the term “claimant” includes dependents. the insurance carrier or self - insurer.” RSA 281 - A: p. 4 42 - d (2023) (emphas e s p. 5 5

supports the board’s decision, we will not reverse its determination even if 417 (1996) (quotation and brackets omitted). “[A] s long as competent evidence rather than solely upon its own la y opinion.” Appeal of Kehoe, 141 N.H. 412, board is required to base its findings on this issue upon the medical evidence causation is a matter properly within the province of medical experts, and the medical fact.” Appeal of Estate of Dodier, 174 N.H. p. 5 548, 555 (2021). “Medical related activities probably caused or contributed to the injury as a matter of the claimant to establish, by a preponderance of the evidence, that work - Wittenauer, 175 N.H. 420, 423 (2022). “The test for medical causation requires legal and medical causation by a preponderance of the evidence.” Appeal of [¶17] “In a workers’ compensation case, the claimant must prove both

record, we disagree. to support a finding of medical causation. Based upon our review of the finding a work - related injury because there was no competent medical evidence [¶16] We next address t he employer ’s argu ment that the CAB erred in

thereafter”). was not related to their rights as dependents which arose over two years apply for a modification of [the employee’s] settlement since that settlement 100 N.H. at 197 (concluding that there was no “duty on the [dependents] to the time the rights arose, namely, upon the death of the employee”); Brown, rights of the dependents are to be determined according to the law in force at (determining t hat dependents have a separate right of action and that “the decedent’s date of death. Hirsch v. Company, 97 N.H. 480, 486 (19 p. 5 52) death. Accordingly, the relevant date of injury for the widow’s claim is the widow did not have a cognizable claim for death benefits until the decedent’s date of death as the date of injury, that is plain legal error. We disagree. The his death. The employer argues that, to the extent the CAB relied upon the the CAB found: the date the decedent was first treated for cancer, or the date of [¶15] Finally, t he employer argues that it is unclear what date of injury

timeliness of the widow’s petition for a hearing on her claim. the decedent, the employer’s denial of the decedent’s claim d id not affec t the a claim for death benefits is a new claim, distinct from any prior claim made by have excluded death benefits from RSA 281 - A:42 - d. Because we conclude that request a hearing on the decedent’s claim for benefits had expired, it could separate right for dependents to pursue death benefits after the time limit to [¶14] The employer argues that if the legislature had intended to create a

A:42 - d. did not err in finding that the widow’s claim was not tim e - barred by RSA 281 petition for a hearing, and she did so. We accordingly conclude that the CAB p. 6 6

are met. RSA 281 - A:17, II (Supp. 2024). “The statutory presumption relieves a disease in a firefighter . . . is occupationally caused” where certain conditions [¶21] RSA 281 - A:17 establishes “a prima facie presumption that cancer

did not err by relying upon Cochran’s report and testimony. and testimony supported her opinion. Accordingly, we conclude that the CAB scientific basis for the conclusion by Cochran,” and explained that the exhibits Rancourt, 17 p. 6 6 N.H. at 144. The CAB found that “the re is a reasonable disregard or accept, in whole or in part, conflicting expert testimon y,” Appeal of Morin, 140 N.H. 515, 519 (1995) (quotation omitted), “factfinders are free to case,” and that “their reports must be accorded substantial weight,” Appeal of “[t]reating physicians are especially important in a workers’ compensation substantial weight to the decedent’s treating oncologist. While it is true that [¶20] Finally, t he employer argues that the CAB erred by not a cc ording

presented by Cochran to be sufficiently competent. accordingly conclude that the CAB did not err by finding the medical evidence occupational history, which was based in part on Pulde’s report. We exposures the decedent experienced, she did conduct a review of the decedent’s to Pease Tradeport and did not know exactly how many fires and jet fuel the gear the firefighters wear. A lthough Cochran did not make an onsite visit show that class 1 carcinogens are present at fire scenes, in firehouses, and in report, however, Cochran summarized the findings of peer - reviewed studies to conceded that she was not aware of the actual levels of those exposures. In her causation based on [the decedent’s] workplace exposures” because she [¶19] The employer also argues that Cochran “merely speculated on

1 carcinogen PAH in his long career as a firefighter.” decedent’s] cholangiocarcinoma is causally related to his exposure to the Class support her conclusio n that “[t]o a reasonable degree of medical certainty, [the cholangiocarcinoma, and about carcinogens and cancer in firefighters, to is increased risk.” Cochran relied upon medical literature about “[a]bsence of dat a is not the same as not understanding or knowing that there literature or data specific to cholangiocarcinoma. She further noted that cholangiocarcinoma is a rare cancer and thus, there is limited p eer - reviewed unsupported. As Cochran explained in her report and at the hearing, h owever, going to give you any results,” means that her conclusion on causation was “there’s no statistical analysis [on cholangiocarcinoma] that you can do that’s Specifically, the employer asserts that Cochran’s testimony at the hearing that competent” because she did not base her report upon scientific studies. [¶18] The employer contends that Cochran’s medical evidence was “not

p. 6 664, 66 p. 7 7 (1997). other evidence would lead to a contrary result.” Appeal of Newcomb, 141 N.H. 7

MACDONALD, C.J., and DONOVAN, J., concurred.

causation. evidence in the record for the CAB to find both medical causation and legal accordingly not time - b arred by RSA 281 - A:42 - d; and (2) there was competent and distinct from the decedent’s claim and her claim for death benefits is [¶25] In conclusion, we determine that: (1) the widow’s claim is separate

that the CAB did not err in finding legal causation. these findings are supported by competent evidence in the record, we conclude as the basis for the sudden emergence of ICC cancer.” Because we determine there are multiple potential exposures in [the decedent’s] service as a firefighter the workplace,” and that “reasonable testimony and expert reports indicat e witness testimony and expert reports to the multiple ‘potential exposures’ in N.H. at 423. The CAB found that “[l]egal causation evidence was presented by demonstrating that the injury is work - connected.” Appeal of Wittenauer, 1 p. 7 75 such error would be harmless. “Proof of legal causation requires applied the statute that was in effect in February 2019, we conclude that any [¶24] Even if we assume, without deciding, that the CAB should have

by Laws 2019, 251:6, eff. July 1 p. 7 7, 2019). product . . . 4 or more times in a week.” RSA 281 - A:17, II(e) (2023) (as added lifestyle ’ if he or she has not, within the past 6 months, used any tobacco part, that “[f]or the purposes of this section, a person lives a ‘ tobacco free 2023). In July 201 9, however, the statute was amended to add, in relevant has lived a tobacco free life.” RSA 281 - A:17, II(a) (Supp. 2018) (amended 2019, benefit of the prima facie presumption, the firefighter “guarantee that he or she [¶23] In February 2019, RSA 281 - A:17, II required that, to have the

February 15, 2019. A:1 p. 7 7 that was in effect on the date the decedent first sought treatment — the CAB erred in so finding because it failed to apply the version of RSA 281 decedent “ceased smoking in or around year 2000.” The employer argues that presumption because certain conditions have been met,” including that the [¶22] The CAB found that the widow was “entitled to the prima facie

in firefighters). 232, 235 (198 p. 7 7) (discussing the statutory presumption related to heart disease to his employment. Cunningham, Adm’x v. Manchester Fire Dep ’ t, 129 N.H. firefighter of proving legal causation,” i.e., that the cancer was causally related