In re Cover
| Decision Date | 26 February 2016 |
| Docket Number | No. 2014–0583,2014–0583 |
| Parties | APPEAL OF Raymond COVER (New Hampshire Compensation Appeals Board) |
| Court | New Hampshire Supreme Court |
168 N.H. 614
134 A.3d 433
APPEAL OF Raymond COVER (New Hampshire Compensation Appeals Board)
No. 2014–0583
Supreme Court of New Hampshire.
Argued: November 10, 2015
Opinion Issued: February 26, 2016
Shaheen & Gordon, P.A., of Nashua (Jared O'Connor on the brief and orally), for the petitioner.
Sulloway & Hollis, P.L.L.C., of Concord (Katherine DeForest on the brief, and David W. Johnston orally), for the respondent.
HICKS, J.
The petitioner, Raymond Cover, appeals an order of the New Hampshire Compensation Appeals Board (board) denying his request for reinstatement to his former part-time position with the respondent, the New Hampshire Liquor Commission (Commission). The board based its denial upon New Hampshire Administrative Rules, Lab 504.05(b)(3), which states that part-time employees are ineligible for reinstatement under the Workers' Compensation Law. On appeal, Cover argues that Lab 504.05(b)(3) conflicts with RSA 281–A:25–a and is therefore invalid. See RSA 281–A:25–a (2010). We agree, and, accordingly,
vacate the board's order and remand.
The board found, or the record supports, the following facts. Cover was a part-time employee of the Commission. In late May 2013, he sustained a work-related injury. The Commission sent him workers' compensation forms on June 5 and warned him that he faced termination if he did not provide medical documentation by June 14 to justify his absence from work. On June 6, Cover gave the forms to his physician, who submitted them to the Commission on June 17, three days after the Commission's deadline.
Cover acknowledged that he did not submit any medical documentation to the Commission by June 14. On June 13, the Commission's insurance carrier denied Cover's workers' compensation claim, stating that it had not received medical documentation concerning his injury. On June 17, the Commission terminated Cover's employment.
Cover requested a hearing with the New Hampshire Department of Labor on June 27, which was granted. At the hearing, Cover contested the denial of his workers' compensation claim and requested reinstatement. The hearing officer found that Cover's injury was compensable, awarded
diminished earning capacity rate benefits, and ordered that the carrier pay for his medical expenses. However, the hearing officer denied Cover's request for reinstatement citing Lab 504.05[ (b)(3) ], which, the hearing officer stated, rendered part-time employees ineligible for reinstatement.
Cover appealed to the board, arguing that Lab 504.05(b)(3) is invalid because it conflicts with RSA 281–A:25–a. The board affirmed the hearing officer's decision. In its order, the board notes that the Commission terminated Cover for his failure to submit medical documentation by June 14, and states: "Pursuant to the Commission's policy the claimant was classified as a part-time employee. [Lab 504.05(b)(3) ] excludes part-time employees from eligibility for reinstatement. Any remedy in this case is legislative or regulatory." The order concludes by stating: "For the reasons given above the claimant is not entitled to be reinstated to his former part-time position."
Cover moved for rehearing, and the Commission objected. In its objection, the Commission requested that the board affirm its conclusion that Cover was ineligible for reinstatement on two alternate grounds: Lab 504.05(b)(3) and Cover's termination. In denying the motion, the board did not mention Cover's termination. The board stated that "[a]ny inconsistency between [ RSA 281–A:25–a ] and administrative rule [Lab 504.05(b)(3) ] constitutes an issue of statutory construction that is vested exclusively with the [New Hampshire] Supreme Court." This appeal followed.
On appeal, Cover again raises the issue of Lab 504.05(b)(3)'s validity. However, prior to oral argument, the Commission filed a supplemental memorandum of law in which it contested our subject matter jurisdiction over Cover's appeal. We address the Commission's jurisdictional argument first.
"A challenge to subject matter jurisdiction may be raised at any time during the proceeding, including on appeal...." Close v. Fisette, 146 N.H. 480, 483, 776 A.2d 131 (2001). The Commission argues that RSA 541–A:24 creates the only mechanism by which Cover could have challenged the validity of Lab 504.05(b)(3): a declaratory judgment action in which the Department of Labor, the agency that promulgated Lab 504.05(b)(3), is joined as an opposing party. See RSA 541–A:24 (2007).
Because Cover instead brought his challenge before the board, the Commission argues that his claim is therefore not properly before this court.
Addressing the Commission's argument requires that we interpret RSA 541–A:24. "Statutory interpretation is a question of law, which we review de novo." Petition of Malisos, 166 N.H. 726, 729, 103 A.3d 793 (2014). In matters of statutory interpretation, "[w]e are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole."
Appeal of Wilson, 161 N.H. 659, 662, 20 A.3d 1006 (2011). "We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used." Id. "We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Appeal of Local Gov't Ctr., 165 N.H. 790, 804, 85 A.3d 388 (2014). "We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result." Id. "Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole." Id. "This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme." Id.
RSA 541–A:24 describes a mechanism by which parties may challenge the validity of an agency rule:
The validity or applicability of a rule may be determined in an action for declaratory judgment in the Merrimack county superior court if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.
RSA 541–A:24 (emphasis added). The Commission argues that "the word ‘may’ [in the statute] is meant to express a right ... to challenge a rule's validity." The Commission contends that "[i]f that right is exercised, then the action must be filed in the Merrimack county superior court, and it must name the agency that adopted the rule." According to the Commission, this procedure is the only way that Cover could have challenged the validity of Lab 504.05(b)(3). We disagree.
We take exception to the Commission's understanding of the word, "may," in RSA 541–A:24. The first two definitions of "may" in Black's Law Dictionary are "[t]o be permitted to" and "[t]o be a possibility." Black's Law Dictionary 1127 (10th ed. 2014). Moreover, in New Hampshire, it is a "general rule of statutory construction" that "may" is permissive, not mandatory. Appeal of Coos County Comm'rs, 166 N.H. 379, 386, 97 A.3d 654 (2014) (quotations omitted). Thus, contrary to the Commission's interpretation, the word "may" in the statute indicates that a declaratory judgment action is one possible mechanism by which Cover could have challenged Lab 504.05(b)(3)'s validity. See RSA 541–A:24. This interpretation is bolstered by the statute's final sentence, which states: "A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity ... of the rule." Id. This sentence alludes to other
mechanisms by which a party may challenge a rule's validity, which, as provided by the statute, will not prevent that party from filing a declaratory judgment action.
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