In re New Hampshire Dep't of Corr.

• Decision Date: 29 November 2011
• Docket Number: No. 2010–811.,2010–811.
• Citation: 34 A.3d 1210,162 N.H. 750
• Parties: Appeal of NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS (New Hampshire Compensation Appeals Board).
• Court: New Hampshire Supreme Court

162 N.H. 750

34 A.3d 1210

Appeal of NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS (New Hampshire Compensation Appeals Board).

No. 2010–811.

Supreme Court of New Hampshire.

Argued: Sept. 22, 2011.Opinion Issued: Nov. 29, 2011.

Law Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H. Johnson on the brief and orally), for the petitioner.

Sulloway & Hollis, P.L.L.C., of Concord (James E. Owers and Matthew J. Snyder on the brief, and Mr. Owers orally), for the respondents.

DALIANIS, C.J.

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

The following facts are derived from the record. The claimant first filed a workers' compensation claim in January 2008, alleging that he suffered emotional injuries on August 18, 2007, because of harassment and retaliation at his DOC job. The insurer denied the claim on January 25, 2008, on the ground that the claimant's injuries were not causally related to his employment. On June 16, 2009, the CAB ruled in the claimant's favor, awarding him benefits from October 24, 2007, the date he was deemed unable to work, through “at least” October 20, 2008, the date of the initial hearing before a department of labor hearing officer. See RSA 281–A:16 (2010). On August 14, 2009, in response to the claimant's motion, the CAB clarified that he was entitled to benefits at the temporary partial disability rate. See RSA 281–A:31 (2010). On February 2, 2010, in response to the claimant's second motion for clarification, the CAB explained that he was entitled to temporary partial disability benefits “continuing after October 20, 2008.”

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

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

On June 15, 2011, we granted the insurer's motion to supplement the record on appeal with a writ the claimant filed in superior court on September 15, 2010, against the State and the DOC, seeking damages for retaliation and discrimination under state and federal statutes. However, the insurer has not demonstrated that it preserved any issues related to the writ for our review. See Appeal of Bosselait, 130 N.H. 604, 606–08, 547 A.2d 682 (1988); see also Sup.Ct. R. 10(1)(i). The record on appeal shows that the insurer's motion to dismiss and its October 6, 2010 motion for reconsideration were based upon the administrative claim filed with the human rights commission. The record does not show that the insurer ever alerted the CAB to the fact of the claimant's superior court writ. Accordingly, we decline to consider the parties' arguments with regard to the claimant's superior court writ. We, likewise, decline to consider arguments that the insurer raised for the first time at oral argument, such as its contention that the claimant's original work-related injury was for constructive discharge or that the CAB erred by not requiring the claimant to dismiss his superior court writ. See Appeal of Savage, 144 N.H. 107, 112, 737 A.2d 1109 (1999).

Our standard of review is statutory:

[A]ll findings of the [CAB] upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.

RSA 541:13 (2007). Thus, we review the CAB's factual findings deferentially. Appeal of Hartford Ins. Co., 162 N.H. 91, 93, 27 A.3d 838 (2011). We review its statutory interpretation de novo. Id.

On questions of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 250, 910 A.2d 1262 (2006). 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 Gamas, 158 N.H. 646, 648, 972 A.2d 1025 (2009). We construe the Workers' Compensation Law liberally to give the broadest reasonable effect to its remedial purpose. Id. Thus, when construing it, we resolve all reasonable doubts in favor of the injured worker. Id.

Relying upon the exclusive remedy provision of the Workers' Compensation Law, RSA 281–A:8 (2010), the insurer first argues that the CAB erred when it denied the insurer's motion to dismiss. RSA 281–A:8 provides, in pertinent part:

I. An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee or the employee's personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:

(a) Against the employer or the employer's insurance carrier

...

....

III. Nothing in this chapter shall derogate from any rights a former employee may have under common law or other statute to recover damages for wrongful termination of, or constructive discharge from, employment. However, if a former employee makes a claim under this chapter for compensation for injuries allegedly caused by such wrongful termination or constructive discharge, the employee shall be deemed to have elected the remedies of this chapter, and to have waived rights to recover damages for such wrongful termination or constructive discharge under common law or other statute. Similarly, if a former employee brings an action under common law or other statute to recover damages for such wrongful termination or constructive discharge, the employee shall be deemed to have waived claims under this chapter for compensation allegedly caused by such termination or discharge.

Workers' compensation is an employee's exclusive remedy for “ all rights of action whether at common law or by statute ... [a]gainst the employer or [its] ... insurance carrier.” RSA 281–A:8, I (emphasis added); see Tothill v. Estate of Center, 152 N.H. 389, 394–95, 877 A.2d 213 (2005). RSA 281–A:8, III contains a limited exception to the workers' compensation exclusivity bar for claims of “wrongful termination” or “constructive discharge.” See Lacasse, 154 N.H. at 251, 910 A.2d 1262. Under RSA 281–A:8, III, an employee may elect to bring a claim for wrongful or constructive discharge either under the Workers' Compensation Law or under some other law, but may not bring such a claim under both the Workers' Compensation Law and some other law.

The insurer argues that, pursuant to RSA 281–A:8, III, the claimant's 2008 administrative claim alleging wrongful discharge barred his October 2009 request for increased disability benefits. The insurer contends that having filed an administrative claim of discrimination alleging wrongful termination, the claimant waived his claim...