In re Poulicakos

• Decision Date: 30 June 2010
• Docket Number: No. 2009–266.,2009–266.
• Citation: 160 N.H. 438,999 A.2d 246
• Court: New Hampshire Supreme Court
• Parties: Petition of Michael POULICAKOS (New Hampshire Retirement System).

160 N.H. 438

999 A.2d 246

Petition of Michael POULICAKOS (New Hampshire Retirement System).

No. 2009–266.

Supreme Court of New Hampshire.

Argued: Feb. 11, 2010.

Opinion Issued: June 30, 2010.

Michael C. Reynolds, general counsel, State Employees Association of New Hampshire, Inc., of Concord, on the brief and orally, for the petitioner.

Foley Law Office, of Concord (Peter T. Foley on the brief and orally), for the respondent.

HICKS, J.

The petitioner, Michael Poulicakos, appeals a decision of the respondent, New Hampshire Retirement System (NHRS), denying him accidental disability retirement (ADR) benefits. We affirm.

The record supports the following facts. The petitioner was employed as a corrections officer by the State of New Hampshire Department of Corrections (DOC). As such, he was a group II member of NHRS. See RSA 100–A:1, VII, :1, X(b) (2001) (defining group II members to include permanent policemen, and permanent policemen to include certain corrections personnel). On June 30, 2006, the petitioner instituted a workers' compensation claim with the department of labor (DOL), describing his injury as mental stress from his job. On August 2, 2006, he applied to NHRS for both ordinary disability retirement benefits and ADR benefits, describing the nature of his disability as psychological. The petitioner's application for ordinary disability retirement benefits was granted and is not at issue in this appeal. The workers' compensation and ADR claims proceeded concurrently before the DOL and NHRS.

The DOL held a hearing on the petitioner's workers' compensation claim and on November 14, 2006, awarded the petitioner compensation for temporary total disability. See RSA 282–A:28 (1999). The hearing officer found that "[t]he claimant suffered a life-changing incident on July 2, 1994 when he found an inmate hanging in her cell.... The claimant developed headaches, nightmares, and eventually developed a phobia against looking into cells when he was alone for fear of seeing something similar." The hearing officer concluded that "[t]he medical opinion which has been submitted is uncontroverted in that the claimant has a condition of PTSD [post-traumatic stress disorder

] which arose out of and in the course of his employment as a corrections officer." The hearing officer noted, however, that cross-examination regarding the petitioner's medical history was "primarily speculative as the carrier had not seen fit to have a legitimate medical review."

The DOC filed a de novo appeal before the Compensation Appeals Board (CAB). The CAB reviewed three psychiatric experts' reports: the intake assessment of a doctor consulted by the petitioner, the independent psychiatric evaluation performed for the workers' compensation carrier, and the independent evaluation conducted for NHRS. The CAB acknowledged that the petitioner's doctor "reached a diagnosis of PTSD caused by the hanging incident," but noted that "[t]his was an intake assessment and does not contain the kind of detail an expert would develop if asked for a full opinion on causation." The two independent examiners, on the other hand, had concluded that the petitioner's disability was not caused by a work-related accident or injury. The CAB concluded that the petitioner "failed to carry his burden of proof that his stress injury was work-related." The CAB denied the petitioner's motion for reconsideration on October 17, 2007, and we summarily affirmed.

Meanwhile, the petitioner's ADR claim proceeded before NHRS. On January 9, 2007, a hearings examiner for NHRS recommended that the claim be denied, noting aspects of the petitioner's history that were inconsistent with his PTSD diagnosis. She further stated that she "d[id] not find the [DOL] findings of PTSD to be persuasive," and that such findings were not binding on NHRS. The NHRS board of trustees (board) voted to accept the hearings examiner's recommendation.

On the petitioner's motion for rehearing or reconsideration, the board again accepted the recommendation of the hearings examiner, who found that " [b]ecause the effective decision in the applicant's workers' compensation case is the New Hampshire Supreme Court's upholding of a denial of benefits by the [CAB], the applicant has failed to meet the ‘finding of compensability’ prerequisite to the filing of an ADR claim." The petitioner then sought a writ of certiorari from this court.

"Because RSA chapter 100–A does not provide for judicial review, a writ of certiorari is the sole remedy available to a party aggrieved by a decision of [NHRS]." Petition of Concord Teachers, 158 N.H. 529, 533, 969 A.2d 403 (2009). "Our standard of review is whether the board acted illegally with respect to jurisdiction, authority or observance of the law, whereby it arrived at a conclusion which cannot legally or reasonably be made, or abused its discretion or acted arbitrarily, unreasonably, or capriciously." Petition of Farmington Teachers Assoc., 158 N.H. 453, 455, 969 A.2d 422 (2009) (quotation omitted).

The petitioner presents a single question:

Is a [DOL] decision on causation pursuant to RSA 281–A:43, binding on [NHRS] on the issue of causation pursuant to RSA 100–A:6, II(c)(1)-(3), even if that DOL Hearing Officer decision is overturned on appeal to the NH Compensation Appeals Board (CAB) and to the NH Supreme Court?

Resolving this question requires that we interpret the relevant statute, which presents a question of law that we review de novo. Petition of Farmington Teachers, 158 N.H. at 456, 969 A.2d 422.

When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. 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. We interpret a statute in the context of the overall statutory scheme and not in isolation.

Id. (quotations and citation omitted).

RSA 100–A:6, II provides, in part:

(c)(1) Upon the application of a group II member in service or of the member's employer, any member shall be retired by the board of trustees on an accidental disability retirement allowance where the member has been totally and permanently incapacitated for duty as the natural and proximate result of either:

(A) An accident occurring while in the actual performance of duty at some definite time and place; or

(B) Repeated trauma or gradual degeneration occurring while in the actual performance of duty, or arising out of and in the course of employment; or

(C) Any occupational disease arising out of or in the course of employment as defined by RSA 281–A:2, XI, RSA 281–A:2, XIII, or RSA 281–A:17.

(2) The provisions of subparagraph (c)(1) shall apply provided that:

(A) The member is found to be mentally or physically incapacitated for the further performance of duty and that such incapacity is likely to be permanent;

(B) The member did not intend for injury to result from the member's conduct; and

(C) The incapacitating accident, trauma, degeneration, or occupational disease has been found to be compensable by the employer, the employer's insurance carrier, or the commissioner of labor pursuant to RSA 281–A:43.

(3) The member applying pursuant to subparagraph (c)(1) shall have the burden of proving causation before the board of trustees if the member enters into a lump sum settlement of an injury claim that was at any time denied by the employer or the employer's insurance carrier and not found compensable by final decision of the labor commissioner or the compensation appeals board after hearing pursuant to RSA 281–A:43. In the case of any lump sum settlement, the board of trustees shall require the member seeking disability retirement benefits to prove by a preponderance of the evidence the existence of a work-related injury of the type described in subparagraph (c)(1)(A)-(C), and also that the work-related injury naturally and proximately resulted in the member's total and permanent incapacity from duty. If the board of trustees is unable to grant disability retirement benefits after review of medical and factual information submitted by the member and by a physician designated by the board, then the member shall be entitled to a hearing before the board in order to determine whether the member qualifies for disability retirement benefits.

RSA 100–A:6, II(c) (Supp.2009).

The petitioner contends that under RSA 100–A:6, II(c), NHRS is bound by the DOL hearing officer's November 14, 2006 decision finding his condition to be work-related and compensable. He argues that the requirement in RSA 100–A:6, II(c)(2)(C) that the disabling condition "has been found to be compensable by the employer, the employer's insurance carrier, or the commissioner of labor pursuant to RSA 281–A:43" requires only a single finding of compensability at any level in the DOL proceedings, regardless of the ultimate conclusion on compensability determined on the final appeal. The petitioner argues that while the hearing officer's finding of compensability in this case was not final, "there is absolutely no ... requirement in RSA 100–A:6, II(c)(2)(C)" that a DOL finding of compensability survive an administrative appeal.

Our task is to determine what the legislature meant by the language, "found to be compensable by ... the commissioner of labor," in RSA 100–A:6, II(c)(2)(C). See Pandora Indus., Inc. v. State Dep't of Revenue Ad., 118 N.H. 891, 894, 395 A.2d 1241 (1978). That language itself does not indicate whether the finding must be...