McKay v. N.H. Comp. Appeals Bd.

• Decision Date: 08 July 1999
• Docket Number: Nos. 97–151,97–414.,s. 97–151
• Citation: 732 A.2d 1025,143 N.H. 722
• Court: New Hampshire Supreme Court
• Parties: James D. McKAY v. NEW HAMPSHIRE COMPENSATION APPEALS BOARD and another. Appeal of James D. McKay. (New Hampshire Compensation Appeals Board).

143 N.H. 722

732 A.2d 1025

James D. McKAY

v. NEW HAMPSHIRE COMPENSATION APPEALS BOARD and another.Appeal of James D. McKay.(New Hampshire Compensation Appeals Board).

Nos. 97–151

97–414.

Supreme Court of New Hampshire.

July 8, 1999.

Law Offices of David J. KillKelley, of Laconia (David J. KillKelley, on the brief and orally), for the petitioner, James D. McKay.

Sulloway & Hollis, P.L.L.C., of Concord (Martin L. Gross and Timothy A. Gudas, on the brief, and Mr. Gross orally), for the respondents, Katie Flo's Cafe, Inc. and Liberty Mutual Insurance Company.

Philip T. McLaughlin, attorney general (Douglas N. Jones, assistant attorney general, on the brief), for the State of New Hampshire, as amicus curiae.

BRODERICK, J.

In these consolidated cases, the petitioner, James D. McKay, appeals the Superior Court's (Perkins , J.) dismissal of his petition for injunctive relief and writ of mandamus, and the New Hampshire Compensation Appeals Board's (CAB) decision reducing his benefits. He argues that certain provisions of the Workers' Compensation Law, RSA chapter 281–A, violate the State Constitution because they deprive him of an impartial, judicial tribunal, and that the CAB's decision contains legal and factual error. We affirm the superior court, and although we hold that the challenged provisions of the Workers' Compensation Law are constitutional, we reverse the CAB's decision and remand.

I

In June 1994, while working for Katie Flo's Cafe, Inc. as a dishwasher, the petitioner slipped, fell, and fractured his right hip. Liberty Mutual Insurance Company (Liberty Mutual), which insures the cafe, voluntarily paid the petitioner temporary total disability benefits. In March 1996, Liberty Mutual successfully petitioned the department of labor (DOL) to reduce the petitioner's benefits to the diminished earning capacity rate. The DOL also ordered that the petitioner receive ten weeks of vocational rehabilitation services. He appealed the reduction in benefits to the CAB for a de novo review, see RSA 281–A:43, I(b) (Supp.1998), while Liberty Mutual filed no appeal from the vocational rehabilitation award.

Prior to the CAB merits hearing, however, the petitioner sought a declaratory judgment and writ of mandamus in superior court, requesting it to hear his workers' compensation appeal due to alleged constitutional infirmities in the Workers' Compensation Law. The trial court dismissed the petitioner's action, reasoning that he had adequate alternative relief before the CAB, including an appeal to the supreme court. The petitioner appealed the court's decision.

Following its hearing, the CAB determined that the evidence supported a reduction in the petitioner's benefits and rejected his various constitutional attacks on the Workers' Compensation Law.

The petitioner's motion for rehearing was denied, and he appealed. Consolidated superior court and CAB appeals are now before us.

On appeal, the petitioner challenges the constitutionality of certain provisions of the Workers' Compensation Law and the merits of the CAB's decision reducing his benefits. Because the trial court never addressed the constitutional claims and dismissed them on other grounds not appealed by the petitioner, we affirm its decision. Accordingly, we review only the issues raised before the CAB and preserved for appellate review.

II

The petitioner argues that RSA 281–A:42–a, which establishes the compensation appeals board and its powers, violates both Part I, Article 37 and Part 2, Article 73 of the State Constitution by requiring adjudication of his compensation claim by the board, rather than by a judicial tribunal. He does not contend that the entire workers' compensation scheme is unconstitutional, but rather seeks judicial resolution of his underlying claim and application of the remainder of the Workers' Compensation Law, including no-fault liability and scheduled economic benefits.

A brief history of the Workers' Compensation Law provides valuable context for the petitioner's constitutional challenges. The act was first enacted in 1911 "[i]n recognition of the burdens, delays, inadequate relief and unequal operation of law inherent in common law remedies." Thompson v. Forest , 136 N.H. 215, 217, 614 A.2d 1064, 1066 (1992). "One of the more important aims of [the act was] to secure to the injured [employee] ... compensation by direct payments under certain fixed rules without a law-suit and without friction ... by a procedure at once simple and inexpensive." Mulhall v. Nashua Mfg. Company , 80 N.H. 194, 200, 115 A. 449, 453 (1921) (quotations and citations omitted). Accordingly, the act provides for no-fault liability with scheduled statutory compensation for work-related injuries and disabilities that affect earning capacity. Bilodeau v. Oliver Stores, Inc. , 116 N.H. 83, 86, 352 A.2d 741, 743–44 (1976).

Until 1959, the act permitted employees to elect between pursuing compensation under its terms or through a common law tort action. The legislature then amended the act to create a conclusive presumption that employees accepted its coverage and waived their common law right to seek personal injury damages against their employers. Laws 1959, 187:4; see Park v. Rockwell Int'l Corp. , 121 N.H. 894, 896, 436 A.2d 1136, 1137 (1981). This statutory presumption remains in effect. See RSA 281–A:8 (Supp.1998). Until 1990, employees were entitled to seek a de novo review of their claims in the superior court. Compare RSA 281:37, I (1987) (repealed 1988) and Laws 1988, 194:2 with Laws 1990, 254:28. The 1990 amendment to the Workers' Compensation Law, however, eliminated de novo review by the superior court and replaced it with de novo review by the CAB. Laws 1990, 254:28,:29; see also RSA 281–A:42–a, I,:43, I(b) (Supp. 1998). Whether the 1990 amendment is constitutional is a matter of first impression.

Before turning to the specific constitutional provisions at issue, we clarify the nature of the petitioner's exception to the 1990 amendment. The petitioner argues that the amendment violates his constitutional right to judicial resolution of his compensation claim, including its legal and factual components. The actual effect of the amendment, however, is to deprive him of judicial resolution of only the facts underlying his workers' compensation claim because he still may seek de novo judicial review of its legal components. See RSA 281–A:43, I(c) (Supp.1998); RSA 541:13 (1997). Therefore, we review whether the failure of the Workers' Compensation Law to provide for judicial fact-finding for workers' compensation claims violates the constitutional provisions raised by the petitioner.

The petitioner initially argues that RSA 281–A:42–a violates Part I, Article 37 of our State Constitution. This provision states:

In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.

Despite Part I, Article 37's admonition on the separation of powers, we have recognized that "the doctrine does not require an absolute division of powers, but a cooperative accommodation among the three branches of government," Opinion of the Justices (Prior Sexual Assault Evidence) , 141 N.H. 562, 569, 688 A.2d 1006, 1010 (1997), and "contemplates some overlapping and duality in the division as a matter of practical and essential expediency," Cloutier v. State Milk Control Board , 92 N.H. 199, 203, 28 A.2d 554, 557 (1942). "[T]here is a region of authority, alternative and concurrent, the boundaries of which are fixed by no final rule." Opinion of the

Justices

, 87 N.H. 492, 493, 179 A. 357, 359 (1935). With respect to the judicial branch, resolving "questions of legal right" and "the function of trying and deciding litigation is strictly and exclusively" its domain. Id . at 493, 495, 179 A. at 359, 360. The legislature, however, acts within its constitutional authority when it empowers an administrative body to resolve factual issues underlying a purely statutory right. See

Pomponio v. State , 106 N.H. 273, 274–75, 209 A.2d 733, 734–35 (1965).

It is well-settled that the rights and remedies provided by the Workers' Compensation Law are purely statutory. Bilodeau , 116 N.H. at 87, 352 A.2d at 744. Contrary to the petitioner's assertion that the act only changes the remedy, or method of recovery, of common law tort liability to statutory no-fault liability with limited economic compensation, the Workers' Compensation Law also supplants the redress, or compensation, available to injured employees. See id. at 86, 352 A.2d at 744 (workers' compensation law compensates only for injuries which produce disability which presumably affects earning power); Mulhall , 80 N.H. at 197, 115 A. at 452 (compensation under the act is in no sense to be considered as damages).

The nature and extent of this redress "is governed by the express statutory language and that which can be fairly implied therefrom." Bilodeau , 116 N.H. at 87, 352 A.2d at 744.

The petitioner contends that workers' compensation claims are not purely statutory. He argues that because the rights of employees to bring common law tort claims against employers existed when the State Constitution was ratified in 1784, their right to judicial redress against employers for bodily injury was preserved by the constitution. He, therefore, concludes that he is constitutionally entitled to judicial resolution of the facts underlying his claim as it seeks redress for bodily injury against his employer. The petitioner, however, is not seeking common law redress for his injury, but rather statutory redress provided by the Workers' Compensation Law. "Unlike tort actions, no damages or compensation are awarded [under the act] for pain and suffering,...