Petition of Abbott

Decision Date08 February 1995
Docket NumberNo. 93-640,93-640
Citation653 A.2d 1113,139 N.H. 412
PartiesPetition of Richard A. ABBOTT (New Hampshire Department of Labor).
CourtNew Hampshire Supreme Court

Goodnow, Arwe, Ayer, Prigge & Hoppock, P.C., Keene (Timothy M. Frazier, on the brief and orally), for petitioner.

Roussos, Hage & Hodes, P.A., Manchester (John B. FitzGerald, III, orally and on brief and Edward F. Patch, on the brief), for Monadnock Fabricators, Inc. and Wausau Ins. Co.

HORTON, Justice.

The petitioner, Richard A. Abbott, seeks a writ of certiorari to review the decision of the New Hampshire Department of Labor ("department of labor") denying his claim for a permanent partial impairment award. We affirm.

In 1988, the petitioner sustained a back injury while working for Monadnock Fabricators, Inc. He received medical and wage benefits under workers' compensation. In 1993, the petitioner's treating orthopedic surgeon found that the petitioner had reached a medical endpoint, and noted an eight-percent permanent impairment based on a soft-tissue spinal injury. The petitioner then filed a claim for a permanent partial impairment award in addition to the medical and wage benefits he had received. The department of labor denied his claim, finding that the permanent impairment awards statute, RSA 281-A:32 (Supp.1994), expressly excluded his soft-tissue spinal injury.

The petitioner has taken the correct appeal path. Until January 1, 1994, permanent impairment awards of the labor commissioner were final, and the appropriate remedy for a dispute was certiorari. See RSA 281-A:32, XII (Supp.1993) (effective until Jan. 1, 1994); but see Laws 1993, ch. 226 (effective Jan. 1, 1994). On certiorari, this court will not make de novo findings or reverse those reasonably made by the commissioner. Petition of Markievitz, 135 N.H. 455, 456, 606 A.2d 800, 801 (1992). The sole inquiry is "whether the commission[er] has acted illegally in respect to jurisdiction, authority or observance of the law, thereby arriving at a conclusion which could not legally or reasonably be made." Id. (quotation omitted).

On appeal, the petitioner advances the following arguments: (1) the exclusion of certain soft-tissue spinal injuries from a scheduled award under RSA 281-A:32, IX violates the New Hampshire Constitution, part I, articles 2 and 12 (equal protection) and 14 (guaranteed remedy); (2) the exclusion violates the fourteenth amendment of the United States Constitution (equal protection); (3) the department of labor committed an error of law, abused its discretion and acted arbitrarily and unreasonably in denying his claim for permanent partial disability benefits; and (4) he is entitled to attorney's fees if he prevails.

Workers' compensation law in New Hampshire essentially provides two types of benefits, disability benefits and permanent impairment awards. Disability benefits compensate an injured worker for medical care and lost wages, while permanent impairment awards, otherwise known as scheduled awards, compensate an injured worker for the permanent impairment or loss of use of one or more body parts listed under RSA 281-A:32. See Ranger v. N.H. Youth Dev. Center, 117 N.H. 648, 650-51, 377 A.2d 132, 134 (1977). These benefits are "in addition to and wholly independent of [each] other," and an injured worker may receive both. Id. at 651, 377 A.2d at 134.

Prior to 1989, workers' compensation law provided no permanent impairment awards for injuries to the spine alone. RSA 281:26 (1987) (repealed); RSA 281-A:32, IX (Supp.1988). Spinal injuries were indirectly compensable, however, when manifested in one of the extremities for which an award was scheduled. See, e.g., Petition of Blackford, 138 N.H. 132, 635 A.2d 501 (1993). In 1989, the legislature amended RSA 281-A:32, IX to add a scheduled award for certain permanent spinal disabilities:

IX. More than one permanent loss. If an injury results in more than one permanent bodily loss specified in paragraphs I-VIII, or if the injury is to the spinal column or the spinal cord, an award shall be made on the basis of a maximum of 350 weeks with the appropriate number of weeks to be determined in proportion to the maximum in accordance with the percent of the whole person specified for such bodily losses in the most recent edition of "Guides to the Evaluation of Permanent Impairment" published by the American Medical Association. Injury to the spinal column or spinal cord shall not be construed to permit an award under this section as a result of soft tissue injury, nor to permit such an award on the basis of more than one permanent loss, unless such injury results in loss of use of upper or lower extremities.

RSA 281-A:32, IX (Supp.1994) (amended 1989, Laws 294:4, eff. July 1, 1989) (emphasis on 1989 additions). The statute expressly excludes soft-tissue spinal injuries which do not result in loss of use of the extremities. See id. The department of labor found the petitioner's injury to be within this exclusion.

The amendment applies to claims arising on or after July 1, 1989. Laws 1989, 294:4. The right to a permanent impairment award attaches at the date of medical disclosure of the permanent nature of the loss, not at the date of the injury. See Petition of Markievitz, 135 N.H. at 457-58, 606 A.2d at 802. The petitioner's injury occurred in 1988, but because his claim for a permanent impairment award arose in 1993, after the amendment's effective date, he is entitled to the additional award if his injury is found to be scheduled under RSA 281-A:32. See Petition of Markievitz, 135 N.H. at 457-58, 606 A.2d at 802.

The petitioner argues that RSA 281-A:32, IX, as amended, violates the guaranteed remedy and equal protection provisions of the New Hampshire Constitution, part I, articles 2, 12, and 14, and the equal protection guarantee of the fourteenth amendment to the United States Constitution. Given the remedial nature of workers' compensation laws, all reasonable doubts in the construction of the workers' compensation statutes will be liberally construed in a manner that favors the injured employee. See Petition of Correia, 128 N.H. 717, 721, 519 A.2d 263, 266 (1986).

The petitioner states that the amendment to RSA 281-A:32 unconstitutionally denies him an adequate remedy for his injury. We disagree. The New Hampshire Constitution guarantees every citizen "a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character ... conformably to the laws." N.H. CONST. pt. I, art. 14. Conformably to the laws means the effective statutory and common law, and part 1, article 14 does not preclude the creation of new causes of action or the abolition of old ones to obtain permissible legislative objectives. See Opinion of the Justices, 113 N.H. 205, 210, 304 A.2d 881, 885 (1973). We have recognized, for example, that the legislature may, in its sound discretion, periodically alter the permanent impairment award for a scheduled injury, and that, therefore, the award should be based upon the benefit schedule in effect when the worker's right to compensation for a permanent loss accrued. See Petition of Lapinski, 126 N.H. 772, 777, 497 A.2d 841, 844-45 (1985).

The right to recover for one's injuries is an "important substantive right" under the New Hampshire Constitution. Carson v. Maurer, 120 N.H. 925, 931-32, 424 A.2d 825, 830 (1980). The complete abolition of the rights of a class of persons to recover damages for their injuries would contravene the plain language of part I, article 14 of the New Hampshire Constitution, "in the absence of provision of a satisfactory substitute." Id. at 943, 424 A.2d at 838 (quotation omitted).

Employees covered by workers' compensation are conclusively presumed to have waived common law rights against their employers in return for the protection and benefits of the statutes. RSA 281-A:8 (Supp.1994). Workers' compensation schemes satisfy the guaranteed remedy provision of the New Hampshire Constitution if they provide a quid pro quo or an adequate substitute for statutory or common law rights extinguished under the statutes: "In recognition of the burdens, delays, inadequate relief and unequal operation of law inherent in common law remedies, the Workers' Compensation Law was designed to substitute for unsatisfactory common law remedies in tort a liability without fault with limited compensation capable of ready and early determination." Thompson v. Forest, 136 N.H. 215, 217, 614 A.2d 1064, 1066 (1992) (quotation omitted). The legislature does not have to increase workers' compensation benefits whenever it takes away statutory or common law rights so long as the deprivation of rights serves to restore the general quid pro quo of the workers' compensation law. Young v. Prevue Products, Inc., 130 N.H. 84, 88, 534 A.2d 714, 717 (1987).

In evaluating whether the relinquishment of the right to a remedy has been adequately offset by workers' compensation benefits, we consider the totality of benefits, not just those received at the time the right was statutorily abridged. Thompson, 136 N.H. at 217-18, 614 A.2d at 1067. Workers' compensation laws provide medical and wage benefits for work-related injuries like that of the petitioner. RSA 281-A:31 (Supp.1994). The amendment simply provides an additional benefit for certain work-related spinal injuries, but it does not abolish or abridge any existing right, remedy, or benefit. See RSA 281-A:32. Moreover, the permanent impairment award the petitioner seeks is "in addition to and wholly independent of other [workers' compensation] benefits," Ranger, 117 N.H. at 651, 377 A.2d at 134. We have held that an award request for permanent loss of brain function (soft tissue) was properly denied by the department of labor because "the brain is not a scheduled body part under the statute." Petition of Blackford, 138 N.H. at 134, 635 A.2d at 502. It appears to us that the petitioner's...

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