Ranger v. New Hampshire Youth Development Center, 7761
| Citation | 117 N.H. 648,377 A.2d 132 |
| Decision Date | 01 August 1977 |
| Docket Number | No. 7761,7761 |
| Parties | Alfred H. RANGER v. NEW HAMPSHIRE YOUTH DEVELOPMENT CENTER, Robert M. Duvall, Labor Commissioner. |
| Court | New Hampshire Supreme Court |
Cleveland, Waters & Bass and Robert T. Clark, Concord, for plaintiff.
David H. Souter, Atty. Gen., and Anne E. Cagwin, Concord, for defendants.
On December 1, 1966, the plaintiff, in the course of his employment at the New Hampshire Youth Development Center, suffered a severe alkali burn in his right eye. He promptly notified his employer and subsequently received workmen's compensation benefits consisting of payments for medical expenses and for lost wages. A gradual deterioration of vision followed until November 4, 1975, when a doctor concluded that the plaintiff had suffered a total and permanent loss of sight in his right eye. On April 1, 1976, the workmen's compensation review commission held that the plaintiff was entitled to a scheduled permanent impairment award for total loss of vision of one eye. RSA 281:26 (Supp.1975). Such award was computed using the plaintiff's average weekly wage as of December 1, 1966 the date of the injury. Believing that the review commission should have used his average weekly wage as of November 4, 1975 the date upon which it was established that he had lost the vision in his eye the plaintiff petitioned the labor commissioner. The commissioner, however, sustained the decision of the review commission. The plaintiff's appeal to the superior court was reserved and transferred to this court by Flynn, J. RSA 491:17.
The sole issue is whether, in a case in which injury and loss occur years apart, the scheduled permanent impairment award should be based upon the average weekly wage as of the date of the injury or the date of prompt medical disclosure of the loss. The statute does not explicitly answer the question. The scheduled permanent impairment award provision, RSA 281:26 (Supp.1975), states that the award shall be paid to employees in amounts provided by RSA 281:23. That section sets forth a compensation schedule based upon a percentage of the employee's average weekly wage. RSA 281:2 VII (Supp.1975) defines average weekly wages as "the gross earnings of the injured employee in the service of the same employer during the preceding twelve weeks, or a longer period, not to exceed one year, if more favorable to the injured, divided by the number of weeks." RSA 281:2 VII (Supp.1975) (emphasis added). The statute, however, does not state what event the twelve weeks precede.
The defendants urge us to apply the reasoning in Davis v. Manchester, 100 N.H. 335, 126 A.2d 254 (1956) and Bee v. Chicopee Mfg. Corp., 94 N.H. 478, 55 A.2d 897 (1947), both of which held that, for the purposes of determining disability benefits under RSA 281:24 (1955) (Laws 1947, 266:1, para. 22) (Davis ) and R.L. 216:20 I, 22 (1942) (Bee ), the average weekly wage is computed as of the date of the injury not the date upon which the disability manifests itself. We will assume, for the purposes of this case, that Davis and Bee were correctly decided under the statutes as they existed then. However, it does not necessarily follow that Davis and Bee control this case or are even authoritative in the present context. First, they involved the computation of disability benefits under RSA 281:24 (1955) (Laws 1947, 266:1, para. 22) (Davis ) and R.L. 20 I, 22 (1942) (Bee ) as opposed to scheduled benefits under RSA 281:26 (1955) (Laws 1947, 266:1, para. 24) and R.L. 216:23 (1942) which were the predecessors of the present scheduled permanent impairment award provision involved in this case, RSA 281:26 (Supp.1975). Second, even if the reasoning of Davis and Bee would have been applicable to scheduled awards as well as disability benefits when those cases were decided, the relationship between the two kinds of compensation has changed so dramatically in recent years that we must undertake a fresh analysis of the statutory scheme to decide this case.
Prior to 1973, scheduled benefits under section 26 were "in lieu of any and all compensation under any other provisions of this chapter." RSA 281:27 (1966). The employee could elect to forego the section 26 award if the total benefits to which he would otherwise be entitled under other provisions exceeded the section 26 award, but he could not receive compensation under both section 26 and some other section or sections. Id. This election provision was repealed in 1973. Laws 1973, 481:12. The scheduled award is now "(i)n addition to other benefits payable under this chapter." RSA 281:26 (Supp.1975). Thus, the scheduled award is no longer an alternative formula under which one recovers for a work-related injury. It is now an additional award which compensates for injury regardless of whether there is an actual wage loss. 2 A. Larson, The Law of Workmen's Compensation § 58.11 (1976). To this extent it is unrelated to the other benefits available under the statute.
Recent language changes in section 26 also evidence a legislative intent to distinguish between scheduled awards and other benefits. The statute states: "The scheduled awards under this section accrue to the injured employee simply by virtue of the loss or loss of the use of a member of the body, there being conferred upon the employee a right which is separate and independent of the rights provided by (the disability provisions of the statute)." RSA 281:26 II (Supp.1975) (added by Laws 1973, 481:10) (emphasis added). The section also provides that "(p)ayment of the scheduled award becomes due upon prompt medical disclosure regarding the loss or loss of use of the member of the body. . . ." RSA 281:26 III (Supp.1975) (added by Laws 1973, 481:10).
Given that the scheduled award is in addition to and wholly independent of other benefits, that it is the loss itself which triggers accrual of the award, and that the payment becomes due upon prompt medical disclosure of the loss, it is reasonable to assume that the legislature intended the...
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