Town of Goffstown v. Morgrage

• Decision Date: 02 July 1982
• Docket Number: No. 81-410,81-410
• Parties: TOWN OF GOFFSTOWN et al. v. Barry MORGRAGE et al.
• Court: New Hampshire Supreme Court

Page 385

448 A.2d 385

122 N.H. 591

TOWN OF GOFFSTOWN et al. v. Barry MORGRAGE et al.

No. 81-410.

Supreme Court of New Hampshire.

July 2, 1982.

Devine, Millimet, Stahl & Branch, P. A., Manchester (Andrew D. Dunn, Manchester, on brief and orally), for plaintiff Penn Gen. Service Corp.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Ronald J. Lajoie, Manchester, on brief and orally), for defendant New Hampshire Ins. Co.

Wiggin & Nourie, Manchester, for defendant Barry Morgrage, waived brief and oral argument.

PER CURIAM.

This is an appeal from a decree of the Superior Court (Dunn, J.) reversing the decision of the labor commissioner with respect to a claim for workmen's compensation by Barry Morgrage. The appeal involves a dispute between two insurance carriers as to their liability under "the most recent injurious incident" rule of RSA 281:38-a III (Supp.1981).

In his petition to the labor commissioner for workmen's compensation benefits, see RSA 281:37, Barry Morgrage made several allegations. First, he claimed that from March 1966 to December 1979, he had continuously been an employee of the Goffstown Police Department. Next, he alleged that he had sustained several injuries arising out of and in the course of his employment between 1966 and October 17, 1975. Finally, he claimed that he had been disabled from work on December 3, 1979. He failed, however, to cite any specific disabling incidents occurring in the course of his employment during the period from October 17, 1975, to December 3, 1979.

After a hearing, the commissioner ruled that Morgrage's disability on December 3, 1979, was causally related to his employment with the Town of Goffstown. The commissioner concluded that Penn General Service Corp. (Penn General), the insurance carrier for the town's workmen's compensation claims after May 7, 1979, was responsible for the payment of disability benefits to Morgrage.

Penn General duly appealed the labor commissioner's decision, claiming that the New Hampshire Insurance Company, the workmen's compensation insurer for the Town of Goffstown prior to May 7, 1979, was responsible for Morgrage's disability payments. The matter was submitted to the trial court on the pleadings, the deposition of the claimant, and the depositions of Doctors Merwyn Bagan and Thomas Shireffs, Jr.

RSA 281:37 I provides that an appeal from the decision of the labor commissioner should be heard in a "full trial" before a justice of the superior court. In such a de novo review, the trial justice may substitute his judgment for that of the labor commissioner. City of Rochester v. Smith, 119 N.H. 495, 496, 403 A.2d 421, 422 (1979). The claimant has the burden of proving by competent evidence both the existence of a compensable accidental injury and the extent of his disability. Id., 403 A.2d at 422. The claimant must therefore prove legal causation, that is, that his injury is work-connected, and medical causation, that is, that his disability was actually caused by the work-related event. Id. at 497, 403 A.2d at 423.

Furthermore, when, as in this case, there are two or more successive insurance carriers, only one can be charged for the whole compensation which results from the compensable injury. See Casey's Case, 348 Mass. 572, 574, 204 N.E.2d 710, 711 (1965). In the absence of a second independent intervening contributing cause of disability, the employer's insurance carrier on the risk at the time of the original compensable injury is liable for the employee's continuing incapacity." See Rock's Case, 323 Mass. 428, 429-30, 82 N.E.2d 616, 617 (1948); Sosnowski v. Dandy Hamburger, 384 Mich. 221, 226-27, 180 N.W.2d 761, 763 (1970); see also City of Portsmouth v. Meaney, 121 N.H. 13, 16, 426 A.2d 21, 23 (1981).

The above so-called "Massachusetts-Michigan rule" became a statutory rule in New Hampshire effective July 1, 1979, as RSA 281:38-a III (Supp.1981). The statutory rule, referred to as "the most recent injurious incident" rule, provides in pertinent part as follows:

"[T]he employer in whose employment the employee sustained the most recent injurious incident and the insurance carrier, if any, on the risk when such injurious incident occurred, shall alone be liable for benefits allowable under this chapter, without right to contributions from any prior employer or insurance carrier."

RSA 281:38-a III (Supp.1981). In successive injury cases, the rule places full liability upon the carrier covering the risk at the time of the most recent injury bearing a causal relation to the disability. 4 A. Larson, The Law of Workmen's Compensation § 95.12, at 17-71 (1982); see City of Portsmouth v. Meaney, 121 N.H. at 16, 426 A.2d at 23.

The following legislative history of RSA 281:38-a III (Supp.1981) is consonant with the above interpretation:

"The purpose of this amendment is to provide that the insurance carrier or employer responsible at the time of the worker's most recent injurious incident is to be responsible for the entire amount of the claim.... This amendment proposes a plain and simple rule: Except in 'second injury' cases the employer and the insurance carrier (if any) on the risk at the time of the last injurious incident is responsible for paying the entire claim."

Minutes of the Labor Human Resources and Rehabilitation Committee, HB 382 (1979).

With respect to the cause and timing of Morgrage's injury, the trial court found that:

"The testimony of the claimant and the two physicians, both of whom treated the claimant, establishes by a preponderance of the evidence that his injury was causally connected to his employment.... Dr. Merwyn Bagan, a neurological surgeon who removed a herniated disc from the claimant's back in August 1980, stated that the disc injury was probably related to two incidents occurring in 1975, both of which were...