Wood v. General Elec. Co.

• Decision Date: 09 May 1979
• Docket Number: No. 78-190,78-190
• Parties: Harold W. WOOD v. GENERAL ELECTRIC COMPANY, Electrical Mutual Insurance Co. and State of New Hampshire Department of Labor.
• Court: New Hampshire Supreme Court

Page 155

402 A.2d 155

119 N.H. 285

Harold W. WOOD v. GENERAL ELECTRIC COMPANY, Electrical Mutual Insurance Co. and State of New Hampshire Department of Labor.

No. 78-190.

Supreme Court of New Hampshire.

May 9, 1979.

Upton, Sanders & Smith, Concord (Gary B. Richardson, Concord, orally), for plaintiff.

A. J. McDonough, P. A., Manchester (John P. Shea, Manchester, orally), for defendants General Elec. Co. and Electrical Mut. Ins. Co.

LAMPRON, Chief Justice.

The plaintiff challenges a workmen's compensation award made by the commissioner of labor. The plaintiff filed a petition for a writ of certiorari in this court after an appeal from the commissioner's decision was dismissed by the superior court. The two issues raised by the writ are whether the plaintiff diligently filed the present petition, and whether loss of use of a specific body member because of pain caused by an industrial accident is compensable under RSA 281:26. For the reasons below, we grant plaintiff's petition for a writ of certiorari as diligently filed and hold that loss of use of a specific body member because of pain is compensable under RSA 281:26.

The plaintiff injured his right leg as a result of an industrial accident in 1972 and filed for workmen's compensation benefits. On April 20, 1977, the Merrimack County Superior Court ruled that plaintiff Wood had suffered a work-related injury compensable under RSA 281:26. A hearing was held before the labor commissioner on the issue of the degree of permanent loss of use of Wood's leg. In a written report, dated August 2, 1977, the labor commissioner found a ten percent permanent partial disability and awarded 21.4 weeks of compensation. RSA 281:26 I b & v. On August 24, 1977, plaintiff appealed to the superior court. The essence of plaintiff's appeal was that the labor commissioner's decision was erroneous as a matter of law because he refused to consider pain in his determination of Wood's permanent impairment. The defendants, General Electric Company and Electric Mutual Insurance Company on October 4, 1977, filed a motion to dismiss and on May 23, 1978, both the merits of the appeal and defendant's motion to dismiss were heard before a master. The Master (Robert A. Carignan ), recommended that plaintiff's appeal be dismissed because the superior court lacked jurisdiction to hear the case in view of RSA 281:26 IV. The master's recommendation was approved by the Superior Court, Batchelder, J. After the superior court denied plaintiff's appeal on July 18, 1978, the plaintiff filed his petition for a writ of certiorari on August 3, 1978.

RSA 281:26 IV, states that, "(i)n (the) event of dispute as to . . . percentage of permanent partial loss or losses the same shall be determined by the labor commissioner on the basis of competent medical evidence and said findings shall be final." Under RSA 281:26 IV, there is no statutory right of appeal from a commissioner's award for permanent partial disability. Consequently, "the trial court properly dismissed plaintiff's appeal for lack of jurisdiction." Dodier v. Dep't of Labor, 117 N.H. 315, 317, 373 A.2d 341, 342 (1977). "Certiorari is therefore a proper remedy." Id. Although the defendants agree that certiorari is the proper remedy, they argue, however, that the writ should not issue because of plaintiff's lack of diligence in filing the petition.

Certiorari is an extraordinary remedy and is not granted as a matter of right but rather at the discretion of the court when the substantial ends of justice require such relief. State v. N. H. Retail Grocers Ass'n, 115 N.H. 623, 625, 348 A.2d 360, 362 (1975). Our statute and rules do not limit the time within which a petition of certiorari must be filed. Nonetheless, this court will refuse to exercise its discretion when the petition has been filed after an unreasonable length of time. Petition of Tucker, 27 N.H. 405, 410 (1853). Recently, in Wilson v. Personnel Comm'n, 117 N.H. 783, 378 A.2d 1375 (1977), we stated,

Where the legislature has acted to provide an appeal period in a substantively analogous situation, that appeal period will prove a fair guideline as to what constitutes a reasonable time. In the absence of any such legislative guideline, the court must look to all the facts and circumstances and determine whether the petitioning party is guilty of unreasonable delay. (Citations omitted.)

Id. at 784, 378 A.2d at 1377.

Our inquiry is focused on whether the legislature has provided a "substantively analogous" provision for workmen's compensation appeals. RSA 281:37 provides the details of the appeal procedures for workmen's compensation claims when the commissioner's decisions are not final. "An appeal from a decision of the commissioner, . . . may be taken to the superior court no later than 30 days from the date of such decision." RSA 281:37 I (emphasis added). The provisions of RSA 281:37 I apply to appeals that are "substantively analogous" to the present claim. Therefore, the statutory time period of thirty days "must be deemed to provide a fair guideline as to the reasonable time for filing a certiorari petition." Wilson v. Personnel Comm'n, 117 N.H. 783, 785, 378 A.2d 1375, 1377 (1977). This thirty-day time period only serves as a guideline and a lapse of time will not automatically bar a writ from being issued when there exist "circumstances excusing the delay." Id.

In Wilson, when we adopted an analogous time guideline for certiorari petitions from personnel commission orders, we held the rule to be prospective in operation. Id. In the present case, we also think that justice would be better served by applying the RSA 281:37 I time guideline to future certiorari petitions under the workmen's compensation statute.

Because our ruling is prospective, our procedural inquiry is not ended; we must still determine whether the petition should be dismissed because of laches. See Fireman's Annuity and Benefit Fund v. Krueger, 24 Wis.2d 200, 128 N.W.2d 670 (1964). See generally Annot., 40 A.L.R.2d 1381, 1385 (1955). "Laches, unlike limitation, is not a mere matter of time, but is principally a question of the inequity of permitting the claim to be enforced an inequity founded on some change in the conditions or relations of the property or the parties involved." 14 Am.Jur.2d Certiorari § 30 at 807 (1964). The defendants argue that they were prejudiced and inconvenienced because they had to go through the expense of an unnecessary trial. Defendants filed a motion to dismiss before trial, and it was pending when the master heard the case on the merits. It was the master, not the plaintiff, who decided to hear the case and dismiss the case after trial. After the trial court's decision on July 18, 1978, the plaintiff promptly petitioned for certiorari to this court on August 3, 1978. This court has indicated it will not be reluctant to grant certiorari when a tribunal has made an error of law. See Wilson v. Personnel Comm'n, 117 N.H. 783, 378 A.2d 1375 (1977); Connells New & Used Cars, Inc. v. State, 117 N.H. 531, 375 A.2d 257 (1977). We do not consider defendants' allegation of prejudice to be substantial when compared to the importance of the question of law that must be determined. In addition, defendants knew all along that plaintiff was attempting to pursue his claim, thus there can be no valid contention of surprise. Therefore we will proceed with the merits of the petition.

" 'The only question before us is whether the . . . (commissioner) has acted illegally in respect to jurisdiction, authority or observance of the law, thereby arriving at a conclusion which could not be legally or reasonably made.' " Dodier v. Dep't of Labor, 117 N.H. 315, 317, 373 A.2d 341, 342 (1977) quoting Tasker v. Personnel Comm'n, 115 N.H. 204, 206, 338 A.2d 543, 544 (1975). The legal question is whether the loss of use of a specified body member that is caused by substantial pain constitutes a loss compensable under the workmen's compensation statute. RSA 281:26.

Wood suffered a crush injury to his right groin as a result of an industrial accident in 1972. The medical diagnosis, was "traumatic sectioning of the lateral femoral cutaneous nerve on the right and sympathetic reflex dystrophy." Dr. Robert Rose stated, in a deposition submitted to the labor commissioner,...