Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Compensation Appeals Board No. 2006-461 APPEAL OF TINA SILK (New Hampshire Compensation Appeals Board) Submitted: September 14, 2007 Opinion Issued: December 14, 2007 Law Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H. Johnson on the memorandum of law), for the plaintiff. Desmarais, Ewing & Johnston, PLLC, of Manchester (Scott A. Ewing and Heather Silverstein on the memorandum of law), for the defendant. DUGGAN, J. The employee, Tina Silk, filed a motion for attorney's fees and costs in connection with her appeal to this court concerning workers' compensation benefits. She requests an award of $8,614.50 in attorney's fees and $508.51 in costs. The employer, Wickers Sportswear, Inc., has objected. We grant the employee's motion. The facts are undisputed. In 2000, a department of labor (DOL) hearing officer determined that the employee had suffered a compensable wrist injury on January 30, 2000, and ordered payment of benefits. After a subsequent hearing resulted in the employee receiving additional benefits, the employer appealed to the New Hampshire Compensation Appeals Board (board). In 2004, the board awarded the employee benefits and payment of certain chiropractic bills. After the board's decision, the employee sought payment of

bills for subsequent chiropractic treatment that she alleged was related to her compensable wrist injury. Her request was denied by the board in 2006. The employee appealed the board's order to this court. By an unpublished order dated May 23, 2007, we vacated the board's order and remanded the case. We ruled that "the board's findings regarding its 2004 order were erroneous and[,] because we [could not] determine whether the board applied the correct test in determining whether the treatment for which reimbursement was sought was compensable," we remanded the case to the board for further consideration. The employee thereafter moved for fees and costs. In her motion, she relies upon RSA 281-A:44, I (1999) (amended 2003). In its objection, the employer points out that RSA 281-A:44, I, was amended in 2003, and argues that the current version of RSA 281-A:44, I, applies. Under the prior version, RSA 281-A:44, I, provided: "In any dispute over the amount of the benefit payable under this chapter which is appealed to the board or supreme court or both, the employee, if such employee prevails, shall be entitled to reasonable counsel fees and costs as approved by the board or court . . . ." RSA 281-A:44, I (1999) (amended 2003). In Appeal of Brown, 143 N.H.112, 119 (1998), we held that to "prevail" an employee "must have secured a legal right or financial benefit greater than he or she had received prior to the appeal." In 2003, however, RSA 281-A:44, I, was amended to supersede Appeal of Brown by defining "prevail" as "receiv[ing] an award . . . which is greater in amount than awarded by the decision which is the subject of the appeal." RSA 281-A:44, I(a)(1) (Supp. 2007). Because the employee's attorney's fees award may differ depending upon the version of the statute applied, we must first determine which version applies. We are the final arbiter of legislative intent as expressed in the language of a statute. Appeal of HCA Parkland Medical Ctr., 143 N.H. 92, 94 (1998). Although we give undefined language its plain and ordinary meaning, we must keep in mind the intent of the legislation, which is determined by examining the construction of the statute as a whole, and not simply by examining isolated words and phrases found therein. See id. The express language of the Workers' Compensation Law determines the nature and extent of compensation available to the injured employee. See Rooney v. Fireman's Fund Ins. Co., 138 N.H. 637, 638-39 (1994). When construing the Workers' Compensation Law, we give the broadest reasonable effect to its remedial purpose, resolving all reasonable doubts in favor of the injured worker. See Appeal of Cote, 139 N.H. 575, 578 (1995). The employer contends that the statute in effect at the time that legal services were rendered governs the employee's request for attorney's fees. As legal services for this appeal did not begin until 2006, the employer maintains

2

that the current version of RSA 281-A:44, I, applies. The employee counters that the date of injury should determine the controlling statutory authority. Because, the employee argues, the law in effect at the time of the injury generally applies in workers' compensation cases, the version of RSA 281-A:44, I, in effect at the time of injury should apply. As a general rule, the rights and liabilities of the parties in a workers' compensation case are determined by the law in effect on the date of injury. Lessard v. City of Manchester Fire Dept., 118 N.H. 43, 47 (1978); Rivard v. McElwain Co., 95 N.H. 100, 103 (1948). For example, in Appeal of Cote, 144 N.H. 126, 128-29 (1999), we held that the law in effect on the date of the employee's injury, rather than at the time of total disability, governs an employee's entitlement to disability benefits for a recurring injury. See also Burnham v. Downing, 125 N.H. 293, 298 (1984) (holding employer's liability and employee's rights to benefits are fixed as of the date of injury); Davis v. Manchester, 100 N.H. 335, 340 (1956) (ruling amount of compensation to which employee is entitled is determined by law in force at time of injury). Moreover, although a permanent impairment award is governed by the law in effect on the date the permanency of loss becomes apparent, Petition of L'Heureux, 132 N.H. 498, 500-01 (1989), this conclusion is derived from statutory construction. Appeal of Cote, 144 N.H. at 129. There are no comparable statutory provisions or indications of legislative intent in the context of attorney's fees that would justify a departure from the general rule employed in workers' compensation cases. See, e.g., id. (rejecting argument that rule applied to permanent impairment awards should be adopted in determining the governing law for disability benefits). The attorney's fees and costs authorized by RSA 281-A:44, I, are part of an overall legislative scheme. In addition to regulating the type and amount of benefits an injured worker may receive, the legislature has also seen fit to regulate awards of attorney's fees and costs. We see no principled reason to distinguish an award of attorney's fees from disability benefits or other rights and liabilities applicable to workers' compensation cases. See Bateman v. Springer Bldg. Materials Corp., 777 P.2d 383, 385 (N.M. Ct. App. 1989) (finding no reason to distinguish an award of attorney's fees from any other workers' compensation benefits to which claimant is entitled); Daub v. Baker Concrete, 25 S.W.3d 124, 127 (Ky. 2000) ("The general rule is that an attorney's fee is governed by the law in effect on the date of injury because the worker's benefits, of which the attorney's fee is a function, are based upon the law in effect on the date of injury." (citation omitted)); Cadwell v. Bechtel Power Corp., 732 P.2d 1352, 1354 (Mont. 1987); 2 R. Rossi, Attorney's Fees

Download 2006-461, APPEAL OF TINA SILK.pdf

New Hampshire Law