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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Compensation Appeals Board
No. 96-355
APPEAL OF NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION
(New Hampshire Compensation Appeals Board)
February 25, 1999
Philip T. McLaughlin, attorney general (Douglas N. Jones, assistant attorney general, on the brief and orally), for the petitioner.
Michael C. Reynolds, of Concord, by brief and orally, for the respondent, State Employees' Association of New Hampshire.
BROCK, C.J. The New Hampshire Department of Transportation (State) appeals a decision of the New Hampshire Compensation Appeals Board (board) awarding attorney's fees to the respondent, State Employees Association of New Hampshire (SEA), under RSA 281-A:44, I (Supp. 1998). We affirm in part.
The SEA, through its general counsel, represented Murray Howlett, a New Hampshire Department of Transportation employee, in his workers' compensation claim before a department of labor hearing officer and then, on appeal, before the board. See RSA ch. 281-A (Supp. 1998) (amended 1998). Howlett was a member of the SEA, a labor union that provides its members with legal assistance in pursuing workers' compensation claims against the State. Howlett's only expenses incurred as a result of the SEA's representation were his SEA dues and any costs associated with his claim. After losing before the department of labor hearing officer, Howlett received a favorable decision from the board on appeal awarding him benefits in the amount of $886.60.
Following this decision, the SEA filed a petition with the board requesting that the State pay the SEA $1,185.00 in attorney's fees pursuant to RSA 281-A:44. The petition itemized 7.9 hours of attorney time at a rate of $150.00 an hour. The board approved the SEA's request for attorney's fees, and this appeal followed.
The State argues that RSA 281-A:44, I, authorizes the award of attorney's fees only when the employee has actually incurred legal expenses. The employee in this case did not incur any legal expenses because he received free legal representation as a benefit of his SEA membership. Thus, the State argues that neither he nor the SEA is eligible to receive attorney's fees. "We will overturn the board's decision only for errors of law, or if we are satisfied by a clear preponderance of the evidence before us that the order is unjust or unreasonable." Appeal of Newcomb, 141 N.H. 664, 666, 690 A.2d 562, 564 (1997).
RSA 281-A:44, I, provides: "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 . . . ." The State argues that the statute authorizes the award of attorney's fees only when the employee actually incurs legal expenses; however, the statute is silent on this issue.
When the language of a statute is ambiguous, "[o]ur goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme." Appeal of Mascoma Valley Reg. School Dist., 141 N.H. 98, 100, 677 A.2d 679, 681 (1996) (citations omitted). The legislature enacted this statute to "provide[] proper protection to the working man," N.H.S. Jour. 537 (1969), by reimbursing employees for their legal expenses. Additionally, the legislature intended to discourage appeals by employers in workers' compensation cases. See Seppala & Aho Constr. Co. v. Elton, 119 N.H. 634, 636, 406 A.2d 460, 462 (1979). This deterrent purpose suggests that an employer should not be relieved of its obligation to pay attorney's fees simply because the employee belongs to an organization that provides legal representation as a membership benefit. Cf. Safeway Rental & Sales Co. v. Albina Engine & Machine Works, 343 F.2d 129, 134 (10th Cir. 1965) (reasoning that prevailing party's liability insurance should not relieve negligent party of its obligation to indemnify for fees); Lesmark, Inc. v. Pryce, 334 F.2d 942, 945 (D.C. Cir. 1964) (holding that prevailing party's liability insurance and lack of responsibility for attorney's fees does not relieve losing party of obligation to indemnify for counsel fees); Futrell v. Martin, 600 P.2d 777, 783 (Idaho 1979) (awarding attorney's fees even though prevailing party did not incur any fees because statute's purpose was to impose actual costs of litigation on losing party).
This analysis is consistent with the result reached by other jurisdictions in cases where pro bono organizations requested attorney's fees. The SEA's position is closely analogous to that of a pro bono organization because neither organization receives legal fees from its clients. Moreover, the federal civil rights statute under which many pro bono organizations collect legal fees contains language similar to that in RSA 281-A:44, I. Specifically, the federal statute provides for the award of attorney's fees to the "prevailing party." 42 U.S.C.