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Appeal of Gallant

Supreme Court of New Hampshire

July 29, 2008

Appeal of Denis Gallant

UNPUBLISHED OPINION

The employee, Denis Gallant, appeals an order of the compensation appeals board (board) finding that he failed to carry his burden that a prescription for Actiq is reasonable or necessary. We dismiss the appeal for lack of subject matter jurisdiction.

After this case was argued before a 3JX panel, the panel issued an order requesting brief memoranda addressing whether this court had subject matter jurisdiction to consider the employee's appeal. In his memorandum of law, he argues that the additional motions for reconsideration should be construed as motions to reopen filed pursuant to RSA 281-A:48 (1999).

We briefly restate the procedural history of this case. The board issued its original decision on February 12, 2007. The employee filed a motion for rehearing on March 12, 2007. The board denied the motion for rehearing on April 3, 2007; in its decision the board specifically noted that the motion for rehearing did not cite any error of law or raise any issues not raised at the hearing or considered by the board. The employee filed at least two additional motions for rehearing. On May 9, 2007, the board issued an order giving the carrier an opportunity to respond to the later submissions and advising the employee that no further submissions would be considered until the carrier had an opportunity to respond and that he was bound by the rules of the Department of Labor. On June 27, 2007, the board issued an order titled "Ruling on Motion for Reconsideration, " denied the employee's pending motions for reconsideration and advised him that no further motions for reconsideration would be accepted.

As the employee concedes, the board's decision became final thirty days after it denied the employee's motion for reconsideration. See Appeal of JAMAR, 145 N.H. 152, 155 (2000); RSA 281-A:43 (Supp. 2006). He argues, however, that the board exercised its authority under RSA 281-A:48 to reopen the case. In JAMAR, we cautioned that RSA 281-A:48 does not grant the board unlimited authority to review its alleged errors; rather, "the potential mistake must be of the type set forth in the statute: 'a mistake as to the nature or extent of the injury or disability.'" JAMAR, 145 N.H. at 156. "It is clear that an allegation of mistake should not be allowed to become a back-door route to retrying a case because one party thinks he or she can make a better showing on the second attempt." Id.

Unless the board exercised its limited authority to reopen the case, after May 3, 2007, it had no jurisdiction to address further pleadings. See, e.g., 74 Cox St. v. City of Nashua, 156 N.H. 228, 233 (2007) (administrative board entitled to exercise its inherent power to reconsider its decision only during the statutory appeal period). We therefore examine the record to determine the basis of the board's action. Notably none of the pleadings filed by the employee cite RSA 281-A:48 or this argument in support of further reconsideration. Moreover, in his notice of appeal, the employee concedes that the series of pleadings filed after the board's February 12, 2007 decision were construed as motions for rehearing and reconsideration; his brief refers to the June 27, 2007 decision as "final ruling on motion for reconsideration."

Based upon our review of the record, we conclude that the employee's appeal of the February 12, 2007 decision is untimely; it is therefore dismissed. Because the employee's additional pleadings before the board did not advise the board that he sought relief under RSA 281-A:48, we decline to consider on appeal whether the board should have reopened the case. See, e.g., Town of Nottingham v. Newman, 147 N.H. 131, 137 (2001) (rules of appellate practice not relaxed for pro se litigants).

Appeal dismissed.

DALIANIS, DUGGAN and HICKS, JJ., ...


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