APPEAL OF CARLOS MARTI New Hampshire Compensation Appeals Board
Argued: February 10, 2016
Shaheen & Gordon, P.A., of Manchester (Jared O'Connor
on the brief and orally), for the petitioner.
Hamblett & Kerrigan, PA, of Nashua (J. Daniel Marr and
Andrew J. Piela on the brief, and Mr. Marr orally), for the
petitioner, Carlos Marti, appeals a decision of the New
Hampshire Compensation Appeals Board (CAB) dismissing his
claim for reinstatement to his employment with the
respondent, Nashua Foundries, Inc. We vacate and remand.
following facts were found by the CAB or appear in the
record. The petitioner was hired by the respondent on October
8, 2013. On August 6, 2014, the petitioner injured his elbow
at work. He informed the respondent's president of his
injury, was given an over-the-counter medication, and
returned to work. The petitioner's pain grew worse and,
after approximately thirty minutes, he asked the president
for permission to go to the local emergency room. The
president refused the request, referring the petitioner
instead to an occupational health clinic pursuant to company
policy and the collective bargaining agreement governing the
petitioner's employment. That facility, however, would
not open until three hours later. The petitioner informed the
president that he intended to go to the emergency room
immediately. The president responded that if the petitioner
left work to go to the emergency room, rather than waiting to
visit the occupational health clinic, it would constitute
insubordination, and he would be fired. Under the collective
bargaining agreement, the petitioner could be immediately
terminated for insubordination.
the president's directive, the petitioner clocked out of
work and went to the emergency room. He returned later with a
doctor's note for a four-day work absence, but was
instead terminated for insubordination. The petitioner did
not grieve his termination under the collective bargaining
respondent's workers' compensation insurer accepted
the claim and paid the petitioner's medical bills. The
petitioner requested a hearing on his claims for
reinstatement and back pay. See RSA 281-A:25-a
(2010). Following a hearing before a Department of Labor
hearing officer, the petitioner's claim was denied. The
petitioner appealed to the CAB.
the CAB, the respondent moved to dismiss for lack of
jurisdiction. The CAB summarized the issue as follows:
"The issue in this case is one of statutory
construction. The question is whether the [CAB] has
jurisdiction to rule on the issue of reinstatement of an
injured claimant after he has been terminated and before he
has requested the reinstatement." The CAB
"repl[ied] in the negative" and granted the motion
to dismiss. The petitioner's motion for rehearing was
denied, and this appeal followed.
appeal, the petitioner argues that the CAB's
interpretation of RSA 281-A:25-a: (1) erroneously reads a
continuous employment requirement into that statute, thereby
undermining the statutory scheme; and (2) potentially leaves
him without a remedy because he was required by RSA 281-A:8,
III to choose between the remedies afforded under RSA chapter
281-A and those available under other statutes or the common
law. See RSA 281-A:8, III (2010).
standard of review is established by statute:
[T]he burden of proof shall be upon the party seeking to set
aside any order or decision of the [CAB] to show that the
same is clearly unreasonable or unlawful, and all findings of
the [CAB] upon all questions of fact properly before it shall
be deemed to be prima facie lawful and reasonable; and the
order or decision appealed from shall not be set aside or
vacated except for errors of law, unless the court is
satisfied, by a clear preponderance of the evidence before
it, that such order is unjust or unreasonable.
RSA 541:13 (2007); RSA 281-A:43, I(c) (2010) ("Any party
in interest aggrieved by any order or decision of the [CAB]
may appeal to the supreme court pursuant to RSA 541.").
"Thus, we review the factual findings of the CAB
deferentially, " and "its statutory interpretation
de novo." Appeal of Phillips, 165 N.H.
226, 230 (2013).
issues on appeal present questions of statutory
interpretation. In such matters, "we are the final
arbiters of the intent of the legislature as expressed in the
words of a statute considered as a whole." Id.
We first examine the language of the statute and ascribe the
plain and ordinary meanings to the words used. We interpret
legislative intent from the statute as written and will not
consider what the legislature might have said or add language
that the legislature did not see fit to include. We construe
the Workers' Compensation Law liberally to give the
broadest reasonable effect to its remedial ...