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Appeal of Marti

Supreme Court of New Hampshire

June 28, 2016

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 respondent.

          HICKS, J.

         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.

         The 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.

         Against 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 agreement.

         The 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.

         Before 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.

         On 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).

         Our 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).

         The 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 ...

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