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In re Appeal of Desmarais

Supreme Court of New Hampshire

June 16, 2017

APPEAL OF BEVERLY DESMARAIS (New Hampshire Compensation Appeals Board)

          Argued: March 9, 2017

          Boynton Waldron Doleac Woodman & Scott, P.A., of Portsmouth (Christopher E. Grant on the brief and orally), for the petitioner.

          Trombley & Kfoury, PA, of Manchester (Paul R. Kfoury, Jr. and J. Kirk Trombley on the brief, and Mr. Kfoury orally), for the respondents.

          BASSETT, J.

         The petitioner, Beverly Desmarais, appeals the decision of the New Hampshire Compensation Appeals Board (CAB) denying her request for attorney's fees and costs that she incurred in litigating a fee dispute with the respondents, Utica National Insurance Group (Utica) and AMI Graphics. The CAB determined that, although the Workers' Compensation Law entitled the petitioner to attorney's fees and costs associated with litigating the merits of her workers' compensation claim, it did not further entitle her to fees and costs incurred in successfully litigating the fee dispute. We reverse and remand.

         The record supports the following facts. In May 2014, the petitioner was injured while working for AMI Graphics. The respondents disputed that the petitioner was entitled to workers' compensation benefits and requested a hearing at the Department of Labor (DOL). In April 2015, a hearing officer found in favor of the petitioner, concluding that the petitioner had "sustained a compensable work related injury, " and that "the medical care in dispute [was] reasonable, necessary and causally related" to the injury. Utica was ordered to pay the petitioner's medical bills.

         Shortly thereafter, the petitioner requested that Utica reimburse her for attorney's fees and costs that she had incurred in litigating her claim at the DOL. The fees and costs totaled $3, 486.50. In support of her request, the petitioner argued that, because she had succeeded on the issue of "disputed medical bill[s], " RSA 281-A:44, VI entitled her to an award of attorney's fees and costs. That provision provides:

[W]hen an insurance carrier . . . disputes the causal relationship of a medical bill to the claimant's injury, or whether a medical bill was required by the nature of the injury, and denies payment of such bill, [and] is after a hearing, ordered to pay or reimburse the bill . . . the claimant shall be entitled to reimbursement of reasonable counsel fees and costs as approved by the commissioner.

RSA 281-A:44, VI (Supp. 2016) (emphasis added). The respondents objected, asserting that they had not disputed the payment of "specific medical bills" at the DOL hearing. The hearing officer denied the petitioner's request.

         The petitioner appealed to the CAB. The CAB agreed with the petitioner and ordered Utica to reimburse the petitioner the full amount of the fees and costs that she had requested. The respondents did not appeal.

         The petitioner then requested that Utica reimburse her an additional $4, 299.49 for attorney's fees and costs, which she had incurred in her successful effort to recover her fees and costs. She argued that the fees and costs eligible for reimbursement under RSA 281-A:44, VI include the additional fees "incurred in conducting the appeal to have the attorneys' fees paid." The respondents objected.

         The CAB denied the petitioner's request for the additional fees and costs. Rather than analyzing the petitioner's request under paragraph VI of RSA 281-A:44, the CAB examined whether she was entitled to additional fees and costs under paragraph I, a separate fee-shifting provision. See RSA 281-A:44, I (Supp. 2016) (providing for award of attorney's fees to employees for certain successful appeals to the CAB or this court). The CAB denied her request, concluding that the petitioner did not satisfy the requirements of paragraph I. The petitioner moved for rehearing and reconsideration, which the CAB denied. This appeal followed.

         On appeal, the petitioner argues that the CAB erred when it denied her request for the attorney's fees and costs that she incurred in successfully litigating her entitlement to attorney's fees and costs. She argues that she is entitled to reimbursement under either paragraph I or paragraph VI of RSA 281-A:44, as well as under various administrative rules promulgated by the DOL.

         The respondents counter that the CAB correctly denied the second request for attorney's fees and costs because the petitioner did not meet the requirements of RSA 281-A:44, I. Although the respondents also appear to challenge the CAB's first fee award, because they failed to file a timely appeal, that decision is now final. See RSA 281-A:43, II (Supp. 2016). Thus, we need only decide whether the CAB erred when it denied the petitioner's second request for fees and costs. Because we agree with the petitioner that, under these circumstances, RSA 281-A:44, ...


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