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.
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.
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
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
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.
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
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, 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.
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, ...