Appeal of Raymond Cover

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Compensation Appeals Board
No. 2014-0583

APPEAL OF RAYMOND COVER
(New Hampshire Compensation Appeals Board)

Argued: November 10, 2015
Opinion Issued: February 26, 2016

Shaheen & Gordon, P.A., of Nashua (Jared O’Connor on the brief and
orally), for the petitioner.

Sulloway & Hollis, P.L.L.C., of Concord (Katherine DeForest on the brief,
and David W. Johnston orally), for the respondent.

HICKS, J. The petitioner, Raymond Cover, appeals an order of the New
Hampshire Compensation Appeals Board (board) denying his request for
reinstatement to his former part-time position with the respondent, the New
Hampshire Liquor Commission (Commission). The board based its denial upon
New Hampshire Administrative Rules, Lab 504.05(b)(3), which states that part-
time employees are ineligible for reinstatement under the Workers’
Compensation Law. On appeal, Cover argues that Lab 504.05(b)(3) conflicts
with RSA 281-A:25-a and is therefore invalid. See RSA 281-A:25-a (2010). We
agree, and, accordingly, vacate the board’s order and remand.

The board found, or the record supports, the following facts. Cover was
a part-time employee of the Commission. In late May 2013, he sustained a
work-related injury. The Commission sent him workers’ compensation forms
on June 5 and warned him that he faced termination if he did not provide
medical documentation by June 14 to justify his absence from work. On June
6, Cover gave the forms to his physician, who submitted them to the
Commission on June 17, three days after the Commission’s deadline.

Cover acknowledged that he did not submit any medical documentation
to the Commission by June 14. On June 13, the Commission’s insurance
carrier denied Cover’s workers’ compensation claim, stating that it had not
received medical documentation concerning his injury. On June 17, the
Commission terminated Cover’s employment.

Cover requested a hearing with the New Hampshire Department of Labor
on June 27, which was granted. At the hearing, Cover contested the denial of
his workers’ compensation claim and requested reinstatement. The hearing
officer found that Cover’s injury was compensable, awarded diminished earning
capacity rate benefits, and ordered that the carrier pay for his medical
expenses. However, the hearing officer denied Cover’s request for
reinstatement citing Lab 504.05[(b)(3)], which, the hearing officer stated,
rendered part-time employees ineligible for reinstatement.

Cover appealed to the board, arguing that Lab 504.05(b)(3) is invalid
because it conflicts with RSA 281-A:25-a. The board affirmed the hearing
officer’s decision. In its order, the board notes that the Commission terminated
Cover for his failure to submit medical documentation by June 14, and states:
“Pursuant to the Commission’s policy the claimant was classified as a part-
time employee. [Lab 504.05(b)(3)] excludes part-time employees from eligibility
for reinstatement. Any remedy in this case is legislative or regulatory.” The
order concludes by stating: “For the reasons given above the claimant is not
entitled to be reinstated to his former part-time position.”

Cover moved for rehearing, and the Commission objected. In its
objection, the Commission requested that the board affirm its conclusion that
Cover was ineligible for reinstatement on two alternate grounds: Lab
504.05(b)(3) and Cover’s termination. In denying the motion, the board did not
mention Cover’s termination. The board stated that “[a]ny inconsistency
between [RSA 281-A:25-a] and administrative rule [Lab 504.05(b)(3)]
constitutes an issue of statutory construction that is vested exclusively with
the [New Hampshire] Supreme Court.” This appeal followed.

On appeal, Cover again raises the issue of Lab 504.05(b)(3)’s validity.
However, prior to oral argument, the Commission filed a supplemental
memorandum of law in which it contested our subject matter jurisdiction over
Cover’s appeal. We address the Commission’s jurisdictional argument first.

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 “A challenge to subject matter jurisdiction may be raised at any time
during the proceeding, including on appeal . . . .” Close v. Fisette, 146 N.H.
480, 483 (2001). The Commission argues that RSA 541-A:24 creates the only
mechanism by which Cover could have challenged the validity of Lab
504.05(b)(3): a declaratory judgment action in which the Department of Labor,
the agency that promulgated Lab 504.05(b)(3), is joined as an opposing party.
See RSA 541-A:24 (2007). Because Cover instead brought his challenge before
the board, the Commission argues that his claim is therefore not properly
before this court.

Addressing the Commission’s argument requires that we interpret RSA
541-A:24. “Statutory interpretation is a question of law, which we review de
novo.” Petition of Malisos, 166 N.H. 726, 729 (2014). In matters of statutory
interpretation, “[w]e are the final arbiter of the intent of the legislature as
expressed in the words of the statute considered as a whole.” Appeal of Wilson,
161 N.H. 659, 662 (2011). “We first examine the language of the statute and
ascribe the plain and ordinary meanings to the words used.” Id. “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. Appeal of Local Gov’t Ctr., 165 N.H. 790, 804 (2014). “We construe
all parts of a statute together to effectuate its overall purpose and avoid an
absurd or unjust result.” Id. “Moreover, we do not consider words and
phrases in isolation, but rather within the context of the statute as a whole.”
Id. “This enables us to better discern the legislature’s intent and to interpret
statutory language in light of the policy or purpose sought to be advanced by
the statutory scheme.” Id.

RSA 541-A:24 describes a mechanism by which parties may challenge
the validity of an agency rule:

The validity or applicability of a rule may be determined in an
action for declaratory judgment in the Merrimack county superior
court if it is alleged that the rule, or its threatened application,
interferes with or impairs, or threatens to interfere with or impair,
the legal rights or privileges of the plaintiff. The agency shall be
made a party to the action. A declaratory judgment may be
rendered whether or not the plaintiff has requested the agency to
pass upon the validity or applicability of the rule in question.

RSA 541-A:24 (emphasis added). The Commission argues that “the word ‘may’
[in the statute] is meant to express a right . . . to challenge a rule’s validity.”
The Commission contends that “[i]f that right is exercised, then the action
must be filed in the Merrimack county superior court, and it must name the
agency that adopted the rule.” According to the Commission, this procedure is
the only way that Cover could have challenged the validity of Lab 504.05(b)(3).
We disagree.

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 We take exception to the Commission’s understanding of the word,
“may,” in RSA 541-A:24. The first two definitions of “may” in Black’s Law
Dictionary are “[t]o be permitted to” and “[t]o be a possibility.” Black’s Law
Dictionary 1127 (10th ed. 2014). Moreover, in New Hampshire, it is a “general
rule of statutory construction” that “may” is permissive, not mandatory.
Appeal of Coos County Comm’rs, 166 N.H. 379, 386 (2014) (quotations
omitted). Thus, contrary to the Commission’s interpretation, the word “may” in
the statute indicates that a declaratory judgment action is one possible
mechanism by which Cover could have challenged Lab 504.05(b)(3)’s validity.
See RSA 541-A:24. This interpretation is bolstered by the statute’s final
sentence, which states: “A declaratory judgment may be rendered whether or
not the plaintiff has requested the agency to pass upon the validity . . . of the
rule.” Id. This sentence alludes to other mechanisms by which a party may
challenge a rule’s validity, which, as provided by the statute, will not prevent
that party from filing a declaratory judgment action.

Moreover, the Commission’s interpretation of RSA 541-A:24 is
inconsistent with our case law. In prior cases, we have reviewed challenges to
agency rules that the parties did not initially raise in declaratory judgment
actions under RSA 541-A:24. In Petition of Mooney, 160 N.H. 607 (2010), the
petitioner challenged the validity of a rule in a hearing before the New
Hampshire Department of Safety that permitted the agency to require the
petitioner to undergo additional alcohol dependency treatment before lifting the
suspension of his driver’s license. Mooney, 160 N.H. at 608. The Department
of Safety determined that the rule was valid, the petitioner appealed to this
court, and we affirmed. Id. at 609, 612.

In another case, Appeal of Wilson, 161 N.H. at 660-61, we reviewed a
decision of the New Hampshire Board of Tax and Land Appeals denying the
petitioners’ requested tax abatement because they failed to sign an abatement
application form as required by an agency rule. We affirmed, rejecting the
petitioners’ challenge to that rule’s validity. Id. at 663, 665. We note that, in
Appeal of Wilson, the respondent was not the agency that promulgated the
abatement application rule, but the town that had denied the petitioners’
requested abatement. Id. at 660. Thus, in Appeal of Wilson, we not only
reviewed a challenge to a rule’s validity in an action that did not involve a
request for declaratory judgment, but did so without requiring that the
petitioners join as a respondent the agency that promulgated the rule.

Finally, in Reno v. Hopkinton, 115 N.H. 706, 706-08 (1975), an action
that did not involve a request for declaratory judgment, we held a rule invalid
even though the promulgating agency was neither a party to the petitioner’s
action nor the body that adjudicated the petitioner’s challenge in the first
instance. These cases show that, apart from a declaratory judgment action
under RSA 541-A:24, we have recognized at least one other mechanism by
which a party may challenge the validity of an agency rule: the party may

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challenge a rule in an administrative proceeding subject to our appellate
review. Finding nothing in the text of RSA 541-A:24 or our case law to support
the Commission’s argument that a declaratory judgment action was the only
way that Cover could have contested the validity of Lab 504.05(b)(3), we reject
the Commission’s argument that we lack subject matter jurisdiction over
Cover’s appeal.

The Commission also argues that we need not reach the issue of the
rule’s validity because the board determined that Cover was ineligible for
reinstatement on alternate grounds. Specifically, the Commission points to
language in the board’s order concerning Cover’s termination for “fail[ure] to
comply with the attendance policy applicable to all [Commission] employees.”
Cover does not deny that he failed to provide medical documentation to the
Commission by the June 14 deadline. He, instead, argues that the board did
not deny his request for reinstatement on the basis of his termination. Rather,
he argues, it is “clear from reviewing the [b]oard’s decision that the decisive
issue [was] the question of law,” that is, the validity of Lab 504.05(b)(3).

To resolve this issue, we look to the board’s two orders: the first denying
reinstatement and the second denying Cover’s motion for rehearing. The
board’s first order mentions Cover’s termination for his failure to submit his
paperwork on time, but it does not explicitly find that the termination rendered
Cover ineligible for reinstatement. Instead, the board concludes its order by
emphasizing Cover’s part-time status and pointing to the rule, which the board
found, renders part-time employees ineligible for reinstatement. The board
then states that “[a]ny remedy in this case is legislative or regulatory,” which
supports Cover’s argument that the board based its denial of reinstatement on
regulatory grounds, rather than on his termination.

The board’s order denying Cover’s motion for rehearing provides further
support for the conclusion that the rule was the basis for the board’s refusal to
order his reinstatement. In its objection to Cover’s reconsideration motion, the
Commission requested that the board “[a]ffirm its conclusion that [Cover] is not
entitled to reinstatement on two grounds,” Lab 504.05(b)(3) and Cover’s
termination. In denying the motion, however, the board’s order refers only to
the rule, stating that “[a]ny inconsistency between [RSA 281-A:25-a] and
administrative rule [Lab 504.05(b)(3)] constitutes an issue of statutory
construction that is vested exclusively with the [New Hampshire] Supreme
Court.” Because the board’s orders show that it determined Cover’s ineligibility
for reinstatement on the basis of Lab 504.05(b)(3), we limit our review
accordingly. Whether Cover’s termination rendered him ineligible for
reinstatement is a separate issue that we need not address in this appeal.

“We will overturn the [board’s] decision only for errors of law, or if we are
satisfied by a clear preponderance of the evidence before us that the decision is
unjust or unreasonable.” Appeal of Dean Foods, 158 N.H. 467, 471 (2009); see

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RSA 541:13 (2007). “The [board’s] factual findings are prima facie lawful and
reasonable.” Appeal of Dean Foods, 158 N.H. at 471. As the appealing party,
Cover bears the burden of proof. Id.

Cover’s argument that the board erred in denying his request for
reinstatement proceeds in three parts. First, he contends that the right of
reinstatement in RSA 281-A:25-a extends to part-time employees. Then, he
argues that, because Lab 504.05(b)(3) excludes “part[-]time employee[s] as
defined by the employer’s personnel policy” from RSA 281-A:25-a’s right of
reinstatement, the rule conflicts with the statute and is therefore invalid.
(Quotation omitted.) Thus, Cover asks that we overturn the board’s order
denying reinstatement because the order rests upon an invalid agency rule.

“[T]he legislature may delegate to administrative agencies the power to
promulgate rules necessary for the proper execution of the laws.” Appeal of
Mays, 161 N.H. 470, 473 (2011). However, “[t]he authority to promulgate rules
and regulations is designed only to permit the [agency] to fill in the details to
effectuate the purpose of the statute.” Id. (quotation omitted). “Thus,
administrative rules may not add to, detract from, or modify the statute which
they are intended to implement.” Id. (quotation omitted).

Addressing Cover’s argument that RSA 281-A:25-a provides a right of
reinstatement for part-time employees requires that we engage in statutory
interpretation. See Appeal of Wilson, 161 N.H. at 662. In addition to our
standard principles of statutory interpretation, “[w]e construe the Workers’
Compensation Law liberally to give the broadest reasonable effect to its
remedial purpose.” Appeal of Phillips, 165 N.H. 226, 230 (2013). “Thus, when
construing it, we resolve all reasonable doubts in favor of the injured worker.”
Id.

Our analysis of the statute’s plain language in light of the overall scheme
and remedial purpose of the Workers’ Compensation Law leads us to conclude
that the legislature intended to extend the right of reinstatement to part-time
employees. RSA 281-A:25-a, I, sets forth the right of reinstatement for
“employee[s]”:

An employee of an employer who employs 5 or more employees,
who has sustained an injury, shall be reinstated by the employer
to the employee’s former position of employment upon request for
such reinstatement, if the position exists and is available and the
employee is not disabled from performing the duties of such
position, with reasonable accommodations for the employee’s
limitations.

RSA 281-A:25-a, I. The “Definitions” section of the Workers’ Compensation
Law provides, in pertinent part, that “[e]mployee, with respect to public

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employment,” means “[a]ny person in the service of an employer . . . under any
express or implied voluntary contract of hire.” RSA 281-A:2, VII(a)(1) (2010)
(quotation omitted). RSA 281-A:25-a, II(b) lists three categories of employees
who are not eligible for reinstatement:

(1) An employee hired on a temporary basis as a replacement
for an injured employee.

(2) An employee whose employer employs 4 or fewer
employees at the time of the employee’s injury and at the time of
the employee’s demand for reinstatement.

(3) An employee employed on a construction project, when
the project is completed.

We conclude that the plain language of RSA 281-A:25-a supports Cover’s
argument that the right of reinstatement extends to part-time employees. The
statute states that “employee[s] . . . who [have] sustained an injury, shall be
reinstated . . . upon request for such reinstatement.” The Law defines
“employee” broadly as “[a]ny person in the service of an employer.” RSA 281-
A:2, VII(a)(1).

Further, the list set forth in RSA 281-A:25-a, II(b) of employees ineligible
for reinstatement does not include part-time employees. Reading RSA 281-
A:25-a, II(b) to exclude part-time workers from the right of reinstatement would
contravene the “familiar axiom of statutory construction, expressio unius est
exclusio alterius: Normally the expression of one thing in a statute implies the
exclusion of another.” Appeal of Campaign for Ratepayers’ Rights, 162 N.H.
245, 251 (2011) (quotation omitted). Reading RSA 281-A:25-a to exclude part-
time workers would require us to “add language [to RSA 281-A:25-a, II(b) that]
the legislature did not see fit to include,” which we decline to do. Appeal of
Wilson, 161 N.H. at 662.

Finally, we reiterate that, when construing the Workers’ Compensation
Law, we read it “liberally to give the broadest reasonable effect to its remedial
purpose,” and we “resolve all reasonable doubts in favor of the injured worker.”
Appeal of Phillips, 165 N.H. at 230. Given that neither the “Definitions” section
of the Workers’ Compensation Law nor the text of RSA 281-A:25-a evinces an
intent to exclude part-time workers from the right of reinstatement, we resolve
any reasonable doubt about the scope of that right in Cover’s favor. We
therefore conclude that the right to reinstatement in RSA 281-A:25-a extends
to part-time employees.

Lab 504.05(b)(3) provides that an employer shall not be obligated to
reinstate “[a] part[-]time employee as defined by the employer’s personnel
policy.” N.H. Admin. Rules, Lab 504.05(b)(3). By stripping part-time

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employees of the right to reinstatement provided by RSA 281-A:25-a, the rule
cannot be characterized as a rule that merely “fill[s] in the details to effectuate
the purpose of the statute.” Appeal of Mays, 161 N.H. at 473. Rather, the rule
impermissibly modifies the statute and is therefore invalid. See id. Thus, we
vacate the board’s order and remand for further proceedings consistent with
this opinion.

Vacated and remanded.

DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred.

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