Articles Posted in New Hampshire Supreme Court

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Petitioner Beverly Desmarais appealed 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. The New Hampshire Supreme Court reversed and remanded, finding that the evident purpose of paragraph VI of RSA 281-A:44 was to encourage claimants to obtain, and attorneys to provide, representation in a certain class of disputes regarding workers’ compensation benefits. The Court remanded to the CAB for a determination as to the reasonableness of the additional fees and costs that the petitioner incurred in litigating the fees and costs issue at the administrative level. Any party aggrieved by the CAB’s order on fees and costs may appeal to the Supreme Court pursuant to RSA chapter 541. View "Appeal of Beverly Desmarais" on Justia Law

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Plaintiff Beverly Cluff-Landry appealed a Superior Court order dismissing her case against defendant Roman Catholic Bishop of Manchester d/b/a St. Christopher School (the school). Two new students enrolled in the Pre-K program at the beginning of the 2011-2012 academic year, each of whom exhibited defiant behaviors, including “daily kicking, hitting, slapping, punching, spitting, biting, screaming, throwing things, and verbal abuse. Plaintiff reported to the principal “her concerns that the school was not adequately set up to handle [one of the students] due to his unsafe behaviors and the school’s inability to keep the other students safe, and that the behavior was in violation of the student-parent handbook.” In response to the plaintiff’s concerns, the principal “simply laughed.” The plaintiff continued to complain to the principal about the student, but the principal took no action. After the parents of a student complained that the defiant student was bullying their daughter, the principal expelled the defiant student. Thereafter, the principal’s alleged retaliation toward the plaintiff “escalated.” The principal ultimately placed the plaintiff on a “Teacher Improvement Plan.” She was given notice of the school’s intent to not renew her contract for the following school year in April; plaintiff’s last day of work was June 15, 2012. Plaintiff filed suit against the school alleging: (1) violations under the New Hampshire Whistleblowers’ Protection Act, by failing to renew her contract after she reported violations of school and public policies; (2) wrongful discharge, for failing to renew her contract; and (3) slander, based upon the principal’s comments to A&T. The school moved to dismiss, arguing that: (1) plaintiff’s factual allegations were insufficient to support a violation of the Act; (2) the wrongful discharge claim was barred by the statute of limitations, and also failed because the plaintiff’s employment was governed by a one-year contract; and (3) the alleged defamatory statements were not actionable because plaintiff consented to their publication. Following a hearing, the trial court granted the school’s motion. Finding no reversible error in the Superior Court’s judgment, the Supreme Court affirmed. View "Cluff-Landry v. Roman Catholic Bishop of Manchester" on Justia Law

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Petitioner-claimant Jason Malo appealed a Compensation Appeals Board (CAB) decision reducing the rate at which his indemnity benefits were paid from the temporary total disability rate to the diminished earning capacity rate. On appeal, he argued that the CAB erred by: (1) finding that his physical condition had improved since he sustained the original, compensable, work-related injury; (2) determining that the change in his physical condition affected his earning capacity; and (3) failing to make specific findings of fact and rulings of law sufficient to allow meaningful appellate review. Finding no reversible error, the Supreme Court affirmed. View "Appeal of Jason Malo" on Justia Law

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Petitioner Katherine Streeter appealed a New Hampshire Compensation Appeals Board (board) order denying her request for attorney’s fees under New Hampshire Administrative Rules, Lab 207.01(a)(4). In 2013, Streeter injured her left shoulder at work. She notified her employer and the employer filed a First Report of Injury with its insurance carrier the next day. Streeter would ultimately be diagnosed with tendonitis and referred for physical therapy. She received a steroid injection and was unable to work for two weeks, during which time the employer’s insurance carrier paid indemnity benefits. Streeter was awarded “payment of her medical treatment associated with this case, including, but not limited to, her surgery and physical therapy treatment . . . [and] indemnity benefits at the temporary total disability rate” from May through August 2014. Streeter’s attorney was awarded 20% of the retroactive indemnity award, pursuant to New Hampshire Administrative Rules, Lab 207.01(a)(1). Thereafter, her attorney requested additional fees. The hearing officer denied the request, finding that Streeter’s attorney was entitled only to 20% of the retroactive award and, thus, her “request for legal fees relative to the award of medical benefits [was] inappropriate under these circumstances.” On appeal, Streeter argued that “by paying benefits voluntarily after 21 days after notification of the claim,” the employer’s insurance carrier made a “de facto” determination pursuant to New Hampshire Administrative Rules, Lab 506.02 that her injury was compensable. After review, the Supreme Court determined that Streeter’s attorney was entitled only to “20% of the retroactive indemnity benefits payable out of the benefit received.” N.H. Admin. Rules, Lab 207.01(a)(1). View "Appeal of Katherine Streeter" on Justia Law

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Petitioner Thomas Phillips appealed a Compensation Appeals Board (CAB) decision denying his request for attorney’s fees in the amount of one-third of the value of workers’ compensation benefits awarded to him, as provided in a contingent fee agreement that he entered into with counsel. Petitioner argued that the CAB erred when it failed to award: (1) the contingent fee in accordance with the fee agreement; or (2) at least a “generous fee” under the circumstances of this case. The CAB ruled that, although contingent fee agreements in workers’ compensation cases were not per se unreasonable, the contingent fee requested in this case, which included one-third of all future benefits, was unreasonable. It stated that it was “not inclined to award fees based upon the hypotheticals counsel posed as to the gross amounts of indemnity or medical benefits the claimant may or may not receive over his lifetime.” The Supreme Court reversed and remanded. "[I]t appears that the CAB did not consider the merits of the petitioner’s proposed future cost estimate, but, rather, rejected the notion that any claimant could ever provide a reasonable estimate of the amount of future benefits. However, a blanket rule that future medical benefits are always speculative and, therefore, cannot be demonstrated, is contrary to our case law." Because the Court remanded to the CAB to make a new determination regarding counsel fees, the Court reserved ruling on the amount of fees to which petitioner was entitled in connection with the prior appeal and the appeal to the Supreme Court. View "Appeal of Thomas Phillips" on Justia Law

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Petitioner Carlos Marti appealed a Compensation Appeals Board (CAB) decision to dismiss his claim for reinstatement to his job with respondent Nashua Foundries, Inc. Petitioner injured his elbow at work. He informed respondent’s president of his injury, was given an over-the-counter medication, and returned to work. 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 petitioner to an occupational health clinic pursuant to company policy and the collective bargaining agreement governing petitioner’s employment. Against the president’s directive, 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. Petitioner did not grieve his termination under the collective bargaining agreement. Respondent’s workers’ compensation insurer accepted the claim and paid petitioner’s medical bills. Petitioner requested a hearing on his claims for reinstatement and back pay; respondent moved to dismiss for lack of jurisdiction. The CAB found that petitioner failed to challenge his termination by grieving it pursuant to the collective bargaining agreement. Respondent contended that because petitioner failed to grieve his termination, he could not challenge its legitimacy. The Supreme Court, after review, disagreed with respondent's contention: "[i]f this were correct, the petitioner would be considered to have been legitimately terminated for cause, and, under our interpretation of the statute herein, would not be an “employee” eligible for reinstatement under RSA 281-A:25-a, I. We cannot determine, however, whether the petitioner’s failure to grieve forecloses a challenge to his termination because the collective bargaining agreement is not contained in the record before us." Accordingly, the Court vacated and remanded for a determination on that issue and for further proceedings. View "Appeal of Carlos Marti" on Justia Law

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Farmington School District appealed a Board of Education (state board) decision reversing the decision of the Farmington School Board (local board) not to renew the employment contract of Demetria McKaig, a guidance counselor at Farmington High School. In November 2012, a student (Student A) and her boyfriend told McKaig and another guidance counselor that Student A was pregnant and that she wanted to terminate her pregnancy. Student A was fifteen years old at the time. McKaig suggested that Student A tell her mother about the pregnancy, but Student A refused. The principal expressed his view that the school should inform Student A’s mother about the pregnancy. McKaig disagreed, asserting that Student A had a right to keep the pregnancy confidential. McKaig spoke with Attorney Barbara Keshen of the New Hampshire Civil Liberties Union about Student A’s situation. Keshen’s opinion was that the judicial bypass law protected the confidentiality of Student A’s pregnancy and the fact that she was contemplating an abortion. McKaig relayed this opinion to Student A, and Student A made an appointment with a health center and another attorney to assist her with the judicial bypass proceedings. Meanwhile, the principal instructed the school nurse to meet with Student A to tell her that the school would inform her mother about her pregnancy. McKaig told the principal about her conversation with Keshen and urged him to contact Keshen to discuss Student A’s rights. The principal did not contact Keshen; however, Keshen contacted him. He told Keshen that the parental notification and judicial bypass laws did not prevent him from telling Student A’s mother about the pregnancy. Keshen instituted a petition for a temporary restraining order (TRO) against the principal to prevent him from contacting Student A’s mother. McKaig was named as the petitioner “ON BEHALF OF [Student A]”; she was not named in her individual capacity. The TRO was ultimately granted. Months later, McKaig received a notice of nonrenewal from the superintendent; in the written statement of the reasons for non-renewal, the superintendent listed three reasons: insubordination, breach of student confidentiality, and neglect of duties. After the hearing, the local board upheld McKaig’s nonrenewal on those grounds. McKaig appealed to the state board, which found, pursuant that the local board’s decision was “clearly erroneous.” The state board reversed the local board’s decision to uphold McKaig’s nonrenewal, but it did not order McKaig’s reinstatement or any other remedy. McKaig cross-appealed the state board’s decision and argued that she was entitled to reinstatement with back pay and benefits. The Supreme Court affirmed the state board’s reversal of the local board’s decision, and ordered that McKaig be reinstated to her former job. The case was remanded to the state board for further proceedings to determine whether she was entitled to additional remedies. View "Appeal of Farmington School District" on Justia Law

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Respondents Northridge Environmental, LLC and Arch Insurance Company (carrier), appealed a decision of the New Hampshire Compensation Appeals Board (CAB) granting a request by petitioner John Nicholson for reimbursement for home health care services provided to him by his wife, Angela Nicholson. Petitioner was seriously injured on the job while working for Northridge. After a period of hospitalization, petitioner was discharged but prescribed medication and follow-up care, which included home health services. Following the petitioner’s release from the hospital, he had multiple open wounds that required daily cleaning, and he “needed 24/7 care, due to balance problems, short term memory loss, and inability to perform certain regular activities of daily living.” Although petitioner’s wife did not have any formal medical training, she provided the required care, including cleaning his wounds, bathing him, dressing him, aiding him in the use of the bathroom, helping him move around, and constantly supervising him. Petitioner sought reimbursement at a rate of $15 per hour, 16 hours per day, between the date of his release from the hospital, and June 4, 2012, the date of the Department of Labor (DOL) hearing. The DOL denied the request for reimbursement. On remand to the CAB, respondents argued that because petitioner’s wife did not fall within the definition of a “health care provider” as used in RSA 281-A:2, XII-b (2010), her services were not reimbursable. Petitioner conceded that his wife was not a “doctor, chiropractor, or rehabilitation provider” as listed in RSA 281-A:2, XII-b, but he still asserted that her services were, nonetheless, reimbursable. The CAB first concluded that petitioner was entitled to reimbursement for his wife’s services. Regarding the amount of reimbursement, the CAB observed that petitioner’s wife offered inexact dates, times, and durations of various treatments that she provided and also lacked written records of her care. Nonetheless, the CAB concluded that it was reasonable to reimburse the petitioner for 12 hours per day at $15 per hour for the period between August 25, 2010, and June 4, 2012. The parties filed motions for reconsideration, which were denied. Finding no reversible error in the CAB's decision, the Supreme Court affirmed. View "Appeal of Northridge Environmental, LLC" on Justia Law

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Plaintiff Officer John Gantert appealed a superior court order that granted summary judgment to defendants the City of Rochester, the Rochester Police Department, and the Rochester Police Commission, on plaintiff’s claims of tortious interference with prospective advantageous business relations, violations of his procedural due process rights, and damage to his reputation. All of his claims stemmed from defendants’ alleged wrongful placement of plaintiff on a so-called “Laurie List” without affording him sufficient procedural due process. After review, the Supreme Court found that the procedures afforded to plaintiff in this case were adequate. As such, the Court affirmed the trial court’s judgment. View "Gantert v. City of Rochester" on Justia Law

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Petitioner Raymond Cover appealed a New Hampshire Compensation Appeals Board order denying his request for reinstatement to his former part-time position with the respondent, the New Hampshire Liquor Commission (Commission). 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. The board based its denial upon New Hampshire Administrative Rules, Lab 504.05(b)(3), which stated that part-time employees were ineligible for reinstatement under the Workers’ Compensation Law. On appeal, Cover argued that Lab 504.05(b)(3) conflicted with RSA 281-A:25-a and was therefore invalid. The New Hampshire Supreme Court concluded that the plain language of RSA 281-A:25-a supported Cover’s argument that the right of reinstatement extended to part-time employees. "By stripping part-time 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.' Rather, the rule impermissibly modifies the statute and is therefore invalid." The Court vacated the board’s order and remanded for further proceedings. View "Appeal of Raymond Cover" on Justia Law