Opinion
No. 83-020
Decided February 16, 1984
1. Workers' Compensation — Appeal and Review — Certiorari The statute provides that the findings of the labor commissioner in a workers' compensation case as to the amount of compensation and/or percentage of permanent partial loss are final; accordingly, review of this determination is solely by means of a petition for certiorari. RSA 281:26, IV.
2. Workers' Compensation — Appeal and Review — Certiorari Review of a determination of the labor commissioner as to amount of compensation and/or percentage of permanent partial loss is solely by means of a petition for certiorari, and a dispute regarding a decision of the deputy labor commissioner awarding permanent partial disability benefits to claimant for a 100% impairment of his left leg but only for a 50% impairment of his right leg, due to a preexisting 50% disability of that leg, could be characterized as a dispute as to the amount of compensation and/or percentage of permanent partial loss. RSA 281:26, IV.
3. Certiorari — Scope of Review — Action of State Agency The supreme court's standard of review on a petition for certiorari is whether the commissioner acted illegally with respect to jurisdiction, authority or observance of the law, whereby he arrived at a conclusion which could not legally or reasonably be made, or abused his discretion or acted arbitrarily, unreasonably, or capriciously.
4. Workers' Compensation — Pre-Existing Impairment In a workers' compensation case, where claimant sustained a work-related injury in 1970, as a result of which he was awarded permanent disability benefits for a 50% impairment of his right leg, and where claimant sustained a work-related injury in 1975 as a result of which he is now a quadriplegic and for which he was awarded permanent partial disability benefits for a 100% impairment of his left leg but only for a 50% impairment of his right leg, due to the preexisting 50% disability, the supreme court held that the deputy labor commissioner neither acted illegally nor abused his discretion with respect to either his determination of percentage of loss of use of the right leg or his calculation of the deduction for the previously compensated loss of use.
5. Workers' Compensation — Pre-Existing Impairment In a workers' compensation case, where claimant sustained a work-related injury in 1970, as a result of which he was awarded permanent partial disability benefits for a 50% impairment of his right leg, and where claimant sustained a second work-related injury in 1975 as a result of which he is now a quadriplegic and for which he was awarded permanent partial disability benefits for a 100% impairment of his left leg but only for a 50% impairment of his right leg, due to the pre-existing 50% disability, the supreme court affirmed the deputy labor commissioner's determination that a deduction was required for the previous 50% loss of use of claimant's right leg, since, although the workers' compensation law did not directly address the situation in the case, the legislature has required, in awarding subsequent benefits, a deduction of the award for an earlier partial loss of use, when such partial loss of use is followed by an amputation of that member of the body, and the supreme court believed that the statute requiring such deduction sufficiently indicated the legislature's intent to require a deduction for the previous award for 50% loss of use of the claimant's right leg from any determination of a subsequent 100% loss of use of that leg. RSA 281:26, I(v).
6. Workers' Compensation — Computation of Awards — Permanent Disability In a workers' compensation case, where claimant sustained a work-related injury in 1970, as a result of which he was awarded permanent partial disability benefits for a 50% impairment of his right leg, and where claimant sustained a second work-related injury in 1975 as a result of which he is now a quadriplegic and for which he was awarded permanent partial disability benefits for a 100% impairment of his left leg but only for a 50% impairment of his right leg due to the preexisting 50% disability, the supreme court held that the deputy labor commissioner appropriately calculated the deduction for the previous award, rejecting claimant's argument that the award should have been calculated by deducting the dollar amount he received for the 1970 injury from the dollar amount he would receive for a 100% loss of use from the 1975 injury, since the supreme court doubted that the legislature intended, in any case where there was a subsequent loss of use of a member, that if the compensation rate in effect at the time of the prior accident were lower, that difference would be made up at the time of the second injury. RSA 281:26, I(v).
7. Workers' Compensation — Computation of Awards — Interest On a petition for a writ of certiorari by claimant challenging a decision by the deputy labor commissioner regarding a workers' compensation award, where the supreme court upheld the deputy labor commissioner's award, and where the supreme court determined that it need not address the claimant's argument that he was entitled to interest on additional amounts due him since he had not prevailed on that issue, the supreme court did not by that determination foreclose the trial court's imposition of interest with respect to an unchallenged portion of the award should the trial court determine that the insurance carrier was unjustly enriched by reason of neglect of any duty it may have owed to the claimant. RSA 281:37-a (Supp. 1983).
Law Offices of James J. Kalled, of Ossipee (James J. Kalled on the brief, and John Pierce Kalled orally), for William S. Gunzel.
Wadleigh, Starr, Peters, Dunn Chiesa, of Manchester (Theodore Wadleigh on the brief and orally), for E. D. Swett, Inc., and Hartford Insurance Company.
This is a petition for a writ of certiorari challenging a decision by the deputy labor commissioner regarding a workers' compensation award. For the reasons which follow, we dismiss the petition.
In July 1970, the plaintiff, William S. Gunzel, received a work-related injury while employed by a company not involved in the present controversy. As a result of the injury, he was awarded permanent partial disability benefits for a 50% impairment of his right leg.
In August 1975, while in the employment of E. D. Swett, Inc., the plaintiff was involved in an automobile collision, in which he suffered severe fractures of the sixth and seventh cervical vertebrae. It is undisputed that the plaintiff is now a quadriplegic. As a result of the 1975 injury, the plaintiff was awarded permanent partial disability benefits for a 100% impairment of his left leg but only for a 50% impairment of his right leg, due to the preexisting 50% disability.
On March 1, 1982, the plaintiff was notified by the Hartford Insurance Company, E. D. Swett's insurance carrier, that no further disability checks were due him. At that time, the plaintiff had received no benefits for the impairment of his arms. He requested and was given a hearing on September 23, 1982, before the department of labor. By decision dated December 14, 1982, and further clarified by letter dated January 20, 1983, the deputy labor commissioner determined that the benefits calculated upon a 50% loss of use of the right leg were correct. The deputy commissioner further determined that the plaintiff has a 100% permanent impairment of both arms and that payments were due commencing as of March 1982.
On January 14, 1983, Mr. Gunzel filed a petition for certiorari with this court, seeking a review of the deputy commissioner's decision. He argues that: (1) he is entitled to an award for 100% impairment of his right leg despite the previous award for a 50% loss of use of the same leg; (2) assuming that a deduction for the prior award was warranted, the deduction the deputy commissioner made was improperly calculated; (3) he is entitled to a lump sum payment of the award for 100% impairment of his arms because the amount is past due; and (4) he is entitled to interest from the date each award accrued.
[1, 2] RSA 281:26, IV states that the findings of the labor commissioner as to the amount of compensation and/or percentage of permanent partial loss are final. Review of this determination is solely by means of a petition for certiorari. Cooper v. Roy M. Wright, Inc., 121 N.H. 181, 183, 427 A.2d 51, 52 (1981). The parties' dispute regarding the award for the impairment of the plaintiff's legs can be characterized as a dispute as to the amount of compensation and/or percentage of permanent partial loss.
[3, 4] Our standard of review on petitions for certiorari is whether "the commissioner acted illegally with respect to jurisdiction, authority or observance of the law, whereby he arrived at a conclusion which could not legally or reasonably be made, or . . . abused his discretion or acted arbitrarily, unreasonably, or capriciously." Id. at 183, 427 A.2d at 52-53. We hold that the deputy commissioner neither acted illegally nor abused his discretion with respect to either his determination of percentage of loss of use of the plaintiff's right leg or his calculation of the deduction for the previously compensated loss of use.
Our workers' compensation law does not directly address the situation presented in this case; that is, the determination of the proper award when a total loss of use follows an earlier partial loss of use. However, in awarding subsequent benefits, the legislature has required a deduction of the award for an earlier partial loss of use, when such partial loss of use is followed by an amputation of that member of the body. RSA 281:26, I(v). We believe this statute sufficiently indicates the legislature's intent to require a deduction for the previous award for 50% loss of use of the plaintiff's right leg from any determination of a subsequent 100% loss of use of that leg. We therefore affirm the deputy commissioner's determination that a deduction was required.
Further, the deputy commissioner calculated the required deduction appropriately. The plaintiff suggests that the dollar amount he received for the 1970 injury should be deducted from the dollar amount he would receive for a 100% loss of use from the 1975 injury. Computing the award in this manner would in effect make up for the lower pay rate which the plaintiff was receiving at the time of the previous injury. We doubt that the legislature intended, in any case where there was a subsequent loss of use of a member, that if the compensation rate in effect at the time of the prior accident was lower, that difference would be made up at the time of the second injury. The deputy commissioner properly determined the award by recognizing that there was an earlier 50% disability and that the subsequent accident, therefore, could represent only an additional 50% disability. RSA 281:26, I(v) indicates that awards for partial loss are calculated in proportion to awards for total loss.
In his petition, Mr. Gunzel has also raised the issue of when the payment of the award for his arms became due and his entitlement to a lump sum payment versus weekly benefits. This aspect of the deputy commissioner's decision is appealable to the superior court, and has been appealed by the plaintiff, under the statute in effect at the time of the deputy commissioner's decision. RSA 281:26, III (since amended by Laws 1983, 392:15). Accordingly, this issue is not properly before us in a petition for certiorari and we will not address it.
Finally, the plaintiff argues that he is entitled to interest on amounts due him under RSA 281:26 computed as of the date of his August 1975 injury. We need not address this issue with respect to interest accrued on any additional benefits due the plaintiff because of a miscalculation of the percentage of impairment of his right leg, since he has not prevailed on this issue. See RSA 281:37-a (Supp. 1983).
This determination, however, does not prejudice the plaintiff's argument that he is entitled to interest with respect to the award for the impairment of his arms. We do not foreclose the trial court's imposition of interest should it determine that the insurance carrier was unjustly enriched by reason of neglect of any duty it may have owed to the plaintiff.
Petition dismissed.
All concurred.