2004 Fall, 36. An Old Conflict: Due process and the demand for efficiency in the administration of Workers' Compensation Appeals - did Appeal of Edward Fay seek the right balance?.

AuthorBy Beth Deragon

New Hampshire Bar Journal


2004 Fall, 36.

An Old Conflict: Due process and the demand for efficiency in the administration of Workers' Compensation Appeals - did Appeal of Edward Fay seek the right balance?

New Hampshire Bar Journal Fall 2004, Volume 45, Number 3 An Old Conflict(EN1): Due process and the demand for efficiency in the administration of Workers' Compensation Appeals - did Appeal of Edward Fay seek the right balance? By Beth Deragon INTRODUCTION

In 1991 New Hampshire's workers' compensation procedure was completely overhauled to rescue a system on the verge of collapse. The previous system relied on the resources and formal processes of the Superior Court for appellate review and had practically ground to a stop. The cost, number and adversarial nature of the cases brought before the court had escalated and become so unmanageable that the backlog threatened to defeat the essential purpose of the workers' compensation system prescribed by RSA 281-A. The consequence of the deliberate Superior Court process was that many people had to wait an unreasonable amount of time for their cases to be resolved and when their case finally was heard, Superior Court rules limited the extent to which their voices were heard, thus denying many claimants their opportunity to present their entire story to the tribunal(EN2). The 1991 reforms created a new process that replaced the \Superior Court's role with a new tribunal - the Compensation Appeals Board ("CAB") that would review and decide appeals in cases initially heard and ruled on by hearing officers employed by the New Hampshire Department of Labor.3

Thirteen years later, there is uncertainty as to the meaning of the de novo standard of review that the CAB applies to the cases it hears. The Board has interpreted it to mean that it may determine any issue originally before the hearing officer below. The Supreme Court has held the Board may consider and determine only those issues raised by an appealing party - that de novo refers only to the standard of review, not the scope. This article aims to illustrate that the de novo standard currently applied by the CAB conforms with legislative intent and CAB founders' and practitioners' understanding of that standard while the New Hampshire Supreme Court has been promulgating a de novo standard that originates from a 1970's unemployment de novo standard of review that some of the CAB founders specifically aimed to avoid.


The Court's current understanding of the CAB's de novo standard of review is reflected in its most recent decision in this area, Appeal of Edward Fay, where the Court held that the CAB exceeded its authority when it ruled on issues that were not raised at the department of labor hearing.4 The Court made clear its understanding by stating that, "The board's de novo review is limited to issues raised in the department of labor proceedings being appealed."5 However, the Court went further. It held that a decision made by the hearing officer on issues actually raised at the hearing could not be reviewed because neither party appealed that portion of the decision.6

In the Fay case, there were two hearings before labor department hearing officers on issues related to the same work-related injury. The first hearing, held in December 1999, addressed whether there was a causal relationship between Fay's November 1999 injury and his employment.7 The hearing officer found that there was a causal relationship between Fay's November 1999 injury and his employment and therefore Fay had a compensable claim that was the responsibility of his employer, Elliot Hospital ("employer").8 At the time of the injury, Fay's personal physician opined that he had a "full-time, full-duty work capacity" and that Fay did not "lose any time" as a result of his injury.9 The hearing officer for this December 1999 proceeding determined that he had no occasion to rule on the extent of Fay's disability and therefore did not.10 There was no appeal.

The second labor department hearing in this case took place almost 2

Fay appealed the hearing officer's denial of his claim for payment of the mental health and gastrointestinal bills to the CAB. Following a de novo hearing, the CAB found that: (1) Fay did not prove that he was disabled from the November 1999 injury; (2) The employer was responsible for medical bills related to his back injury on or before December 21, 1999; and (3) Fay did not establish that his mental health bills and other medical bills related to his anxiety problem [gastrointestinal] were the result of his November 1999 injury.16 Fay appealed the first and third of these rulings to the New Hampshire Supreme Court. DATE OF SUPREME COURT DECISION... The Court held that although Fay appealed to the CAB for a de novo hearing, he only raised one specific issue and the CAB should have ruled on that issue alone and no other.17 This assertion is the crux of the Court's understanding of de novo as applied to the CAB's standard of review of labor department hearing officer's decisions. Out of Fay there emerged a two-part test defining the CAB's standard of review: (1) The issue presented for CAB review must have been addressed by the hearing appealed from18 and; (2) The issue must have been raised in the appeal to the CAB. The Supreme Court has maintained that the CAB is without jurisdiction to consider and determine any other issue, regardless of whether such issues might be related to the issues that were the subject of the appeal. In the Fay case, the only way the CAB could lawfully reach the question of whether Fay was disabled by a statutory injury was if the defendant, who lost on that issue before the hearing officer, were to reopen the question by appealing it. As the employee was satisfied with the hearing officer's overall disposition, no appeal on that issue was made.

Some practitioners have said that the only way they believe they can responsibly respond to Fay is to automatically file cross appeals in the face of an opposing party's appeal, thus assuring that they preserve their client's rights to have the CAB consider all relevant issues. __This Fay-generated practice will burden the CAB process with the complexity and...

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