Appeal of Barry

700 A.2d 296, 142 N.H. 284, 1997 N.H. LEXIS 89
CourtSupreme Court of New Hampshire
DecidedSeptember 18, 1997
DocketNo. 95-581
StatusPublished
Cited by7 cases

This text of 700 A.2d 296 (Appeal of Barry) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Barry, 700 A.2d 296, 142 N.H. 284, 1997 N.H. LEXIS 89 (N.H. 1997).

Opinion

THAYER, J.

The petitioner, Kevin G. Barry, appeals an order of the Board of Trustees of the City of Manchester Employees’ Contributory Retirement System (retirement board) pursuant to RSA chapter 541, see Laws 1973, 218:18, reducing his disability pension based upon income generated from his trucking, lawn care, and paving business (DEAK Trucking). We affirm in part, vacate in part, and remand.

The facts are undisputed. The petitioner was formerly employed by the City of Manchester (city) as a refuse collector. In 1991, the petitioner sustained work-related injuries to his shoulder and back. As a result, the petitioner was determined medically unfit for further employment with the city. The petitioner received a lump sum settlement of workers’ compensation benefits. See RSA 281-A:37 (Supp. 1992) (amended 1993, 1994). The petitioner also received annual disability pension benefits from the city’s retirement system. See Laws 1973, 218:8, I, II.

The retirement board determined that the petitioner’s disability pension benefits for 1994 were $12,466.33. The retirement board [285]*285reduced the petitioner’s benefits by $9,370.96 after receiving the petitioner’s annual earnings information and income tax return. The reduction was based on income from DEAK Trucking.

DEAK Trucking was a sole proprietorship. The petitioner performed the work of the business himself. In 1994, the gross receipts of DEAK Trucking were $54,149. The cost of goods sold was $25,552. In calculating the reduction of the petitioner’s disability benefits, the retirement board apparently subtracted the cost of goods sold from the gross receipts, resulting in a gross profit of $28,597. Using that figure, the retirement board calculated that the petitioner’s benefits should be reduced by $9,370.96.

The petitioner disputed the reduction, arguing that the board should have subtracted from gross profits the cost of advertising; car and truck expenses; depreciation; legal and professional services; office expenses; rent or lease of vehicles, machinery, and equipment; repairs and maintenance; and supplies — all items that the petitioner listed as business expenses on Schedule C of his federal income tax statement. After a hearing, the board upheld the $9,370.96 reduction. The petitioner’s motions for reconsideration and rehearing were denied. This appeal followed.

The city’s retirement system provides, among other things, a retirement pension for city employees who become disabled. See Laws 1973, 218:8, II. The act, however, reduces a disabled retiree’s pension benefits based on “pay” that a retiree receives if the retiree is engaged in “substantial gainful employment.” See Laws 1973, 218:8, III. The act provides in pertinent part:

If the retirement board finds that any disability retiree is engaged in any substantial gainful employment which is found by the board to be other than for the primary purpose of rehabilitation, his disability retirement shall be reduced if such gainful occupation pays more than the difference between his retirement allowance and his average final compensation ....

Id.

On appeal, the petitioner argues that the retirement board erred in reducing his disability benefits by the income generated from DEAK Trucking because: (1) the business was not “substantial gainful employment”; (2) the business was for “the primary purpose of rehabilitation”; and (3) the board unreasonably calculated “pay” that he received. We do not reach the petitioner’s State and federal constitutional claims because we decide the case on nonconstitutional grounds. See Appeal of Barry, 141 N.H. 170, 174, [286]*286681 A.2d 75, 77 (1996); see also State v. Hodgkiss, 132 N.H. 376, 379, 565 A.2d 1059, 1061 (1989). An order of the retirement board shall not be set aside or vacated except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that such order is unjust or unreasonable. RSA 541:13 (1974); see Barry, 141 N.H. at 173, 681 A.2d at 77.

We first address the petitioner’s argument that his business did not constitute “substantial gainful employment,” a. prerequisite to reducing disability benefits. See Laws 1973, 218:8, III. The petitioner contends that DEAK Trucking was a “new and speculative business venture” that provided only “nominal earnings.” The retirement board defined “substantial gainful employment” according to its internal administrative regulations as work “that reasonably conforms with the individual’s age, education, training, temperament and mental and physical capacity to adapt to other forms of labor than that to which the individual was accustomed.” The retirement board found that the petitioner’s employment satisfied this definition.

“In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole.” Welch v. Director, N.H. Div. of Motor Vehicles, 140 N.H. 6, 8, 662 A.2d 292, 293 (1995) (quotation omitted). When construing a statute, “we ascribe the plain and ordinary meanings to the words used.” Milette v. N.H. Retirement System, 141 N.H. 342, 345, 683 A.2d 531, 532-33 (1996) (quotation omitted). Though the statute does not define “substantial gainful employment,” the retirement board’s construction of the term comports with the plain meaning of the words. See WEBSTER’S Third New International dictionary 2280 (unabridged ed. 1961) (defining “substantial”). We cannot say the statute requires the employment to provide more than nominal earnings to be substantial and gainful; in any event, disability retirement benefits will be reduced only if “such gainful occupation pays more than the difference between [the petitioner’s] retirement allowance and his average final compensation.” Laws 1973, 218:8, III.

The petitioner next argues that the retirement board incorrectly defined his “pay” for purposes of the statute. Under the statute, if the petitioner’s pay derived from gainful employment and his disability benefits exceed his previous compensation, the petitioner’s benefits must be reduced based on a formula contained in the statute. Id. Accordingly, the retirement board must first compute the. petitioner’s “pay” from gainful employment to determine the [287]*287appropriate benefit reduction, if any. See id. Here, the retirement board equated “pay” with gross profit from the petitioner’s business. “Gross profit” is “[t]he difference between sales and the cost of goods sold before allowance for operating expenses and income taxes.” BLACK’S Law DICTIONARY 703 (6th ed. 1990). We hold that the retirement board erred in equating “pay” with the gross profit of the petitioner’s business.

“Pay” is not defined by the statute. As for its plain and ordinary meaning, “pay” is defined as “[c]ompensation; wages; salary; commissions; fees.” Id. at 1128. Business expenses are not part of an individual’s compensation, wages, salary, commissions, or fees.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pelkey v. Dan's City Used Cars, Inc.
163 N.H. 483 (Supreme Court of New Hampshire, 2012)
Appeal of Wilson
20 A.3d 1006 (Supreme Court of New Hampshire, 2011)
New Hampshire Department of Resources & Economic Development v. Dow
803 A.2d 581 (Supreme Court of New Hampshire, 2002)
American Express Travel v. Moskoff
738 A.2d 358 (Supreme Court of New Hampshire, 1999)
State v. Sargent
738 A.2d 351 (Supreme Court of New Hampshire, 1999)
Pheasant Lane Realty Trust v. City of Nashua
720 A.2d 73 (Supreme Court of New Hampshire, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
700 A.2d 296, 142 N.H. 284, 1997 N.H. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-barry-nh-1997.