Appeal of Brown

720 A.2d 66, 143 N.H. 112, 1998 N.H. LEXIS 78
CourtSupreme Court of New Hampshire
DecidedNovember 4, 1998
DocketNos. 93-505; 96-602
StatusPublished
Cited by13 cases

This text of 720 A.2d 66 (Appeal of Brown) 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 Brown, 720 A.2d 66, 143 N.H. 112, 1998 N.H. LEXIS 78 (N.H. 1998).

Opinion

JOHNSON, J.

The petitioner, Eugene Brown, appeals a decision of the compensation appeals board (board) dismissing his claim on the basis of defective notice. In addition, Brown requests that we grant a motion for attorney’s fees associated with a prior appeal to this court. We reverse and remand.

This is Brown’s second appeal on the issue of notice. Both appeals arose from the following facts as adduced at the most recent hearing before the board in October 1995. Brown was employed as a laborer during the construction of the Seabrook Nuclear Power Plant in January 1982. A subsidiary of respondent Perini Construction (Perini) was a subcontractor at the Seabrook construction project. The respondent’s insurer, Commercial Union Insurance Company (Commercial Union), was the workers’ compensation carrier for the entire Seabrook project. Brown testified that on January 13, 1982, he suffered an injury to his elbow and upper arm while lifting some construction materials at the Seabrook site. Brown stated that he continued working despite the pain in his arm. He further testified [114]*114that when the pain failed to subside two days later, he reported the injury to two of Perini’s foremen who told Brown to “get it on the record” by reporting the injury to the on-site nurse, Kenneth Weller. Although Nurse Weller did not remember Brown’s visit to the first-aid station at Seabrook, he did complete a “Minor Injury Report” detailing the time and date of Brown’s treatment and nature of the injury. The report indicates that Nurse Weller instructed Brown to obtain an orthopedic evaluation and “keep us informed.” Brown subsequently saw Dr. Albright, who recommended that Brown have surgery on his arm. According to Brown, he refused surgery and continued working at Seabrook because he could not afford to take time off from work. Brown testified that he sought no further treatment until 1991, and he eventually had surgery on his elbow in January 1992.

■ Brown filed a notice of accidental injury form with the department of labor in October 1991 and was subsequently denied benefits by Commercial Union. Brown’s claim with the department of labor was denied in April 1992 on the basis that he had failed to give his employer timely notice. See RSA 281:16, :17 (1977) (repealed) (employee must give notice of injury to employer in a timely fashion); cf. RSA 281-A:21-a (Supp. 1997) (enacted after the employee’s alleged accident, statute requires that employee file claim for benefits within three years of date of injury). Brown appealed to the board which held, on May 5, 1993 (1993 decision), that even if the respondent and its insurer had received defective, but timely notice, they were prejudiced by Brown’s nine-year delay in filing his claim. See RSA 281:17 (1977) (repealed) (defective notice will not bar a claim unless employer is prejudiced by the defect). This court reversed the board in an unpublished order dated December 14, 1994, on the basis that although the respondent received actual, albeit defective notice, there was no evidence in the record to support the board’s finding of prejudice. We remanded the case for further proceedings on that issue. On remand, the board held an evidentiary hearing on October 25, 1995, and, in April 1996, denied Brown’s claim (1996 decision) on the basis that the respondent and its insurer had shown that they were prejudiced by Brown’s defective notice.

One week after our 1994 decision remanding the case to the board for further proceedings, Brown filed a request for attorney’s fees with the department of labor. See RSA 281-A:44 (Supp. 1997); RSA 281:37-a (1987) (repealed). The respondent objected, claiming that Brown was not entitled to fees because he had not yet received any workers’ compensation benefits. Although Brown included issues [115]*115regarding fees in his request for findings of fact and rulings of law before the board on remand, Brown’s attorney informed the board at the October 1995 hearing that it could “ignore for now” those findings and concentrate on the issue of prejudice. Brown subsequently filed a motion with this court for attorney’s fees associated with his 1993 appeal to the board and the first appeal to this court. The respondent objected, and we subsequently accepted the fee issue for briefing and oral argument in conjunction with the pending appeal regarding the board’s 1996 decision.

I. Prejudice

Brown contends that the board erred in finding that the respondent was prejudiced by his failure to file written notice until 1991. “We will not overturn the board’s decision, except for errors of law, unless the petitioner has shown it to be clearly unreasonable or unjust.” Appeal of Lalime, 141 N.H. 534, 537, 687 A.2d 994, 997 (1996); see RSA 541:13 (1997).

In this case, the respondent bore the burden of proving that it was prejudiced by Brown’s defective notice. See Bolduc v. Company, 97 N.H. 360, 366, 89 A.2d 539, 541 (1952); RSA 281:17 (1977) (repealed). Whether an employer or carrier is prejudiced by defective notice of injury is a question of fact. See, e.g., Pike v. Gas Service Co., 573 P.2d 1055, 1057 (Kan. 1978). “The board’s findings of fact will not be disturbed if they are supported by competent evidence in the record upon which the board’s decision reasonably could have been made.” Appeal of Kehoe, 141 N.H. 412, 415, 686 A.2d 749, 752 (1996) (citation omitted). Although the determination of prejudice is one of fact, when it may properly be asserted is a question of law, see Bunten v. Davis, 82 N.H. 304, 311, 133 A. 16, 20 (1926), reviewable de novo by this court. Cf. Appeal of Hooker, 142 N.H. 40, 47, 694 A.2d 984, 988 (1997); RSA 541:13.

The board found that

had Commercial Union/Perini received proper notice, this case would have been investigated, reserved and tracked in a manner [which] is now impossible. Even activities which are not impossible at this stage . . . are likely to be unduly expensive to the carrier/employer due to the absence of information on witnesses’ whereabouts. Memories have clearly faded. It is impossible to encourage early medical treatment which may have reduced the severity of the harm.

[116]*116On appeal, Brown contends that because the respondent and its insurer failed to properly follow workers’ compensation procedures established by statute and their own policies regarding injury reporting, the respondent cannot now claim prejudice. We agree. Three witnesses testified that given the sheer size of the Seabrook project — which employed over ten thousand workers — the respondent and its insurer, apparently with the blessing of the department of labor, developed their own method of reporting workplace injuries. Specifically, when an employee was injured at the site, he or she would report to the on-site nurse, who would fill out a “minor injury card.” Only if the injury required outside care and the expenditure of money would a first report of injury be filed with the department of labor and insurance carrier. Normally, the insurance carrier would not be put on notice to manage and adjust the claim until after the first report of injury was filed. Notably, this ad hoc

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Cite This Page — Counsel Stack

Bluebook (online)
720 A.2d 66, 143 N.H. 112, 1998 N.H. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-brown-nh-1998.