Appeal of Morin

669 A.2d 207, 140 N.H. 515, 1995 N.H. LEXIS 182
CourtSupreme Court of New Hampshire
DecidedDecember 19, 1995
DocketNo. 94-186
StatusPublished
Cited by20 cases

This text of 669 A.2d 207 (Appeal of Morin) 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 Morin, 669 A.2d 207, 140 N.H. 515, 1995 N.H. LEXIS 182 (N.H. 1995).

Opinions

BROCK, C.J.

The petitioner, Francois Morin, appeals from the denial of his workers’ compensation claim by the compensation [516]*516appeals board (board). He argues that the board erred as a matter of law when it denied his timely motion to continue the hearing because his treating physician was out of the country. We reverse and remand.

The petitioner asserts that he was injured on February 3, 1992, while working at Riley’s Sport Shop, a gun shop and shooting range. Morin, who was forty-three years old at the time of the injury, had been self-employed for twenty years as an electrician. He had worked at Riley’s since 1991, usually ten hours a day. Prior to beginning employment at Riley’s, he had not experienced any significant respiratory problems.

On the day of the injury, the owners had leased the facilities to a security firm, which had sent ten employees to qualify for shooting. The shooters used M-16 rifles and semi-automatic handguns from approximately 7:30 a.m. until 11:00 or 11:30 a.m. Although the shooting range was set up for recreational purposes, this security firm did not engage in recreational shooting. The firm’s supervisor testified that he had never before, in his twenty-five years’ experience, shot an M-16 indoors in a completely enclosed area.

Morin arrived at work at approximately 11:30 a.m., just as the shooters were finishing. He testified that he saw lead dust and powder covering the floors and walls of the range, in amounts and locations he had not seen before. The floor had to be washed several times. Morin’s only protection while cleaning up the range was a paint mask purchased by his employer, which was not designed to filter toxic materials found on the range. Morin had to change the filters on the air system because they were clogged; he had changed them only three days previously, although the normal time between changes was six to eight weeks.

Morin started to feel sick that same day and was unable to work the following day. On the fourth day, he felt so sick that he went to the emergency room at Elliot Hospital, where a test revealed an elevated level of lead in his system. From that point on, Morin was referred from one physician to another, until December 1992, when he was seen by Dr. David Christiani, an occupational lung disease specialist at Massachusetts General Hospital. Dr. Christiani diagnosed Morin’s problem as Reactive Airways Disease Syndrome (RADS), an asthma-like illness that arises after a single exposure to high levels of irritating toxins. Dr. Christiani continued to treat Morin for the disease.

Morin applied for workers’ compensation benefits based on his contracting RADS as a result of his employment at Riley’s. After a hearing, a hearing officer denied benefits. Morin timely appealed to [517]*517the board, which scheduled a hearing for June 15, 1998. On May 20, Morin filed a written request for a continuance of the hearing because Dr. Christiani was unavailable on that date. Several days after filing this request, Morin’s counsel telephoned the labor department and was advised that the request to continue was denied. On May 25, Morin requested reconsideration, but that too was denied.

Morin then sought to hire a substitute expert physician and retained the services of Dr. Glenn Bricker. Prior to the hearing, the respondent, Riley’s, filed an objection to Morin’s presentation of Dr. Bricker as a witness. On the morning of the hearing, when Morin’s attorney stated for the record that Morin had been denied a continuance, the board offered to continue the hearing until a date when Dr. Christiani could be present. At this point, with Dr. Bricker present and with other witnesses subpoenaed, Morin declined the board’s offer. The respondent then withdrew its objection to Dr. Bricker’s testifying.

The hearing went forward, and the board denied Morin’s claim. The board refused to credit the written medical opinion of Morin’s treating physician, Dr. Christiani, because the opinion incorrectly stated that Morin had been exposed to “a heavy plume of smoke for a two hour period.” Instead, the board credited the consulting physicians who testified on behalf of Riley’s but who had not treated Morin.

Morin filed a motion for rehearing, claiming that he was denied due process when the board denied his request to continue the hearing due to Dr. Christiani’s being in China on the date scheduled for the hearing. The board denied the motion for rehearing. Morin now appeals the board’s denial of benefits. Although the petitioner presents several arguments, we need address only one: whether the board erred when it denied Morin’s motion to continue the evidentiary hearing on the grounds that his treating physician, Dr. Christiani, was unavailable. We hold that it did.

Orders or decisions of the board “shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.” RSA 541:13 (1974); Appeal of Kehoe, 139 N.H. 24, 27, 648 A.2d 472, 474 (1994). In reviewing the board’s exercise of its discretion, we will apply the same standards as we apply to a trial court’s rulings. The board, like a trial judge, has broad discretion over the conduct of its proceedings, including its hearings. See Attitash Mt. Service Co. v. Schuck, 135 N.H. 427, 430, 605 A.2d 1067, 1069 (1992); cf. Jamestown Mut. Ins. Co. v. Meehan, [518]*518113 N.H. 639, 641, 312 A.2d 689, 691 (1973) (trial court has broad discretion). In particular, the question whether a continuance should be granted lies within the board’s sound discretion. See Tenn, Trustee v. 889 Associates, Ltd., 127 N.H. 321, 325, 500 A.2d 366, 369 (1985). But that discretion is not unlimited. The board may not abuse its discretion, even in matters of the manner and timing of a hearing. Jamestown Mut. Ins., 113 N.H. at 641, 312 A.2d at 691; see National Marine Underwriters v. McCormack, 138 N.H. 6, 9, 634 A.2d 1008, 1010 (1993). As for a trial judge, abuse of discretion by the board constitutes legal error. Hudson Bergen County R.L.S.A. v. Board of Com’rs of Hoboken, 52 A.2d 668 (N.J. 1947); see RSA 541:13. If the board abuses its discretion — whether by making arbitrary decisions; by failing to comply with the requirements of its governing legislation or with its own rules and regulations; or by failing to follow fair procedures — then we “will not hesitate to reverse” the agency’s decision. Pitts v. White, 109 A.2d 786, 788 (Del. 1954); see National Marine, 138 N.H. at 9, 634 A.2d at 1010; Allegro v. Afton Village Corp., 87 A.2d 430, 432 (N.J. 1952).

We agree with the New Jersey Supreme Court: a court or an agency should not lose sight of its “paramount objective” of rendering justice. Allegro, 87 A.2d at 432.

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Bluebook (online)
669 A.2d 207, 140 N.H. 515, 1995 N.H. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-morin-nh-1995.