New Hampshire Municipal Workers' Compensation Fund v. Smith

474 A.2d 990, 124 N.H. 526, 1984 N.H. LEXIS 240
CourtSupreme Court of New Hampshire
DecidedFebruary 23, 1984
DocketNo. 83-035
StatusPublished
Cited by1 cases

This text of 474 A.2d 990 (New Hampshire Municipal Workers' Compensation Fund v. Smith) 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
New Hampshire Municipal Workers' Compensation Fund v. Smith, 474 A.2d 990, 124 N.H. 526, 1984 N.H. LEXIS 240 (N.H. 1984).

Opinion

King, C.J.

This workers’ compensation case arises on an interlocutory transfer without ruling from the Superior Court {Flynn, J.). At issue is whether the benefits to be awarded a “part-time, special” police officer, who has been injured on the job, should be based on an average weekly wage computed under RSA 281:2, YII(l) or under RSA 281:2, VTI(2) (Supp. 1983). We hold that RSA 281:2, VII(2) (Supp. 1983) does not apply to “part-time, special” officers. [528]*528Therefore, the amount of benefits to be awarded such officers must be determined based on an average weekly wage computed under the general provisions of RSA 281:2, VII(l).

On June 24, 1981, John E. Smith was injured when he was struck by a motor vehicle while performing his duties as a “part time, special” police officer for the Town of Hampton. Following the accident, Smith applied for and received workers’ compensation benefits from the New Hampshire Municipal Workers’ Compensation Fund, a corporation which provides workers’ compensation coverage for the Town of Hampton. As a result of his injuries, Smith received temporary total disability benefits for a period of time while he was totally disabled, and is presently receiving permanent partial disability benefits.

The New Hampshire Municipal Workers’ Compensation Fund initially based Officer Smith’s disability benefits on an average weekly wage reflecting his actual hours, computed pursuant to RSA 281:2, VII(l). Under this provision, the average weekly wage of an employee is determined “by taking the gross earnings of the injured employee in the service of the same employer during the preceding 12 weeks, or a longer period, not to exceed one year, if more favorable to the injured, divided by the number of weeks.” RSA 281:2, VII(l).

Smith argued, however that he was entitled to maximum compensation benefits, irrespective of the actual hours he had worked, pursuant to RSA 281:2, VII(2), under which “the average weekly wage for volunteer or auxiliary members of a fire or police department or ambulance service of the state or any of its political subdivisions ... if injured while on duty, shall be deemed to be the average weekly wages that entitles them to the maximum benefits under this chapter.” (Emphasis added.) The New Hampshire Municipal Workers’ Compensation Fund refused to acknowledge Smith's alleged right to maximum benefits under this provision, however, maintaining that he was neither a “volunteer” nor an “auxiliary” member of a police department.

On October 8, 1981, at the request of Smith, a hearing was held before a hearings officer of the New Hampshire Department of Labor to adjudicate the rate of his temporary total disability benefits. The sole issue addressed was whether Smith, as a “part-time, special” police officer, was entitled to a computation of his average weekly wage under RSA 281:2, VII(2). On November 17, 1981, the department of labor ruled that a “part-time, special” police officer was in fact entitled to a computation of his average weekly wage under RSA 281:2, VII(2). The department concluded that “[t]he use [529]*529of the phrase ‘auxiliary either paid or unpaid,’ was a clear attempt [by the legislature] to have all part-time officers receive maximum benefits.”

The New Hampshire Municipal Workers’ Compensation Fund appealed this decision of the labor department to the superior court, which transferred the following controlling question of law to this court for resolution:

“Whether John E. Smith, having been appointed a special police officer and having been injured in the course of his employment as a part-time police officer for the Town of Hampton, is entitled to a computation of his average weekly wage that would entitle him to maximum benefits under the statute pursuant to RSA 281:2(VII)(2) or rather whether his average weekly wage should be computed from his gross earnings in the service of the Town of Hampton, pursuant to RSA 281:2(VII)(1).”

We recognize the fact that RSA 281:2, VII(2) has recently been amended. Laws 1983, 392:5. We find, however, that this amendment has not substantively changed any of the provisions relevant in this case; therefore, we will refer to the current version of the statute, which is codified at RSA 281:2, VII(2) (Supp. 1983).

In RSA 281:2, VII(l), the legislature sets forth the method for computing the average weekly wage of an employee who has been injured on the job and is seeking workers’ compensation benefits. A few specified categories of employees, however, have been expressly exempted by the legislature from this general provision. The average weekly wage of these employees, pursuant to RSA 281:2, VII(2) and (3), is “deemed to be the average weekly wage that entitles them to the maximum benefits” provided under the workers’ compensation statute. “Volunteer” and “auxiliary” members of a police department are two categories of employees whose average weekly wage is deemed to be that which entitles them to maximum benefits. RSA 281:2, VII(2)(A) (Supp. 1983).

In the instant case, the claimant is seeking to recover additional workers’ compensation benefits. He argues that the labor department properly construed the term “auxiliary” in RSA 281:2, VII(2)(A) (Supp. 1983) to include “part-time, special” police officers and that his average weekly wage, which controls the amount of his benefits, should therefore be computed pursuant to that section. In order to decide whether the claimant in this case is entitled to the increased benefits he seeks, we must determine whether a “part-time, special” police officer is in fact an “auxiliary” member of a police department within the meaning of RSA 281:2, VII(2XA) [530]*530(Supp. 1983). Our first step, therefore, must be to determine the meaning and scope of the term “auxiliary” police officer.

Although various police departments currently use the term “auxiliary” to connote specific classifications of officers within their departments, in construing the statute the question becomes what the term meant to the legislature. State v. Downes, 79 N.H. 505, 506, 112 A. 246, 247 (1920). In enacting RSA 281:2, VII(2) (Supp. 1983), the legislature did not define the term “auxiliary” police officer; therefore, we must rely on other means to determine legislative intent.

The sole statutory definition of auxiliary police is found within RSA 106-B:19, which authorizes the director of the State police “to recruit, train and organize an auxiliary state police force for the purpose of providing emergency services throughout the state for peacetime or wartime emergencies or threatened emergencies and for augmenting the state police force in such manner as the director may deem appropriate.” The statute further mandates that “[s]uch auxiliary force shall... serve for a period of not more than 90 days in any one year.”

This description of an auxiliary police forqe, as a force designed to assist the State police temporarily in the event of an emergency, is consistent with the ordinary meaning attributed to the word “auxiliary.” As defined by The American Heritage Dictionary of the English Language (1981), the adjective “auxiliary” means “giving assistance or support”; “subsidiary; supplementary”; “held in or used as a reserve.” An auxiliary State police officer, as defined by RSA 106-B:19, would not be a regularly employed member of the State police force, but rather an officer called to duty to assist the State police when needed.

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Bluebook (online)
474 A.2d 990, 124 N.H. 526, 1984 N.H. LEXIS 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-hampshire-municipal-workers-compensation-fund-v-smith-nh-1984.