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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Compensation Appeals Board
No. 2014-0776


              APPEAL OF NORTHRIDGE ENVIRONMENTAL, LLC
                (New Hampshire Compensation Appeals Board)

                           Argued: October 8, 2015
                        Opinion Issued: March 22, 2016

      Law Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H.
Johnson on the brief and orally), for the petitioner.


      Mullen & McGourty, PC, of Bedford (Craig A. Russo and Emily Conant on
the brief, and Mr. Russo orally), for the respondents.

      BASSETT, J. The respondents, Northridge Environmental, LLC
(Northridge) and Arch Insurance Company (carrier), appeal a decision of the
New Hampshire Compensation Appeals Board (CAB) granting the request by
the petitioner, John Nicholson, for reimbursement for home health care
services provided to him by his wife, Angela Nicholson. We affirm.

        The CAB found, or the record supports, the following facts. In July
2010, the petitioner was seriously injured on the job while working for
Northridge. After a period of hospitalization, the petitioner was discharged on
August 25, 2010. The petitioner was prescribed medication and follow-up care,
which included home health services “through VNA of Southern Carroll County
. . . . This will include physical and occupational therapy, a home health aide,
and nursing services.” The respondents offered to pay for the prescribed
services, but the petitioner chose, instead, to have his wife provide the services.

       Following the petitioner’s release from the hospital, he had multiple open
wounds that required daily cleaning, and he “needed 24/7 care, due to balance
problems, short term memory loss, and inability to perform certain regular
activities of daily living.” Although the petitioner’s wife did not have any formal
medical training, she provided the required care to the petitioner, including
cleaning his wounds, bathing him, dressing him, aiding him in the use of the
bathroom, helping him move around, and constantly supervising him.

      In September 2011, the petitioner sought reimbursement from the
carrier for the services provided by his wife. After the carrier denied the
request, the petitioner asked for a hearing before the New Hampshire
Department of Labor (DOL). The petitioner sought reimbursement at a rate of
$15 per hour, 16 hours per day, between August 25, 2010, the date of his
release from the hospital, and June 4, 2012, the date of the DOL hearing. The
DOL denied the request for reimbursement.

      The petitioner appealed to the CAB. Following a de novo hearing, the
CAB denied reimbursement. After unsuccessfully moving for reconsideration,
the petitioner appealed to this court. We vacated the CAB ruling and
remanded the case for the CAB to determine in the first instance whether, and
to what extent, the services provided by the petitioner’s wife were reimbursable.

       On remand to the CAB, the respondents argued that, because the
petitioner’s wife did not fall within the definition of a “health care provider” as
used in RSA 281-A:2, XII-b (2010), her services were not reimbursable. See
RSA 281-A:24 (2010). Although the petitioner conceded that his wife was not a
“doctor, chiropractor, or rehabilitation provider” as listed in RSA 281-A:2,
XII-b, he asserted that her services were, nonetheless, reimbursable.
(Quotation omitted.) The petitioner again sought reimbursement at the rate of
$15 per hour for 16 hours per day between August 25, 2010, and June 4,
2012. The respondents did not challenge the hourly rate; however, they argued
that the request for reimbursement for 16 hours per day was unreasonable.

       The CAB first concluded that the petitioner was entitled to reimbursement
for his wife’s services. The CAB explained that:

      [O]ngoing home health services were required as prescribed by [the
      petitioner’s doctor], and [the petitioner’s wife] has adequately
      provided those services. . . . RSA 281-A:2, XII-b does not exclude a
      spouse as a home health care provider and should include a
      spouse as a home health care provider because the workers[’]
      compensation statute is a remedial statute and a spouse is not
      excluded as a provider. Additionally, there is nothing in the


                                         2
      medical record or testimony that indicates [that the petitioner’s
      wife] has provided inadequate or inappropriate home health care.

       Regarding the amount of reimbursement, the CAB observed that the
petitioner’s wife offered inexact dates, times, and durations of various
treatments that she provided and also lacked written records of her care.
Nonetheless, the CAB concluded that it was reasonable to reimburse the
petitioner for 12 hours per day at $15 per hour for the period between August
25, 2010, and June 4, 2012. The parties filed motions for reconsideration,
which were denied. This appeal followed.

       On appeal, the respondents argue that: (1) the CAB erred by
determining that the petitioner was entitled to reimbursement for the services
that his wife provided; (2) the CAB decision ordering reimbursement for 12
hours per day was arbitrary and not supported by evidence; (3) the CAB erred
by implying that this court had already decided whether the petitioner’s wife
was a “health care provider”; and (4) the petitioner is not entitled to an award
of attorney’s fees for the first appeal to this court. The petitioner counters that
the CAB did not err, and asserts that he is entitled to attorney’s fees for the
earlier appeal to this court. The petitioner also argues that some of the
respondents’ arguments are not preserved. However, because we are ruling in
favor of the petitioner, we assume, without deciding, that the respondents
preserved their arguments.

       We will not disturb a CAB decision absent an error of law, or unless, by a
clear preponderance of the evidence, we find it to be unjust or unreasonable.
Appeal of Kelly, 167 N.H. 489, 491 (2015); see RSA 541:13 (2007). We review
the factual findings of the CAB deferentially and review its statutory
interpretation de novo. Appeal of Phillips, 165 N.H. 226, 230 (2013). On
questions of statutory interpretation, we are the final arbiter of the intent of the
legislature as expressed in the words of a statute considered as a whole. Id.
We first examine the language of the statute and ascribe the plain and ordinary
meanings to the words used. Id. We interpret legislative intent from the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include. Id. We construe
the Workers’ Compensation Law liberally to give the broadest reasonable effect
to its remedial purpose. Id. Thus, when construing it, we resolve all
reasonable doubts in favor of the injured worker. Id.

       The respondents first argue that “the workers’ compensation statute does
not allow for spouses to be reimbursed for home health care services provided
to injured workers,” and, therefore, the CAB erred by ordering reimbursement.
They assert that only services provided by “health care providers” as defined in
RSA 281-A:2, XII-b can be reimbursed, and that RSA 281-A:2, XII-b provides
“an exhaustive and exclusive list of who is considered a health care provider for
the purpose of the workers’ compensation statute.” According to the


                                         3
respondents, because the petitioner’s wife was not a “trained, licensed medical
professional[],”she did not qualify as a “health care provider,” and, therefore,
the CAB erred when it concluded that her services were reimbursable.

       We observe that “[a]s a general rule, the rights and liabilities of the
parties in a workers’ compensation case are determined by the law in effect on
the date of injury.” Appeal of Silk, 156 N.H. 539, 541 (2007). Accordingly, we
will analyze the statutes in effect when the petitioner suffered his injury in July
2010. See id. The applicable version of RSA 281-A:24, I, states, in pertinent
part, that “[t]he employer or the employer’s insurance carrier shall pay the full
amount of the health care provider’s bill unless the employer or employer’s
insurance carrier can show just cause as to why the total amount should not
be paid.” RSA 281-A:2, XII-b provides that “‘[h]ealth care provider’ as used in
this chapter includes doctors, chiropractors, rehabilitation providers, health
services as defined in RSA 151-C:2, XVIII, health care facilities as defined in
RSA 151-C:2, XV-a, and health maintenance organizations as defined in RSA
151-C:2, XVI.”

      We first note that the legislature has not explicitly defined the phrase
“health care provider”; rather, it has provided a list of examples in RSA 281-
A:2, XII-b. Although the respondents argue that the list in RSA 281-A:2, XII-b
is exhaustive, we are not persuaded. The legislature’s use of the term
“includes” in the statute demonstrates that the list of “health care providers” is
not exhaustive. See Conservation Law Found. v. N.H. Wetlands Council, 150
N.H. 1, 5 (2003) (observing that the term “including” in a statute “indicates that
the factors listed are not exhaustive”); cf. Silva v. Botsch, 120 N.H. 600, 602
(1980) (“Unless there is evidence to the contrary, statutory itemization indicates
that the legislature intended the list to be exclusive.”). Accordingly, contrary to
the respondents’ argument, the mere fact that spouses are not listed in the
statute does not require the conclusion that the petitioner’s wife cannot qualify
as a “health care provider.”

       The respondents assert, nonetheless, that, because RSA 281-A:2, XII-b
lists entities such as doctors and chiropractors as “health care providers,” one
must be a “trained, licensed medical professional[]” in order to qualify as a
“health care provider.” See RSA 281-A:2, XII-b. We disagree. In addition to
listing doctors and chiropractors as “health care providers,” RSA 281-A:2, XII-b
states that “health services as defined in RSA 151-C:2, XVIII” are also included
as “health care providers.” The term “health services” is defined by RSA 151-
C:2, XVIII (2005) as “clinically related diagnostic, treatment, or rehabilitative
services, as well as preventive services, and includes, without limitation,
alcohol, drug abuse, and mental health services.” Because there is nothing in
its definition that limits “health services” to only services provided by trained
medical professionals, we conclude that one may be able to render “health
services,” and, thus, qualify as a “health care provider,” without being a trained
medical professional. See RSA 151-C:2, XVIII.


                                         4
       In this case, the petitioner’s wife acted pursuant to a doctor’s
prescription when she provided services to the petitioner, and her services
aided in his recovery. Accordingly, we conclude that she provided “clinically
related . . . treatment” under RSA 151-C:2, XVIII. Thus, although the
petitioner’s wife was not a trained medical professional, she provided “health
services,” and, therefore, qualified as a “health care provider.” See RSA 281-
A:2, XII-b; RSA 151-C:2, XVIII.

      The respondents also argue that allowing for reimbursement for a
medically untrained and unlicensed spouse is “unjust and unreasonable”
because it “places too high a burden on the [respondents], and creates an
unreasonable expectation for employers and insurance carriers to pay
compensation to family members who provide care for injured workers.” They
claim that the legislative history of, and the public policy behind, the workers’
compensation statute support their argument that higher costs and fraudulent
claims will ensue if medically untrained spouses or family members qualify to
be reimbursed for services that they provide to injured workers.

       Although the concerns raised by the respondents may be legitimate, the
respondents raise them in the wrong forum. These concerns implicate matters
of public policy that are better left to the legislature; additionally, we do not
consider legislative history when, as here, the statutes are clear on their face.
See In re Guardianship of Eaton, 163 N.H. 386, 389, 393 (2012) (explaining
that we reserve matters of public policy for the legislature and do not consider
legislative history when statutes are clear on their face). Finally, we note that
“if the legislature disagrees with our construction of its statutory scheme, it is
free to amend the statutes as it sees fit.” In the Matter of Fulton & Fulton, 154
N.H. 264, 268 (2006) (quotation omitted).

      Accordingly, because we conclude that the petitioner’s wife qualified as a
“health care provider,” the respondents are required to pay for the services that
she provided. See RSA 281-A:24, I. We, therefore, conclude that the CAB did
not err when it decided that the petitioner was entitled to reimbursement for
his wife’s services.

       After the CAB determined that the services provided by the petitioner’s
wife were reimbursable, it turned to the issue of the amount of reimbursement.
Although the CAB observed in its decision that the petitioner’s wife lacked
written records of her care and failed to provide exact dates, times, and
durations of the services that she provided, it, nonetheless, concluded that the
petitioner should be reimbursed for 12 hours of home health care services per
day between August 25, 2010, and June 4, 2012, at a rate of $15 per hour.

     On appeal, the respondents do not challenge the $15 per hour rate;
however, they argue that the CAB erred when it ordered reimbursement for 12
hours per day. They assert that, because there are no records documenting


                                        5
the precise dates and times when the petitioner’s wife provided services, and
because she was not providing medically-related services at all times, “it is
unfair to order the [respondents] to reimburse . . . for services that cannot be
accurately quantified. Without better documentation for the services provided,
it is virtually impossible to determine whether twelve hours per day, every day
would be an appropriate reimbursement rate in this instance.”

      “In reviewing the CAB’s findings, our task is not to determine whether we
would have found differently than did the CAB, or to reweigh the evidence, but
rather to determine whether the findings are supported by competent evidence
in the record.” Phillips, 165 N.H. at 235 (quotation and brackets omitted).
“The CAB’s findings of fact will not be disturbed if they are supported by
competent evidence in the record, upon which the CAB’s decision reasonably
could have been made.” Id. (quotation and brackets omitted).

       At the CAB hearing following remand, the only witness to testify was the
petitioner’s wife. She testified that, after her husband was released from the
hospital, she provided services for him on a regular basis, which included
cleaning his wounds, changing his bandages, helping him bathe, assisting in
dressing him, aiding him in the use of the bathroom, helping him move
around, and taking him to various appointments. She also testified that, when
the petitioner would wake up at night — which would generally occur between
one to three times each night — she would assist him with “whatever it is he
need[ed] and then assist him back to bed.” She further testified that she
constantly supervised the petitioner, following him wherever he went and
“tend[ing] to him all day long.” The petitioner’s wife acknowledged that she did
not keep written records regarding the specific dates and times of many of the
services that she provided. She also acknowledged that she would have
performed certain tasks — such as preparing meals and doing laundry —
regardless of her husband’s injury, and that every day there were times when
her husband did not require her assistance.

       Although it may be a sound practice for health care providers to keep
detailed written records, and although the petitioner’s wife may not have
actively provided continuous assistance to her husband each day, we cannot
conclude that the CAB erred when it determined that reimbursement for 12
hours per day was reasonable. There is competent evidence in the record
concerning both the amount of assistance and supervision that the petitioner
required, and the nature of the services that his wife provided each day,
sufficient to support the CAB’s determination. See id.

       Next, the respondents challenge the CAB decision denying their motion
for rehearing and reconsideration. The respondents argue that the CAB
erroneously implied in its denial that this court had already decided whether a
spouse was entitled to reimbursement for services rendered to an injured
worker. They also argue that the CAB refused to revisit the merits of the


                                       6
spousal reimbursement issue based upon the incorrect assumption that we
had previously resolved the issue. Thus, the respondents assert that the
“denial of [their] Motion for Rehearing/Reconsideration on that premise was
erroneous as a matter of law and should be overturned.” To the extent that
addressing this issue requires us to interpret the CAB decision, such
interpretation presents a question of law. See Guy v. Town of Temple, 157 N.H.
642, 649 (2008) (“[T]he interpretation of a tribunal’s order presents a question
of law, which we review de novo.”).

       We agree with the respondents that we did not previously address
whether the services provided by the petitioner’s wife were reimbursable. In
fact, in our prior order, we remanded for the CAB to determine “the level of
reimbursement, if any, to be awarded [to the petitioner’s wife].” (Emphasis
added.) Nonetheless, we disagree with the respondents’ interpretation of the
CAB decision to deny their motion for rehearing and reconsideration. When
the CAB’s decision on the reconsideration motion is read in conjunction with
its merits decision, there is no indication that the CAB was unwilling to revisit
the spousal reimbursement issue because it had concluded that we had
already decided the issue; rather, the decision on reconsideration demonstrates
that the CAB denied the motion because it concluded that the respondents
were merely repeating arguments that it had already rejected. See Barrows v.
Boles, 141 N.H. 382, 397 (1996) (affirming trial court’s denial of motions for
reconsideration that “simply reiterated the arguments made at trial”).
Accordingly, we find no error on these grounds.

      Finally, we turn to the issue of whether the petitioner is entitled to the
attorney’s fees that he incurred in the prior appeal to this court. We note that
the parties do not appeal the CAB’s award of attorney’s fees incurred in the two
proceedings before it.

      The general rule in New Hampshire is that each party to litigation must
pay his or her own attorney’s fees. In the Matter of Mallett & Mallett, 163 N.H.
202, 211 (2012). However, there are exceptions to this rule. Id. One exception
is when a statute specifically authorizes the award of attorney’s fees. Id. RSA
281-A:44, I (2010), states, in relevant part, that:

         (a) In any dispute over the amount of the benefit payable under
      this chapter which is appealed to the board or supreme court or
      both, the employee, if such employee prevails, shall be entitled to
      reasonable counsel fees and costs as approved by the board or
      court and interest on that portion of any award the payment of
      which is contested. For the purposes of this paragraph, to
      “prevail” means:

             (1) If the employee is the appealing party, the employee
         shall have received an award for disability benefits, medical,


                                       7
          hospital, and remedial care, a scheduled permanent
          impairment award, vocational rehabilitation, or reinstatement
          of the employee, which is greater in amount than awarded by
          the decision which is the subject of the appeal; or

             (2) If the appeal is by the employer or insurance carrier, the
          appealed decision shall have been affirmed.

(Emphases added.)

       Following our decision in the earlier appeal to this court, the petitioner
filed a motion in this court seeking attorney’s fees and costs incurred in that
appeal. We declined to take action on the motion at that time, and ordered the
parties to address the following questions:

      Does the definition of “prevail” in RSA 281-A:44, I, as applied to a
      request for attorney’s fees and costs incurred in a supreme court
      appeal, require the claimant to have received a decision from this
      court that itself awards “disability benefits, medical, hospital, and
      remedial care, a scheduled permanent impairment award,
      vocational rehabilitation, or reinstatement of the employee, . . .
      greater in amount than awarded by the decision which is the
      subject of the appeal?” Or, instead, does the definition of “prevail”
      in RSA 281-A:44, I, as applied to a request for attorney’s fees and
      costs incurred in a supreme court appeal, extend more broadly to
      the situation presented here, in which the claimant received a
      favorable decision from this court (but not an award of benefits or
      care) and then obtained from the compensation appeals board on
      remand a favorable award? Cf. Appeal of Silk, 156 N.H. 539 (2007)
      (discussing statutory change to the definition of “prevail”). If the
      latter, does the claimant’s entitlement to attorney’s fees and costs
      incurred in [the earlier appeal] depend, in whole or in part, on the
      outcome of the issues raised in the appeal document filed by [the
      respondents] in [the present appeal]?

      Resolving this issue requires us to engage in statutory interpretation.
“When construing the Workers’ Compensation Law, we give the broadest
reasonable effect to its remedial purpose, resolving all reasonable doubts in
favor of the injured worker.” Silk, 156 N.H. at 541. Our liberal construction of
the Workers’ Compensation Law applies to our interpretation of RSA 281-A:44, I,
which governs the award of attorney’s fees and costs. See id. at 541-44.

      In our decision in the earlier appeal, we vacated the CAB decision that
had denied the request for reimbursement, and we remanded for the CAB to
determine whether, and to what extent, the services provided by the petitioner’s
wife were reimbursable. On remand, the CAB concluded that her services were


                                        8
reimbursable and calculated the reimbursement amount, and we have affirmed
that decision.

       Under these circumstances, we conclude that the petitioner “prevail[ed]”
under RSA 281-A:44, I, in his earlier appeal to this court. Although we did not
award benefits to the petitioner in the earlier appeal, our prior decision was an
essential step in the process that eventually led to the CAB awarding
reimbursement. See RSA 281-A:44, I(a)(1) (stating that “prevail” means that
the “employee shall have received an award for . . . benefits, [or] . . . care, . . .
which is greater in amount than awarded by the decision which is the subject
of the appeal”).

        In Silk, we applied a prior version of RSA 281-A:44, I, and concluded that
an employee was entitled to attorney’s fees incurred on appeal to this court
because, although we did not award medical payments to the employee, she
received a right to a hearing on remand. Silk, 156 N.H. at 542-43. We also
observed that the statute recently had been amended, and that under the new
definition of “prevail” in RSA 281-A:44, I, a claimant who simply “appealed a
board’s decision and obtained a new hearing before the board” may no longer
be deemed to have “prevailed.” Id. at 543. That may well be true, but those
are not the circumstances present in this case. Here, the petitioner not only
successfully appealed the CAB decision to this court and obtained a new
hearing before the CAB, but, on remand, he also succeeded on the merits
before the CAB, and we have affirmed that decision. Cf. id. at 542-44. To
artificially view the earlier appeal in isolation without regard to the outcome
before the CAB on remand and on subsequent appeal to this court, would
ignore the fact that, without our remand order, the CAB would not have
awarded reimbursement, and would be at odds with our liberal construction of
the Workers’ Compensation Law, see Phillips, 165 N.H. at 230. Accordingly, we
conclude that the petitioner is entitled to reasonable attorney’s fees and costs
incurred in the earlier appeal to this court.

                                                    Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.




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