Appeal of Javier Vasquez and Appeal of Matosantos International Corporation

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Compensation Appeals Board
Nos. 2021-0071
2021-0072

APPEAL OF JAVIER VASQUEZ
(New Hampshire Compensation Appeals Board)

APPEAL OF MATOSANTOS INTERNATIONAL CORPORATION
(New Hampshire Compensation Appeals Board)

Argued: February 10, 2022
Opinion Issued: September 30, 2022

Shaheen & Gordon, P.A., of Manchester (Jared P. O’Connor on the brief
and orally), for petitioner Javier Vasquez.

Rath Young and Pignatelli, P.C., of Concord (Michael K. O’Neil on the
brief and orally), for petitioner Matosantos International Corporation.

Getman, Schulthess, Steere & Poulin, P.A., of Manchester (Tracy L.
McGraw on the brief and orally), for the respondent, The Hartford Insurance
Company.
 John M. Formella, attorney general, and Anthony Galdieri, solicitor
general (Stacie M. Moeser, assistant attorney general, on the brief and orally),
for the New Hampshire Department of Labor.

BASSETT, J. The petitioners, Javier Vasquez and his employer,
Matosantos International Corporation (MIC), appeal the determination of the
New Hampshire Compensation Appeals Board (CAB) that it could not order the
respondent, The Hartford Insurance Company, to pay workers’ compensation
benefits to Vasquez. The CAB concluded that the Department of Labor (DOL),
and therefore the CAB, lacked jurisdiction under the Workers’ Compensation
Law, RSA ch. 281-A, to interpret the workers’ compensation insurance policy
that MIC had purchased from The Hartford. Because we conclude that the
CAB did have jurisdiction to consider and resolve the coverage dispute between
MIC and The Hartford, we vacate the CAB’s decision and remand for its
consideration, in the first instance, of whether the policy purchased by MIC
covered Vasquez when he was injured while working in New Hampshire.

The following facts are undisputed. In 2018, Vasquez was working as a
traveling auditor for MIC. He was required to visit retail stores throughout the
United States to ensure compliance with product placement and advertising
requirements. On May 24, 2018, Vasquez arrived in New Hampshire to
perform his duties at stores located within the state. This was the first time in
2018 that an MIC employee worked in New Hampshire. On May 31, Vasquez
was driving to a hotel in Laconia when his vehicle was hit head-on by a drunk
driver. He suffered severe injuries and was hospitalized in intensive care for
three weeks. He has been totally disabled from work since the time of the
injury. His medical costs exceeded $700,000 as of August 2021 and had not
been paid as of February 2022.

Vasquez retained counsel, who filed a workers’ compensation claim with
The Hartford, MIC’s workers’ compensation carrier. The Hartford declined to
provide benefits, stating that the workers’ compensation policy purchased by
MIC did not provide coverage for employees working in New Hampshire on the
date of Vasquez’s injury.

Vasquez then submitted a petition to the commissioner of the DOL
requesting a hearing to determine whether he was entitled to benefits and, if
so, whether the workers’ compensation policy that MIC had purchased from
The Hartford would cover the injuries. See RSA 281-A:43 (Supp. 2021); see
also RSA 281-A:5-f (2010) (applying chapter to nonresident employees and
employers doing business in New Hampshire). MIC failed to appear at a
hearing, and the DOL entered a default against it. At the hearing, The Hartford
argued that it “did not provide coverage for the employer in New Hampshire at
the time of the claimant’s injury.” The DOL ruled that Vasquez’s injuries arose

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out of and were sustained in the course of his employment and awarded him
temporary total disability benefits, but declined to resolve the coverage
questions presented by The Hartford.

MIC moved to strike the default and moved for reconsideration on the
issue of whether its policy with The Hartford covered Vasquez’s injuries.
Following a re-hearing on that issue, the DOL again declined to resolve the
coverage dispute between MIC and The Hartford. Vasquez and MIC appealed
to the CAB, which ruled that the DOL lacks jurisdiction to resolve the coverage
dispute and that MIC was in violation of RSA 281-A:5 for “fail[ing] to prove that
it had a valid worker’s compensation policy in effect” that covered Vasquez’s
injuries. Vasquez and MIC filed separate appeals, which we consolidated.

On appeal, the petitioners argue that the CAB erred when it concluded
that the DOL does not have jurisdiction to interpret insurance policies to
determine whether an employer or its insurer is responsible for paying workers’
compensation benefits. RSA 281-A:43 grants the DOL authority to resolve any
“controversy as to the responsibility of an employer or the employer’s insurance
carrier for the payment of compensation and other benefits under this
chapter.” RSA 281-A:43, I(a) (emphasis added). The petitioners argue that
“controversy” encompasses a dispute as to the meaning of the language in the
workers’ compensation insurance policy. The Hartford and the DOL counter
that RSA 281-A:43 does not grant the DOL authority to interpret workers’
compensation insurance policies. We agree with the petitioners that the DOL
has jurisdiction to resolve disputes as to the interpretation of workers’
compensation insurance policies purchased by employers. Accordingly, we
vacate and remand.

We will not disturb the CAB’s decision absent an error of law, or unless,
by a clear preponderance of the evidence, we find it to be unjust or
unreasonable. In re JAMAR, 145 N.H. 152, 154 (2000). This case concerns the
jurisdiction of the DOL and the CAB, which are administrative agencies. See
RSA 273:1 (2010); RSA 281-A:42-a, II (2010). Administrative agencies have
jurisdiction only “under the precise circumstances and in the manner
particularly prescribed by the enabling legislation.” In re Campaign for
Ratepayers’ Rights, 162 N.H. 245, 250 (2011).

This case requires us to interpret RSA 281-A:43, I(a). In matters
of statutory interpretation, we first look to the language of the statute itself,
and, if possible, construe that language according to its plain and ordinary
meaning. Petition of Carrier, 165 N.H. 719, 721 (2013). We interpret 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 all
parts of a statute together to effectuate its overall purpose and avoid an absurd
or unjust result. Id. We consider words and phrases, not in isolation, but in
the context of the statute as a whole in order to better discern the legislature’s

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intent and to interpret statutory language in light of the policy or purpose
sought to be advanced by the statutory scheme. Id. When construing a
statute, we give effect to all words in a statute and presume that the legislature
did not enact superfluous or redundant words. Appeal of Marti, 169 N.H. 185,
191 (2016).

We interpret RSA 281-A:43 as granting the DOL jurisdiction to resolve
coverage disputes between employers and insurers and, therefore, to interpret
insurance contracts. “Employer” is defined in RSA 281-A:2, which specifically
provides that “[e]xcept where the context specifically indicates otherwise, the
term employer . . . shall be deemed to include the employer’s insurance carrier
. . . .” RSA 281-A:2, VIII(c) (2010) (emphasis added). RSA 281-A:43 states that
the DOL has authority to resolve “controvers[ies] as to the responsibility of an
employer or the employer’s insurance carrier” for payment of benefits. RSA
281-A:43, I(a) (emphasis added). Given the definition of “employer” in RSA
281-A:2, the additional reference in RSA 281-A:43 to the insurance carrier may
not be necessary; however, its specific mention makes clear that the legislature
intended to empower the DOL to decide whether the employer or the insurer is
obligated to pay benefits. Marti, 169 N.H. at 191 (noting our presumption that
the legislature does not enact superfluous words). To interpret the statute as
the respondent and the DOL urge would read the words “or the employer’s
insurance carrier” out of RSA 281-A:43, which we must not do. See Brown v.
Brown, 133 N.H. 442, 445 (1990) (explaining that language “cannot be read out
of [a] statute”). Even if RSA 281-A:43 did not specifically refer to the insurance
carrier, in order to adopt the proffered construction, we would have to read
“employer” as excluding the insurance carrier, which would be contrary to the
definition in RSA 281-A:2.

Therefore, we agree with the petitioners that RSA 281-A:43 gives the DOL
authority to decide whether the employer or insurer is required to pay workers’
compensation benefits. Doing so may require interpretation of insurance
policies. See JAMAR, 145 N.H. at 155 (stating that administrative agencies
possess implied or incidental powers reasonably necessary to carry out the
powers expressly granted to them by statute). The CAB, in turn, may need to
interpret insurance contracts in reviewing DOL decisions made under RSA
281-A:43. See RSA 281-A:42-a, I (2010).

Other provisions of the Workers’ Compensation Law contemplate that the
DOL considers insurance contracts when resolving matters properly before it.
For example, RSA 281-A:5 requires that employers “insur[e] and keep[] insured
the payment of such compensation with a company licensed to write workers’
compensation insurance in this state and fil[e] with the commissioner . . .
evidence of such coverage as the commissioner deems appropriate,” RSA 281-
A:5, I, and the DOL may impose penalties on employers who fail to do so, RSA
281-A:7, I(a)(1) (Supp. 2021). Determining whether an employer has “insur[ed]
and ke[pt] insured” the payment of workers’ compensation may require

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analysis of the terms of an insurance contract. The instant case demonstrates
this: although MIC, a company with operations in many states, had secured
workers’ compensation insurance, whether employees working in New
Hampshire are covered depends upon the terms of the contract. Other
statutory provisions that could give rise to disputes regarding policy coverage
include RSA 281-A:6 (2010) (requiring that insurance companies offering
comprehensive personal liability, tenants’, or homeowners’ insurance also
“provide workers’ compensation insurance covering domestics”); RSA 281-A:23,
V(c) (2010) (“The commissioner may assess a civil penalty of up to $2,500 on
any health care provider who . . . bills an injured employee or his or her
employer for services covered by insurers or self-insurers under this chapter.”);
and RSA 281-A:46, I (2010) (authorizing the DOL to resolve disputes between
successive insurance carriers regarding liability for benefits).

The Hartford argues that the DOL lacks expertise in insurance contract
interpretation, and therefore only the courts may address issues requiring such
interpretation. We disagree. The DOL must, on occasion, interpret
employment contracts, see, e.g., RSA 281-A:12 (2010) (making compensation
for injury sustained out-of-state contingent on whether an employment
contract was “expressly for service” rendered outside the state); interpretation
of an insurance policy is a similar undertaking, Energynorth Natural Gas, Inc.
v. Continental Ins. Co., 146 N.H. 156, 159 (2001) (“We generally construe an
insurance policy as we do any other contract.”). Further, although the primary
focus of the DOL may not be deciding legal issues, that does not mean that it
lacks jurisdiction to address legal matters properly before it. For example, we
recently remanded to the CAB the legal issue of whether federal law preempted
state law and prohibited employee reimbursement for medical marijuana.
Appeal of Panaggio, 172 N.H. 13, 18-19 (2019). And the fact that the DOL is
empowered to resolve legal issues arising under the Workers’ Compensation
Law does not preclude judicial review; a party aggrieved by a CAB decision may
appeal to this court. RSA 281-A:43, I(c) (“Any party in interest aggrieved by
any order or decision of the board may appeal to the supreme court pursuant
to RSA 541.”).

Construing RSA 281-A:43 to allow the DOL to resolve certain coverage
disputes is necessary to effectuate the purpose of the Workers’ Compensation
Law “to afford employees a sure remedy when they are injured on the job and
to provide for a fair resolution of disputed claims.” JAMAR, 145 N.H. at 155. If
the DOL were unable to resolve coverage disputes between an employer or
insurer as to which entity is responsible for payment of workers’ compensation
benefits, injured employees would be in a precarious and vulnerable position.
Without a determination of coverage, the employer would be responsible, by
default, for paying the workers’ compensation benefits. See N.H. Admin. R.,
Lab 304.01. In the event that the employer is unable or unwilling to pay, the
employee would have limited recourse. For example, the employee could wait
and hope that the employer will sue the insurer for breach of contract, or the

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employee or employer could pursue a declaratory judgment action in court
against the insurer, see King-Jennings v. Liberty Mut. Ins. Co., 144 N.H. 559
(1999); but, under either scenario, the employee could face significant
uncertainty about whether and when benefits will be paid and would incur
costs and face further delays, and the employee’s relationship with the
employer could be strained. The Workers’ Compensation Law was enacted to
avoid precisely these problems. See Alonzi v. Northeast Generation Servs. Co.,
156 N.H. 656, 664 (2008) (explaining that the Workers’ Compensation Law was
a “radical legislative response” because courts were “filled with litigation[,
which] . . . engendered bitterness between employer and employee; resulted in
great economic waste[;] and turned out an army of maimed and helpless people
as dependents upon the charity of friends or the public” (brackets and ellipses
omitted)); see also JAMAR, 145 N.H. at 155.

Accordingly, we hold that RSA 281-A:43, I(a) confers upon the DOL —
and by extension the CAB — jurisdiction to resolve coverage disputes requiring
the interpretation of workers’ compensation insurance policies purchased by
employers. To the extent that the orders of the DOL and the CAB can be read
to determine — without analyzing the policy language — that the workers’
compensation policy purchased by MIC did not provide coverage for Vasquez
when he was injured while working in New Hampshire, they are hereby
vacated. We remand for further proceedings consistent with this opinion.

Vacated and remanded.

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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