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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Compensation Appeals Board

No. 2015-0342

APPEAL OF CARLOS MARTI

(New Hampshire Compensation Appeals Board)

Argued: February 10, 2016

Opinion Issued: June 28, 2016

Shaheen & Gordon, P.A., of Manchester (Jared O’Connor on the brief and 

orally), for the petitioner.

Hamblett & Kerrigan, PA, of Nashua (J. Daniel Marr and Andrew J. Piela

on the brief, and Mr. Marr orally), for the respondent.

HICKS, J. The petitioner, Carlos Marti, appeals a decision of the New 

Hampshire Compensation Appeals Board (CAB) dismissing his claim for 

reinstatement to his employment with the respondent, Nashua Foundries, Inc. 

We vacate and remand.

The following facts were found by the CAB or appear in the record. The 

petitioner was hired by the respondent on October 8, 2013. On August 6, 

2014, the petitioner injured his elbow at work. He informed the respondent’s 

president of his injury, was given an over-the-counter medication, and 

returned to work. The petitioner’s pain grew worse and, after approximately 

thirty minutes, he asked the president for permission to go to the local 

emergency room. The president refused the request, referring the petitioner 
2

instead to an occupational health clinic pursuant to company policy and the 

collective bargaining agreement governing the petitioner’s employment. That 

facility, however, would not open until three hours later. The petitioner 

informed the president that he intended to go to the emergency room 

immediately. The president responded that if the petitioner left work to go to 

the emergency room, rather than waiting to visit the occupational health clinic, 

it would constitute insubordination, and he would be fired. Under the 

collective bargaining agreement, the petitioner could be immediately terminated 

for insubordination.

Against the president’s directive, the petitioner clocked out of work and 

went to the emergency room. He returned later with a doctor’s note for a fourday work absence, but was instead terminated for insubordination. The 

petitioner did not grieve his termination under the collective bargaining 

agreement.

The respondent’s workers’ compensation insurer accepted the claim and 

paid the petitioner’s medical bills. The petitioner requested a hearing on his 

claims for reinstatement and back pay. See RSA 281-A:25-a (2010). Following 

a hearing before a Department of Labor hearing officer, the petitioner’s claim 

was denied. The petitioner appealed to the CAB.

Before the CAB, the respondent moved to dismiss for lack of jurisdiction. 

The CAB summarized the issue as follows: “The issue in this case is one of 

statutory construction. The question is whether the [CAB] has jurisdiction to 

rule on the issue of reinstatement of an injured claimant after he has been 

terminated and before he has requested the reinstatement.” The CAB “repl[ied] 

in the negative” and granted the motion to dismiss. The petitioner’s motion for 

rehearing was denied, and this appeal followed.

On appeal, the petitioner argues that the CAB’s interpretation of RSA 

281-A:25-a: (1) erroneously reads a continuous employment requirement into 

that statute, thereby undermining the statutory scheme; and (2) potentially 

leaves him without a remedy because he was required by RSA 281-A:8, III to 

choose between the remedies afforded under RSA chapter 281-A and those 

available under other statutes or the common law. See RSA 281-A:8, III (2010).

Our standard of review is established by statute:

[T]he burden of proof shall be upon the party seeking to set aside 

any order or decision of the [CAB] to show that the same is clearly 

unreasonable or unlawful, and all findings of the [CAB] upon all 

questions of fact properly before it shall be deemed to be prima 

facie lawful and reasonable; and the order or decision appealed 

from shall not be set aside or vacated except for errors of law, 
3

unless the court is satisfied, by a clear preponderance of the 

evidence before it, that such order is unjust or unreasonable.

RSA 541:13 (2007); RSA 281-A:43, I(c) (2010) (“Any party in interest aggrieved 

by any order or decision of the [CAB] may appeal to the supreme court 

pursuant to RSA 541.”). “Thus, we review the factual findings of the CAB 

deferentially,” and “its statutory interpretation de novo.” Appeal of Phillips, 

165 N.H. 226, 230 (2013).

The issues on appeal present questions of statutory interpretation. In 

such matters, “we are the final arbiters 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. 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. We construe the Workers’ Compensation 

Law liberally to give the broadest reasonable effect to its remedial 

purpose. Thus, when construing it, we resolve all reasonable 

doubts in favor of the injured worker.

Id. (citations omitted).

The primary statutory provision at issue, RSA 281-A:25-a, provides in 

part:

An employee of an employer who employs 5 or more employees, 

who has sustained an injury, shall be reinstated by the employer 

to the employee’s former position of employment upon request for 

such reinstatement, if the position exists and is available and the 

employee is not disabled from performing the duties of such 

position, with reasonable accommodations for the employee’s 

limitations.

RSA 281-A:25-a, I.

The petitioner first argues that the CAB erroneously interpreted the term 

“employee” in this section to “impl[y] a continuous employment status pending 

the issuance of a medical release for return to unrestricted duty.” The CAB 

concluded — again erroneously, according to the petitioner — that the 

respondent’s firing of the petitioner “severed the employer-employee 

relationship” such that the petitioner “was no longer an ‘employee’ entitled to” 

the right of reinstatement under RSA 281-A:25-a.” The petitioner argues that 

this interpretation of the term “employee” would “eviscerate the statute,” 

leading to absurd results in other sections that use the term “employee.” The 
4

petitioner contends, for example, that terminated workers with compensable 

injuries would no longer be entitled to seek medical treatment pursuant to RSA 

281-A:23 (Supp. 2015) or receive permanent impairment awards under RSA 

RSA 281-A:32 (2010), as those sections also apply only to employees.

We find this argument unpersuasive. The Workers’ Compensation Law 

provides a definition for the term “‘[e]mployee,’ with respect to private 

employment” which, in relevant part, is “any person in the service of an 

employer subject to the provisions of this chapter under any express or 

implied, oral or written contract of hire.” RSA 281-A:2, VI(a) (2010). RSA 281-

A:2, also provides, however, that “[a]ny word or phrase defined in this section 

shall have the same meaning throughout RSA 281-A, unless the context clearly 

requires otherwise.” RSA 281-A:2 (2010) (emphasis added). Thus, there is no 

danger of “eviscerat[ing] the statute” by construing the term “employee” in RSA 

281-A:25-a in a manner that may not fit other provisions that use the term.

The petitioner next contends that “it must be recognized that the 

legislature explicitly included in the text of RSA 281-A:25-a only three ways in 

which the right terminates, and the firing of an employee is not among them.” 

As the petitioner correctly notes, RSA 281-A:25-a, II provides:

Notwithstanding paragraph I of this section:

(a) The right to reinstatement to the employee’s former position 

under this section terminates when any one of the following events 

occurs:

(1) A medical determination by the attending physician or 

finding by the commissioner that the employee cannot return to 

the former position of employment.

(2) The employee accepts employment with another 

employer.

(3) Eighteen months from the date of injury.

RSA 281-A:25-a, II.

We addressed a similar argument in Appeal of Cover, 168 N.H. ___, ___ 

(decided February 26, 2016). There, in determining whether RSA 281-A:25-a 

applies to part-time workers, we considered RSA 281-A:25-a, II(b), which “lists 

three categories of employees who are not eligible for reinstatement.” Appeal of

Cover, 168 N.H. at ___. The list did not include part-time employees. See id.; 

RSA 281-A:25-a, II(b). In holding that part-time employees are entitled to 

reinstatement under RSA 281-A:25-a, I, we reasoned:
5

Reading RSA 281-A:25(a), II(b) to exclude part-time workers from 

the right of reinstatement would contravene the familiar axiom of 

statutory construction, expressio unius est exclusio alterius: 

Normally the expression of one thing in a statute implies the 

exclusion of another. Reading RSA 281-A:25-a to exclude parttime workers would require us to add language to RSA 281-A:25(a), 

II(b) that the legislature did not see fit to include, which we decline 

to do.

Appeal of Cover, 168 N.H. ___, ___ (quotations, citation, and brackets omitted).

Here, by contrast, we need not add language to RSA 281-A:25-a, II(a) to 

determine whether the petitioner is entitled to request reinstatement after the 

respondent terminated his employment. Rather, we must interpret the term 

“employee” within the context of RSA 281-A:25-a, see RSA 281-A:2, and 

according to our rules of statutory construction.

We begin by considering the petitioner’s proposed construction. Citing 

our standard of “constru[ing] the Workers’ Compensation Law liberally to give 

the broadest reasonable effect to its remedial purpose,” Appeal of Phillips, 165 

N.H. at 230, the petitioner argues that “[a]n appropriately liberal reading of 

RSA 281-A:25-a is that the right of reinstatement only applies to individuals 

with compensable workers[’] compensation injuries: persons who were ‘in the 

service of an employer’ at the time of their injury.” An interpretation that 

broad, however, would certainly lead to absurd results, as the petitioner 

himself recognizes. He states:

[A]lthough RSA 281-A:25-a is silent about the effect of a legitimate 

termination, [he] would concede that a termination for cause could 

independently cut off the right to reinstatement. If [he] had 

physically assaulted his employer during their discussion about 

his right to seek medical treatment, the employer would be 

justified in not reinstating him, legitimate work injury or no.

We can think of various other termination scenarios under which the 

legislature could not have intended the terminated worker to be entitled to 

reinstatement under RSA 281-A:25-a.

It is a “fundamental principle” of statutory construction “that whenever 

possible, a statute will not be construed so as to lead to absurd consequences. 

Thus, as between a reasonable and unreasonable meaning of the language 

used, the reasonable meaning is to be adopted.” Petition of Poulicakos, 160 

N.H. 438, 444 (2010) (quotations, citation, and ellipsis omitted). We therefore 

conclude that the term “employee” in RSA 281-A:25-a cannot be read to 

include a worker who has been legitimately terminated from employment for 

cause. RSA 281-A:25-a presents a “context [that] clearly requires” a narrower 
6

definition of “employee” than that which may apply elsewhere in the workers’ 

compensation statute. RSA 281-A:2.

The respondent argues in favor of the CAB’s ruling that, as the 

respondent characterizes it, “RSA 281-A:25-a only applies to employees, not 

former employees.” Citing RSA 281-A:8, III, the respondent asserts that, “[i]n 

drafting the workers[’] compensation statute, the legislature clearly knew the 

difference between a current and a former employee.” RSA 281-A:8, III 

provides in relevant part: “Nothing in this chapter shall derogate from any 

rights a former employee may have under common law or other statute to 

recover damages for wrongful termination of, or constructive discharge from, 

employment.” RSA 281-A:8, III (emphasis added). Invoking the rule that 

“where the legislature uses different language in related statutes, we assume 

that the legislature intended something different,” State Employees Assoc. of

N.H. v. N.H. Div. of Personnel, 158 N.H. 338, 345 (2009) (quotation omitted), the 

respondent argues that “[i]f the legislature intended to make RSA 281-A:25-a 

available to ‘former’ employees in addition to current employees, it would have 

stated as much in the statute.”

Although we acknowledge the use of the term “former employee” in RSA 

281-A:8, III, that term’s interpretation is not directly before us and we decline 

to rule upon it. We also decline to infer from its use that the legislature 

intended the term “employee” as used in RSA 281-A:25-a to mean only 

“current” employees. Adopting such an interpretation of “employee” would seem 

to render superfluous another section of RSA 281-A:25-a: RSA 281-A:25-a, II, 

provides, in part, that “[t]he right to reinstatement to the employee’s former 

position under this section terminates when . . . [t]he employee accepts 

employment with another employer.” If the term “employee” were construed, as 

the CAB ruled, to “impl[y] a continuous employment status pending the 

issuance of a medical release for return to unrestricted duty,” RSA 281-A:25-a, 

II(a)(2) would be superfluous because a worker who has accepted employment 

with another employer would already not be entitled to reinstatement pursuant 

to RSA 281-A:25-a, I, because his “employee” status would have ceased when 

his employment with the first employer terminated. Ordinarily, “[w]hen 

construing a statute, we . . . give effect to all words in a statute and presume 

that the legislature did not enact superfluous or redundant words.” 

Winnacunnet Coop. Sch. Dist. v. Town of Seabrook, 148 N.H. 519, 525-26 

(2002).

We note that our holding that a worker who is legitimately terminated 

from employment for cause is not an “employee” entitled to reinstatement

pursuant to RSA 281-A:25-a, I, does not render RSA 281-A:25-a, II(a)(2) 

superfluous because, although the categories of workers who have been 

legitimately terminated by the employer for cause and workers who have 

accepted employment with another employer may overlap, they are not

coextensive. We leave it to the legislature to clarify these provisions, if it sees 
7

fit, and, of course, the legislature is free to amend the statutes if it disagrees 

with our interpretation herein. See In the Matter of Conant & Faller, 167 N.H. 

577, 581 (2015).

The petitioner contends that he was not legitimately terminated for cause

and asserts that the CAB’s order “may be reversed as a matter of law and the 

case remanded with instructions to reinstate” him given that the CAB “has 

already determined that [he] was terminated for seeking his own physician 

under [RSA 281-A:23, I].” The respondent, on the other hand, argues that the 

petitioner was legitimately terminated for insubordination under the terms of 

the collective bargaining agreement and that “the time parameters and method 

of challenging his employment termination were as set forth in the agreement.” 

The respondent also correctly notes that RSA 281-A:25-a, I, provides that 

“[r]einstatement under this section shall be subject to the provisions for 

seniority rights and other employment restrictions contained in a valid 

collective bargaining agreement between the employer and a representative of 

the employer’s employees.” RSA 281-A:25-a, I.

The CAB found that the petitioner failed to challenge his termination by 

grieving it pursuant to the collective bargaining agreement. The respondent 

appears to contend that because the petitioner failed to grieve his termination, 

he cannot now challenge its legitimacy. If this were correct, the petitioner 

would be considered to have been legitimately terminated for cause, and, under 

our interpretation of the statute herein, would not be an “employee” eligible for 

reinstatement under RSA 281-A:25-a, I. We cannot determine, however, 

whether the petitioner’s failure to grieve forecloses a challenge to his 

termination because the collective bargaining agreement is not contained in the 

record before us. Accordingly, we vacate and remand for a determination on 

that issue and for further proceedings, if necessary. In light of this disposition, 

we need not reach the parties’ remaining arguments.

Vacated and remanded.

DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred.