i

THE STATE OF NEW HAMPSHIRE SUPREME COURT

No: 2010-0157

ALFRED OCASIO

v.

FEDERAL EXPRESS CORPORATION

_______________________________________________

APPEAL FROM DECISION ON THE MERITS BY THE HILLSBOROUGH COUNTY SUPERIOR COURT (SOUTHERN DISTRICT) PURSUANT TO RULE 7

_______________________________________________

BRIEF OF APPELLANT ALFRED OCASIO

_______________________________________________

Peter G. Webb, Esquire (Bar No. 2676) John V. Dwyer, Jr., Esquire (Bar No. 713) 111 Concord Street, PO Box 488 Nashua, New Hampshire 03061 (603) 882-5157

i

I. TABLE OF CONTENTS I. TABLE OF CONTENTS …………………………………………………………………i II. TABLE OF AUTHORITIES ………………………………………………………..…..iii III. QUESTIONS PRESENTED ………………………………………………………….…vi IV. TEXT OF CONSTITUTIONAL PROVISIONS, FEDERAL STATUTES …………...viii AND STATE STATUTES V. STATEMENT OF THE CASE …………………………………………………………..1 VI. STATEMENT OF FACTS …………………………………………………………….…3 VII. SUMMARY OF THE ARGUMENT ………………………………………………….…6 VIII. ARGUMENT ……………………………………………………………………………11

The application of RSA 507:7-e, Apportionment of …………………………....11 Damages, to Mr. Ocasio’s employer in his third party action effects a new and fundamental change in the rights of injured workers. The authority on which this Court has repeatedly ………………………………14 relied in its evolving interpretation of the meaning of RSA 507:7-e, Apportionment of Damages, exempts employers in third party actions arising out of work injuries from fault allocation. The injured worker’s right to a third party action ………………………….......17 under federal law and state law is personal to the employee (or derivative therefrom). Because the concept of employer fault vis a vis an employee injury is abrogated by the worker’s compensation statute, there cannot be employer fault in a claim brought by an injured worker arising out of an injury at work. Applying the Apportionment of Damages statute, RSA …………………..…...19 507:7-e, to Mr. Ocasio’s third party action impermissibly disturbed the quid pro quo of the worker’s compensation law which governed Mr. Ocasio’s employment. So doing, Mr. Ocasio’s Due Process rights under Part I, Article 15 of the New Hampshire Constitution were violated.

ii

Applying RSA 507:7-e, Apportionment of Damages, to …………………….…22 serve as a defense against claims brought by injured workers disturbs the quid pro quo balance of benefits and burdens struck under worker’s compensation law. This infringement of the right to recover for personal injuries is unreasonable. Mr. Ocasio’s right to Equal Protection under Part I, Articles 2 and 12 of the New Hampshire Constitution was thereby violated. The allocation of damages to the employer in this third …………………….....23 party action arising out of a work injury violated Mr. Ocasio’s Right to Remedy under Part I, Article 14 of the New Hampshire Constitution. The Supremacy Clause of the United States Constitution, …………………..…24 Article VI, Section 2, prohibits the impairment by RSA 507:7-e of Mr. Ocasio’s right to a third party action and the federal government’s right to subrogation under the Federal Employees Compensation Act, 5 U.S.C.S. §8102, et seq. Given Mr. Ocasio’s comparative negligence of only 6%, ………………...........26 it was error of law for the Court to have awarded judgment for the defendant. The Trial Court’s erroneous ruling that employer negligence ……………........29 was relevant to Mr. Ocasio’s case requires that the verdict with respect to fault be set aside and that a new trial be ordered. The verdict regarding damages, however, need not be again submitted to the jury.

IX. CONCLUSION ……………………………………………………………………….…30 X. REQUEST FOR ORAL ARGUMENT ……………………………………………........30 XI. CERTIFICATE OF SERVICE ………………………………………………………….31

iii

II. TABLE OF AUTHORITIES

FEDERAL CONSTITUTIONAL PROVISIONS

U.S. Const. Art. VI, §2. [Supreme Law] …………………………………………………….…viii

STATE CONSTITUTIONAL PROVISIONS

N.H. Const. Pt. FIRST, Art. 2 [Natural Rights] ……………………………………………viii, 22

N.H. Const. Pt. FIRST, Art. 12 [Protection and Taxation Reciprocal] …………………....viii, 22

N.H. Const. Pt. FIRST, Art. 14 [Legal Remedies to be Free, Complete, and Prompt] .viii, 23, 25

N.H. Const. Pt. FIRST, Art. 15 [Right of Accused] ………………………………….……viii, 19

CASES

Bilodeau v. Oliver Stores, Inc., 116 N.H. 83 (1976) ………………………………………..14, 18 Bragg v. NH Director of Motor Vehicles, 141 N.H. 677 (1997) ……………………………….19 Brannigan v. Usitalo, 134 N.H. 50 (1991) ……………………………………………………...22 Carroll v. Whitney, 29 S.W. 3d 14 (Tenn. 2000) ………………………………..….14, 15, 16, 17 Carson v. Maurer, 120 N.H. 925 (1980) …………………………………………….19, 20, 22, 23 DeBenedetto v. CLD, 153 N.H. 793 (2006) ………………………………..vi, 6, 7, 15, 16, 27, 28 Del Rio v. Northern Blower Co., 574 Fed 23 (1st Cir. 1978) …………………………………..19 Desousa v. Panama Canal, 202 F. Supp. 24-25 (1962) ………………………………………...12 Douglas v. Robbins & Miers, Inc., 505 F. Supp. 765 (1980) ……………………………….….14 Dow v. Latham, 80 N.H. 492 (1922) ……………………………………………………….…..29 Estate of Hunter v. General Motors, 729 S. 2d 1264 (Miss. 1999) …………….…………….....16 Everitt v. General Electric Company, 156 N.H. 202 (2007) ………………….…………..…….21

iv

Gould v. Concord Hospital, 126 N.H. 405 (1985) …………………………….………………..23 Hurley v. Public Service, 123 N.H. 750 (1983) ……………………………….………………..26 Johansen v. US, 434 U.S. 427, 782 S. Ct. 849, 96 L. Ed. 1051 (1952) …………………..…….11 Lavoie v. Hollinrack, 127 N.H. 764 (1986) ……………………………………………..…27, 28 Milai v. Tradewind Industries, Inc., 556 F. Supp. 36 (1982 Ed Mich.) …………………….….18 Mulhall v. Co., 80 N.H. 194 (1921) ………………………………………………………..11, 20 Nilsson v. Bierman, 150 N.H. 393 (2003) ………………………………………………6, 14, 16 Northland Ins. Co. v. Truckstops Corp. of America, 914 F. Supp. 216 (N.D. Ill. 1995) ……………………………………………………………..16 O’Neil v. Boston & M.R.R., 73 N.H. 85 (1904) ……………………………………………....29 Petition of Abbott, 139 N.H. 412 (1995) ………………………………………………..…12, 24 Ridings v. Ralph M. Parsons, Co., 914 S.W. 2d 79 (Tenn. 1996) …………………….…….....16 Robards v. Cotton Mills Associates, 677 A. 2d 540, 22 A.D.D. 1202 (Me. 1996) ….…….…..26 Rooney v. Fireman’s Fund Ins. Co., 138 N.H. 637 (1994) …………………………….20, 22, 23 Saviano v. Director, 151 N.H. 315 (2004) ……………………………………………..……....22 Thompson v. Forest, 136 N.H. 215 (1992) ………………………………………….…..…20, 24 Thone v. Liberty Mutual, 130 N.H. 702 (1988) …………………………………………..…...20 William Field Co. v. Nuroco, 115 N.H. 632 (1975) ………………….………………….…….18 Young v. Prevue Products, 130 N.H. 80 (1987) ……………………….………………….…...20

FEDERAL STATUTES 5 U.S.C.S. §8102 ………………………………………………………………………..ix, 12, 25 5 U.S.C.S. §8103 ……………………………………………………………………………ix, 12 5 U.S.C.S. §8104 …………………………………………………………………………….x, 12 5 U.S.C.S. §8105 ……………………………………………………………………………xi, 12 5 U.S.C.S. §8106 ……………………………………………………………………………xi, 12 5 U.S.C.S. §8107 ……………………………………………………………………………xi, 12

v

5 U.S.C.S. §8116……….…………………………………………………………..xiii, 12, 18, 25 5 U.S.C.S. §8119 …………………………………………………………………………..xiv, 12 5 U.S.C.S. §8131 …………………………………………………………………..xiv, 13, 17, 23 5 U.S.C.S. §8132 …………………………………………………………………...xv, 13, 15, 25

STATE STATUTES RSA 281-A:2, XI and XIII …………………………………………………………………xvi, 12 RSA 281-A:8 ……………………………………………………………………….xvi, 13, 18, 25 RSA 281-A:13 …………………………………………………………………..…xvii, 13, 15, 17 RSA 281-A:19 …………………………………………………………………………….xviii, 12 RSA 281-A:23 …………………………………………………………………………….xviii, 12 RSA 281-A:25 ……………………………………………………………………………...xxi, 12 RSA 281-A:28 ……………………………………………………………………………..xxii, 12 RSA 281-A:31 ……………………………………………………………………………..xxii, 12 RSA 281-A:32 ……………………………………………………………………………..xxii, 12 RSA 507:7-d ……………………………………………………………....vii, xxiv, 10, 26, 27, 29 RSA 507:7-e ……….vi, vii, xxv, 6, 7, 9, 11, 13, 14, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 RSA 507:7-f ……………………………………………………………………………….xxv, 19

OTHER AUTHORITIES Comparative Negligence Manual, §14.9 (1995) ……………………………………………….16 NH Jury Instructions, Section 6.1 (2007) ………………………………………………………21 NH Jury Instructions, Section 9.6 (2007) ………………………………………………………13 Salafia, New Hampshire Worker’s Compensation Manual, Section 1.02 (2010) ……………..13

vi

III. QUESTIONS PRESENTED FOR REVIEW

1. Did the Trial Court incorrectly extend the application of NH RSA 507:7-e, Apportionment of Damages, as interpreted by this Court in DeBenedetto v. CLD, 153 N.H. 793 (2006), to permit a jury to consider the alleged fault of Plaintiff’s employer, against which any claim of the Plaintiff or the defendant was statutorily barred? Raised in Plaintiff’s Motion in Limine Regarding Apportionment of Fault to Employer (Appendix, p. 12 to 17) and Plaintiff’s Memo of Law in Support of the Conclusion that Fault may not be Apportioned to Mr. Ocasio’s Employer, the United States Postal Service (Appendix, p. 38 to 45), Trial Transcript, p. 5, Plaintiff’s Motion to Modify or Set Aside Verdict (Appendix, p. 59 to 65) and Transcript post-trial Motions, p. 4 to 15. 2. Does NH RSA 507:7-e, Apportionment of Damages, despite its silence on the issue, restrict worker’s rights specifically preserved under RSA 281-A and 5 U.S.C.S. §8101, the state and federal worker’s compensation statutes? Raised in Plaintiff’s Motion in Limine Regarding Apportionment of Fault to Employer (Appendix, p. 12 to 17) and Plaintiff’s Memo of Law in Support of the Conclusion that Fault may not be Apportioned to Mr. Ocasio’s Employer, the United States Postal Service (Appendix, p. 38 to 45), Trial Transcript, p. 5, Plaintiff’s Motion to Modify or Set Aside Verdict (Appendix, p. 59 to 65) and Transcript post-trial Motions, p. 4 to 15. 3. Is it permissible for RSA 507:7-e, Apportionment of Damages, to limit a worker’s substantive rights specifically preserved under federal law (5 U.S.C.S. §8101, the federal worker’s compensation statute)? Raised in Plaintiff’s Motion in Limine Regarding Apportionment of Fault to Employer (Appendix, p. 12 to 17) and Plaintiff’s Memo of Law in Support of the Conclusion that Fault may not be Apportioned to Mr. Ocasio’s Employer, the United States Postal Service (Appendix, p. 38 to 45), Trial Transcript, p. 5, Plaintiff’s Motion to Modify or Set Aside Verdict (Appendix, p. 59 to 65) and Transcript post-trial Motions, p. 4 to 15. 4. If NH RSA 507:7-e, Apportionment of Damages, as interpreted by the Court in DeBenedetto permits a defendant to allow a jury to assign negligence to a Plaintiff’s employer, is the resulting harm to workers’ common law rights so substantial and pervasive that the entire worker’s compensation scheme, whether state or federal, deprives the worker of his constitutional rights to equal protection and due process under the Constitutions of both United

vii

States and State of New Hampshire, as well as his right to a remedy under the New Hampshire Constitution? Raised in Plaintiff’s Motion in Limine Regarding Apportionment of Fault to Employer (Appendix, p. 12 to 17) and Plaintiff’s Memo of Law in Support of the Conclusion that Fault may not be Apportioned to Mr. Ocasio’s Employer, the United States Postal Service (Appendix, p. 38 to 45), Trial Transcript, p. 5, Plaintiff’s Motion to Modify or Set Aside Verdict (Appendix, p. 59 to 65) and Transcript post-trial Motions, p. 4 to 15. 5. Is NH RSA 507:7-e, Apportionment of Damages, unconstitutional as applied to worker’s compensation rights because it deprives a worker of substantive rights preserved by the worker’s compensation scheme and because it allows the alleged fault of the employer to be used affirmatively against the rights of the employee, in violation of the fundamental “no fault” principle underlying worker’s compensation law? Raised in Plaintiff’s Motion in Limine Regarding Apportionment of Fault to Employer (Appendix, p. 12 to 17) and Plaintiff’s Memo of Law in Support of the Conclusion that Fault may not be Apportioned to Mr. Ocasio’s Employer, the United States Postal Service (Appendix, p. 38 to 45), Trial Transcript, p. 5, Plaintiff’s Motion to Modify or Set Aside Verdict (Appendix, p. 59 to 65) and Transcript post-trial Motions, p. 4 to 15. 6. When a negligent defendant is permitted to place before the jury the alleged fault of non-party under RSA 507:7-e, Apportionment of Damages, must any resulting verdict in the Plaintiff’s favor be allocated under the provisions of that statute, rather than NH RSA 507:7-d, Comparative Fault? Raised in Defendant’s Motion for Entry of Judgment for the Defendant (Appendix, p. 69 to 72), Plaintiff’s Objection thereto (Appendix, p. 73 to 75), and Transcript post-trial Motions, p. 4 to 15.

viii

IV. TEXT OF CONSTITUTIONAL PROVISIONS, STATUTES, AND LOCAL REGULATIONS

FEDERAL CONSTITUTIONAL PROVISIONS

U.S. Const. Art. VI, §2. [Supreme Law]

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

STATE CONSTITUTIONAL PROVISIONS

N.H. Const. Pt. FIRST, Art. 2 [Natural Rights] (2010)

All men have certain natural, essential, and inherent rights – among which are, the enjoying and defending life and liberty; acquiring possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Equality of rights under law shall not be denied or abridged by this state on account of race, creed, color, sex, or national origin.

N.H. Const. Pt. FIRST, Art. 12 [Protection and Taxation Reciprocal] (2010)

Every member of the community has a right to be protected by it, in the enjoyment of his life, liberty, and property; he is therefore bound to contribute his share in the expense of such protection, and to yield his personal service when necessary. But no part of a man’s property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. Nor are the inhabitants of this state controllable by any other laws than those to which they, or their representative body, have given their consent.

N.H. Const. Pt. FIRST, Art. 14 [Legal Remedies to be Free, Complete, and Prompt] (2010)

Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without denial; promptly, and without delay; conformably to the laws.

N.H. Const. Pt. FIRST, Art. 15 [Right of Accused] (2010)

No subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse or furnish evidence against himself. Every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defense, by himself, and counsel. No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his

ix

life, liberty, or estate, but by the judgment of his peers, or the law of the land; provided that, in any proceeding to commit a person acquitted of a criminal charge by reason of insanity, due process shall require that clear and convincing evidence that the person is potentially dangerous to himself or to others and that the person suffers from a mental disorder must be established. Every person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the state if need is shown; this right he is at liberty to waive, but only after the matter has been thoroughly explained by the Court.

FEDERAL STATUTES

5 U.S.C.S. §8102 - Compensation for disability or death of employee

(a) The United States shall pay compensation as specified by this subchapter for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty, unless the injury or death is –

(1) caused by willful misconduct of the employee; (2) caused by the employee's intention to bring about the injury or death of himself or of

another; or (3) proximately caused by the intoxication of the injured employee.

(b) Disability or death from a war-risk hazard or during or as a result of capture, detention, or other restraint by a hostile force or individual, suffered by an employee who is employed outside the continental United States or in Alaska or in the areas and installations in the Republic of Panama made available to the United States pursuant to the Panama Canal Treaty of 1977 and related agreements (as described in section 3(a) of the Panama Canal Act of 1979), is deemed to have resulted from personal injury sustained while in the performance of his duty, whether or not the employee was engaged in the course of employment when the disability or disability resulting in death occurred or when he was taken by the hostile force or individual. This subsection does not apply to an individual –

(1) whose residence is at or in the vicinity of the place of his employment and who was not living there solely because of the exigencies of his employment, unless he was injured or taken while engaged in the course of his employment; or

(2) who is a prisoner of war or a protected individual under the Geneva Conventions of 1949 and is detained or utilized by the United States.

This subsection does not affect the payment of compensation under this subchapter derived otherwise than under this subsection, but compensation for disability or death does not accrue for a period for which pay, other benefit, or gratuity from the United States accrues to the disabled individual or his dependents on account of detention by the enemy or because of the same disability or death, unless that pay, benefit, or gratuity is refunded or renounced.

5 U.S.C.S. §8103 - Medical services and initial medical and other benefits

(a) The United States shall furnish to an employee who is injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician,

x

which the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation. These services, appliances, and supplies shall be furnished –

(1) whether or not disability has arisen; (2) notwithstanding that the employee has accepted or is entitled to receive benefits under

subchapter III of chapter 83 of this title or another retirement system for employees of the Government; and

(3) by or on the order of United States medical officers and hospitals, or, at the employee's option, by or on the order of physicians and hospitals designated or approved by the Secretary.

The employee may initially select a physician to provide medical services, appliances, and supplies, in accordance with such regulations and instructions as the Secretary considers necessary, and may be furnished necessary and reasonable transportation and expenses incident to the securing of such services, appliances, and supplies. These expenses, when authorized or approved by the Secretary, shall be paid from the Employees' Compensation Fund. (b) The Secretary, under such limitations or conditions as he considers necessary, may authorize the employing agencies to provide for the initial furnishing of medical and other benefits under this section. The Secretary may certify vouchers for these expenses out of the Employees' Compensation Fund when the immediate superior of the employee certifies that the expense was incurred in respect to an injury which was accepted by the employing agency as probably compensable under this subchapter. The Secretary shall prescribe the form and content of the certificate.

5 U.S.C.S. §8104 - Vocational rehabilitation

(a) The Secretary of Labor may direct a permanently disabled individual whose disability is compensable under this subchapter to undergo vocational rehabilitation. The Secretary shall provide for furnishing the vocational rehabilitation services. In providing for these services, the Secretary, insofar as practicable, shall use the services or facilities of State agencies and corresponding agencies which cooperate with the Secretary of Health, Education, and Welfare in carrying out the purposes of chapter 4 of title 29, except to the extent that the Secretary of Labor provides for furnishing these services under section 8103 of this title. The cost of providing these services to individuals undergoing vocational rehabilitation under this section shall be paid from the Employees' Compensation Fund. However, in reimbursing a State or corresponding agency under an arrangement pursuant to this section the cost to the agency reimbursable in full under section 32(b)(1) of title 29 is excluded. (b) Notwithstanding section 8106, individuals directed to undergo vocational rehabilitation by the Secretary shall, while undergoing such rehabilitation, receive compensation at the rate provided in sections 8105 and 8110 of this title, less the amount of any earnings received from remunerative employment, other than employment undertaken pursuant to such rehabilitation.

xi

5 U.S.C.S. §8105 - Total disability

(a) If the disability is total, the United States shall pay the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his monthly pay, which is known as his basic compensation for total disability. (b) The loss of use of both hands, both arms, both feet, or both legs, or the loss of sight of both eyes, is prima facie permanent total disability. 5 U.S.C.S. §8106 - Partial disability (a) If the disability is partial, the United States shall pay the employee during the disability monthly monetary compensation equal to 66 2/3 percent of the difference between his monthly pay and his monthly wage-earning capacity after the beginning of the partial disability, which is known as his basic compensation for partial disability. (b) The Secretary of Labor may require a partially disabled employee to report his earnings from employment or self-employment, by affidavit or otherwise, in the manner and at the times the Secretary specifies. The employee shall include in the affidavit or report the value of housing, board, lodging, and other advantages which are part of his earnings in employment or self-employment and which can be estimated in money. An employee who -

(1) fails to make an affidavit or report when required; or (2) knowingly omit or understates any part of his earnings;

forfeits his right to compensation with respect to any period for which the affidavit or report was required. Compensation forfeited under this subsection, if already paid, shall be recovered by a deduction from the compensation payable to the employee or otherwise recovered under section 8129 of this title, unless recovery is waived under that section.

(c) A partially disabled employee who -

(1) refuses to seek suitable work; or (2) refuses or neglects to work after suitable work is offered to, procured by, or secured

for him;

is not entitled to compensation.

5 U.S.C.S. §8107 - Compensation schedule

(a) If there is permanent disability involving the loss, or loss of use, of a member or function of the body or involving disfigurement, the employee is entitled to basic compensation for the disability, as provided by the schedule in subsection (c) of this section, at the rate of 66 2/3 percent of his monthly pay. The basic compensation is –

(1) payable regardless of whether the cause of the disability originates in a part of the body other than that member;

xii

(2) payable regardless of whether the disability also involves another impairment of the body; and

(3) in addition to compensation for temporary total or temporary partial disability. (b) With respect to any period after payments under subsection (a) of this section have ended, an employee is entitled to compensation as provided by –

(1) section 8105 of this title if the disability is total; or (2) section 8106 of this title if the disability is partial.

(c) The compensation schedule is as follows:

(1) Arm lost, 312 weeks' compensation. (2) Leg lost, 288 weeks' compensation. (3) Hand lost, 244 weeks' compensation. (4) Foot lost, 205 weeks' compensation. (5) Eye lost, 160 weeks' compensation. (6) Thumb lost, 75 weeks' compensation. (7) First finger lost, 46 weeks' compensation. (8) Great toe lost, 38 weeks' compensation. (9) Second finger lost, 30 weeks' compensation. (10) Third finger lost, 25 weeks' compensation. (11) Toe other than great toe lost, 16 weeks' compensation. (12) Fourth finger lost, 15 weeks' compensation. (13) Loss of hearing –

(A) complete loss of hearing of one ear, 52 weeks' compensation; or (B) complete loss of hearing of both ears, 200 weeks' compensation.

(14) Compensation for loss of binocular vision or for loss of 80 percent or more of the vision of an eye is the same as for loss of the eye.

(15) Compensation for loss of more than one phalanx of a digit is the same as for loss of the entire digit. Compensation for loss of the first phalanx is one-half of the compensation for loss of the entire digit.

(16) If, in the case of an arm or a leg, the member is amputated above the wrist or ankle, compensation is the same as for loss of the arm or leg, respectively.

(17) Compensation for loss of use of two or more digits, or one or more phalanges of each of two or more digits, of a hand or foot, is proportioned to the loss of use of the hand or foot occasioned thereby.

(18) Compensation for permanent total loss of use of a member is the same as for loss of the member.

(19) Compensation for permanent partial loss of use of a member may be for proportionate loss of use of the member. The degree of loss of vision or hearing under this schedule is determined without regard to correction.

(20) In case of loss of use of more than one member or parts of more than one member as enumerated by this schedule, the compensation is for loss of use of each member or part thereof, and the awards run consecutively. However, when the injury affects only two or more digits of the same hand or foot, paragraph (17) of this subsection applies, and when partial bilateral loss of hearing is involved, compensation is computed on the loss as affecting both ears.

xiii

(21) For serious disfigurement of the face, head, or neck of a character likely to handicap an individual in securing or maintaining employment, proper and equitable compensation not to exceed $3,500 shall be awarded in addition to any other compensation payable under this schedule.

(22) For permanent loss or loss of use of any other important external or internal organ of the body as determined by the Secretary, proper and equitable compensation not to exceed 312 weeks' compensation for each organ so determined shall be paid in addition to any other compensation payable under this schedule.

5 U.S.C.S. §8116 - Limitations on right to receive compensation

(a) While an employee is receiving compensation under this subchapter, or if he has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued, he may not receive salary, pay, or remuneration of any type from the United States, except –

(1) in return for service actually performed; (2) pension for service in the Army, Navy, or Air Force; (3) other benefits administered by the Department of Veterans Affairs unless such

benefits are payable for the same injury or the same death; and (4) retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed

Forces or other uniformed services. However, eligibility for or receipt of benefits under subchapter III of chapter 83 of this title, or another retirement system for employees of the Government, does not impair the right of the employee to compensation for scheduled disabilities specified by section 8107(c) of this title. (b) An individual entitled to benefits under this subchapter because of his injury, or because of the death of an employee, who also is entitled to receive from the United States under a provision of statute other than this subchapter payments or benefits for that injury or death (except proceeds of an insurance policy), because of service by him (or in the case of death, by the deceased) as an employee or in the armed forces, shall elect which benefits he will receive. The individual shall make the election within 1 year after the injury or death or within a further time allowed for good cause by the Secretary of Labor. The election when made is irrevocable, except as otherwise provided by statute. (c) The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel. (d) Notwithstanding the other provisions of this section, an individual receiving benefits for disability or death under this subchapter who is also receiving benefits under subchapter III of

xiv

chapter 84 of this title or benefits under title II of the Social Security Act shall be entitled to all such benefits, except that –

(1) benefits received under section 223 of the Social Security Act (on account of disability) shall be subject to reduction on account of benefits paid under this subchapter pursuant to the provisions of section 224 of the Social Security Act; and

(2) in the case of benefits received on account of age or death under title II of the Social Security Act, compensation payable under this subchapter based on the Federal service of an employee shall be reduced by the amount of any such social security benefits payable that are attributable to Federal service of that employee covered by chapter 84 of this title. However, eligibility for or receipt of benefits under chapter 84 of this title, or benefits under title II of the Social Security Act by virtue of service covered by chapter 84 of this title, does not affect the right of the employee to compensation for scheduled disabilities specified by section 8107(c) of this title.

5 U.S.C.S. §8119 - Notice of injury or death

An employee injured in the performance of his duty, or someone on his behalf, shall give notice thereof. Notice of a death believed to be related to the employment shall be given by an eligible beneficiary specified in section 8133 of this title, or someone on his behalf. A notice of injury or death shall –

(a) be given within 30 days after the injury or death; (b) be given to the immediate superior of the employee by personal delivery or by

depositing it in the mail properly stamped and addressed; (c) be in writing; (d) state the name and address of the employee; (e) state the year, month, day, and hour when and the particular locality where the injury

or death occurred; (f) state the cause and nature of the injury, or, in the case of death, the employment

factors believed to be the cause; and (g) be signed by and contain the address of the individual giving the notice.

5 U.S.C.S. §8131 - Subrogation of the United States

(a) If an injury or death for which compensation is payable under this subchapter is caused under circumstances creating a legal liability on a person other than the United States to pay damages, the Secretary of Labor may require the beneficiary to –

(1) assign to the United States any right of action he may have to enforce the liability or any right he may have to share in money or other property received in satisfaction of that liability; or

(2) prosecute the action in his own name. An employee required to appear as a party or witness in the prosecution of such an action is in an active duty status while so engaged.

xv

(b) A beneficiary who refuses to assign or prosecute an action in his own name when required by the Secretary is not entitled to compensation under this subchapter. (c) The Secretary may prosecute or compromise a cause of action assigned to the United States. When the Secretary realizes on the cause of action, he shall deduct therefrom and place to the credit of the Employees' Compensation Fund the amount of compensation already paid to the beneficiary and the expense of realization or collection. Any surplus shall be paid to the beneficiary and credited on future payments of compensation payable for the same injury. However, the beneficiary is entitled to not less than one-fifth of the net amount of a settlement or recovery remaining after the expenses thereof have been deducted. (d) If an injury or death for which compensation is payable under this subchapter is caused under circumstances creating a legal liability in the Panama Canal Company to pay damages under the law of a State, a territory or possession of the United States, the District of Columbia, or a foreign country, compensation is not payable until the individual entitled to compensation –

(1) releases to the Panama Canal Company any right of action he may have to enforce the liability of the Panama Canal Company; or

(2) assigns to the United States any right he may have to share in money or other property received in satisfaction of the liability of the Panama Canal Company.

5 U.S.C.S. §8132 - Adjustment after recovery from a third person

If an injury or death for which compensation is payable under this subchapter is caused under circumstances creating a legal liability in a person other than the United States to pay damages, and a beneficiary entitled to compensation from the United States for that injury or death receives money or other property in satisfaction of that liability as the result of suit or settlement by him or in his behalf, the beneficiary, after deducting therefrom the costs of suit and a reasonable attorney's fee, shall refund to the United States the amount of compensation paid by the United States and credit any surplus on future payments of compensation payable to him for the same injury. No court, insurer, attorney, or other person shall pay or distribute to the beneficiary or his designee the proceeds of such suit or settlement without first satisfying or assuring satisfaction of the interest of the United States. The amount refunded to the United States shall be credited to the Employees' Compensation Fund. If compensation has not been paid to the beneficiary, he shall credit the money or property on compensation payable to him by the United States for the same injury. However, the beneficiary is entitled to retain, as a minimum, at least one-fifth of the net amount of the money or other property remaining after the expenses of a suit or settlement have been deducted; and in addition to this minimum and at the time of distribution, an amount equivalent to a reasonable attorney's fee proportionate to the refund to the United States.

xvi

STATE STATUTES

RSA 281-A:2

XI. ""Injury'' or ""personal injury'' as used in and covered by this chapter means accidental injury or death arising out of and in the course of employment, or any occupational disease or resulting death arising out of and in the course of employment, including disability due to radioactive properties or substances or exposure to ionizing radiation. ""Injury'' or ""personal injury'' shall not include diseases or death resulting from stress without physical manifestation. ""Injury'' or "" personal injury'' shall not include a mental injury if it results from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action, taken in good faith by an employer. No compensation shall be allowed to an employee for injury proximately caused by the employee's willful intention to injure himself or injure another. Conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable only if contributed to or aggravated or accelerated by the injury. Notwithstanding any law to the contrary, ""injury'' or ""personal injury'' shall not mean accidental injury, disease, or death resulting from participation in athletic/recreational activities, on or off premises, unless the employee reasonably expected, based on the employer's instruction or policy, that such participation was a condition of employment or was required for promotion, increased compensation, or continued employment.”

XIII. ""Occupational disease” means an injury arising out of and in the course of the employee’s employment and due to causes and conditions characteristic of and peculiar to the particular trade, occupation or employment. It shall not include other diseases or death therefrom unless they are the direct result of accidental injury arising out of or in the course of employment, nor shall it include either a disease which existed at commencement of the employment or a disease to which the last injurious exposure to its hazards occurred prior to August 31, 1947.” RSA 281-A:8 Employees Presumed to Have Accepted. –

I. An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee or the employee's personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:

(a) Against the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers; and

(b) Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers.

II. The spouse of an employee entitled to benefits under this chapter, or any other person who might otherwise be entitled to recover damages on account of the employee's personal injury or death, shall have no direct action, either at common law or by statute or otherwise, to recover for such damages against any person identified in subparagraph I(a) or (b).

III. 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. However, if a former employee makes a claim under this chapter for compensation for injuries allegedly caused by such wrongful termination or

xvii

constructive discharge, the employee shall be deemed to have elected the remedies of this chapter, and to have waived rights to recover damages for such wrongful termination or constructive discharge under common law or other statute. Similarly, if a former employee brings an action under common law or other statute to recover damages for such wrongful termination or constructive discharge, the employee shall be deemed to have waived claims under this chapter for compensation allegedly caused by such termination or discharge.

RSA 281-A:13 Liability of Third Person. –

I. (a) An injured employee, in addition to the benefits of this chapter, may obtain damages or benefits from or proceed at law or otherwise against another person to recover damages or benefits if:

(1) An injury for which compensation is payable under the provisions of this chapter has been sustained; and

(2) The circumstances of the injury create in another person a legal liability to pay damages in respect thereto, or a contractual obligation to pay benefits under the uninsured motorist provision of any motor vehicle insurance policy; and

(3) The action has not been barred under RSA 281-A:8. (b) The employer, or the employer's insurance carrier, shall have a lien on the amount of

damages or benefits recovered by the employee, less the expenses and costs of action, to the extent of the compensation, medical, hospital, or other remedial care already paid or agreed or awarded to be paid by the employer, or the employer's insurance carrier, under this chapter, less the employer's or the employer's insurance carrier's pro rata share of expenses and costs of action as determined in paragraph IV.

II. (a) The administrator of an employee's estate may, in addition to damages or benefits obtained under this section payable to the employee's dependents, obtain damages or benefits from or proceed at law or otherwise against another person to recover damages or benefits if:

(1) The death of the employee has resulted under circumstances creating in another person a legal liability to pay damages in respect thereto, or a contractual obligation to pay benefits under the uninsured motorist provisions of any motor vehicle insurance policy;

(2) The action has not been barred under RSA 281-A:8; and (3) Damages or benefits obtained under this section shall be in addition to the

benefits of this chapter payable to the employee's dependents. (b) The employer, or the employer's insurance carrier, shall have a lien on the amount of

damages or benefits recovered which remain after deduction of such of the expenses itemized in RSA 556:14 as are not paid by the employer or the employer's insurance carrier, and after deduction of the distributive share of any person to whom nothing is payable under RSA 281-A:26, to the extent of the compensation, medical, hospital, or other remedial care and funeral expenses already paid or agreed or awarded to be paid by the employer, or the employer's insurance carrier, under this chapter.

III. (a) No settlement by an employee or, in case of death, by the administrator of the employee's estate, of the employee's or said administrator's claim for damages or benefits at law or otherwise against such third person shall be binding until approved by the commissioner or, if an action has been brought, by the court or arbitration proceeding in which such action is pending or to which the writ is returnable. The commissioner or the court or the arbitrator, as the

xviii

case may be, shall make provisions for payment to the employer or the employer's insurance carrier of the amount of the lien after expenses and costs of action have been paid.

(b) (1) In any case in which the employee or, in case of death, the administrator of the employee's estate neglects to exercise the employee's right of action by failing to proceed at law or otherwise against such third person for a period of 9 months after the injury, the employer or the employer's insurance carrier may so proceed and shall be subrogated to the rights of the injured employee or, in case of death, to the rights of the administrator to recover against such third person.

(2) If the employer or the employer's insurance carrier recovers from such other person damages or benefits, after expenses and costs of action have been paid, in excess of the amount of the lien as defined in this section, then any such excess shall be paid to the injured employee or, in case of death, to the administrator of the employee's estate for distribution in accordance with the provisions of RSA 556:14.

(c) The procedure for approval of a settlement and for safeguarding the rights of the employee or, in case of death, the rights of the administrator of the employee's estate in such cases shall be the same as is provided for protecting the rights of the employer or the employer's insurance carrier in case of a settlement made or an action at law or otherwise brought by the employee or the administrator of the employee's estate under this section.

IV. Whenever there is a recovery against a third person under paragraph I, II, or III, the commissioner, the arbitrator, or the superior court, as the case may be, shall order such division of expenses and costs of action, including attorneys' fees, between the employer or the employer's insurance carrier and the employee as justice may require.

V. Whenever the lien created by paragraph I, II, or III is in the state of New Hampshire by virtue of benefits paid to or on behalf of a state employee, the governor and council, upon petition by the injured employee, may, in their discretion, waive all or part of the lien.

VI. Any provision in any agreement which requires employers or the employer's insurance carrier to waive any rights of subrogation granted pursuant to this chapter is hereby prohibited.

RSA 281-A:19 Notice of Injury. –

Claims for benefits under this chapter shall be barred unless notice of injury is given to the employer within 2 years from the date of the injury; provided, however, that if the nature of the injury and its possible relationship to the employment are not known to the employee, the time for filing notice shall not begin to run until the earlier of the following:

I. The date the employee knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employment; or

II. In the event of death, the date any dependent knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employee's employment. RSA 281-A:23 Medical, Hospital, and Remedial Care. –

I. An employer subject to this chapter, or the employer's insurance carrier, shall furnish or cause to be furnished to an injured employee reasonable medical, surgical, and hospital services, remedial care, nursing, medicines, and mechanical and surgical aids for such period as the nature

xix

of the injury may require. The injured employee shall have the right to select his or her own physician.

II. The employer, or the employer's insurance carrier, shall pay the cost of artificial limbs, eyes, teeth, orthopedic appliances, and physical and surgical aids made necessary by such injury; shall pay the cost of replacement or repair when such is made necessary by wear and tear or by physical change in the person; and shall pay compensation for disability resulting from the replacement or repair, based on the employee's average wages at the time of the original injury. Notwithstanding RSA 281-A:48, I, a party may petition the commissioner for payment of such compensation at any time, if the disability results solely from the replacement or repair. If an employee by accident arising out of and in the course of the employment has suffered the loss of glasses, false teeth, an artificial member, or hearing aid, the employer or the employer's insurance carrier shall pay the employee an amount equal to the value of the property so lost.

III. If any of the foregoing objects are in existence at the time of the injury and are damaged or destroyed as a result of an injury, the employer, or the employer's insurance carrier, shall pay the cost of repair or replacement.

IV. Health care providers shall not refer an injured worker for medical care or related services to any other health care provider, organization, association, corporation, partnership or group practice in which the referring health care provider or any member of its professional association or group practice has a financial or ownership interest unless the referral is ethically appropriate and medically indicated. The commissioner shall confirm in writing that an exception is authorized for the welfare of the specific injured worker. This paragraph shall not affect emergency situations, referrals from a specialist to a subspecialist, referrals from a health care provider to a specialist in another field, or referrals from a primary care practitioner to a specialist.

V. (a) The act of the worker in applying for workers' compensation benefits constitutes authorization to any physician, hospital, chiropractor, or other medical vendor to supply all relevant information regarding the worker's occupational injury or illness to the insurer, the insurer's representative, the worker's employer, the worker's representative, the worker's employer's representative, and the department. Medical information relevant to a claim includes a past history of complaints of, or treatment of, a condition similar to that presented in the claim. Any person who supplies information in accordance with this subparagraph and with rules adopted by the commissioner shall be immune from any liability, civil or criminal, that might otherwise be incurred for such action. The physician may require evidence from the workers' representative in his or her representative capacity. This authorization shall be valid for the duration of the work-related injury or illness.

(b) The commissioner shall develop a form on which health care providers and health care facilities shall report medical, surgical or other remedial treatment. The report shall include, but is not limited to, information relative to the up-to-date medical status of the employee, any medical information relating to the employee's ability to return to work, whether or not there are physical restrictions, what those restrictions are, the date of maximum medical improvement, and, where applicable, the percentage of permanent impairment in accordance with the ""Guides to the Evaluation of Permanent Impairment'' published by the American Medical Association and as set forth in RSA 281-A:32, and any other information to enable the employer or insurance carrier to determine the benefits, if any, that are due and payable. In addition to the report required under this section, the health care provider shall furnish a statement confirming that the treatment or services rendered were reasonable and necessary with respect to the bodily injury

xx

sustained. The statement shall read as follows: ""I certify that the narrative descriptions of the principal and secondary diagnosis and the major procedures performed are accurate and complete to the best of my knowledge.'' The health care provider shall date and sign the statement.

(c) The commissioner may assess a civil penalty of up to $2,500 on any health care provider who without sufficient cause, as determined by the commissioner, bills an injured employee or his or her employer for services covered by insurers or self-insurers under this chapter. There shall be no reimbursement for services rendered, unless the health care provider or health care facility giving medical, surgical, or other remedial treatment furnishes the report required in subparagraph (b) to the employer, insurance company, or claims adjusting company within 10 days of the first treatment. First aid treatment is excluded from the 10-day reporting requirement. Additionally, for good cause, a hearing officer may waive the 10-day reporting requirement and order remuneration paid. The employer, claims adjustment company, self-insurer or insurer shall pay the health care provider or health care facility within 30 days of receipt of a bill for services.

(d) Any employer, insurance carrier, injured employee, or attorney representing any such person, who receives any medical report, which includes, but is not limited to, information relative to the remedial treatment, care and attendance of the injured employee, shall file the report with the commissioner within 15 days after receipt of such report. Any medical report which has not been previously filed with the commissioner shall not be received in evidence in a contested case unless the party offering the report has furnished a copy thereof to the opposing party or his attorney at least 5 days prior to the hearing at which it is offered. The health care provider or health care facility shall also provide to the injured employee, or to his attorney, on demand, a copy of each medical report. The injured employee shall only be charged an amount reflecting the actual cost to the health care provider or health care facility in furnishing the copy. Each such health care provider or health care facility shall provide any additional information relating to the remedial treatment, care, and attendance of an injured employee that the commissioner may reasonably request as part of its investigation of a claim for benefits under this chapter. Failure to provide such reports may result in imposition by the commissioner of a civil penalty of up to $2,500.

(e) The commissioner may assess a civil penalty of up to $2,500 on any insurance carrier, self-insurer, or payor acting on behalf of such insurance carrier or self-insurer, which without sufficient cause, as determined by the commissioner, fails, within 30 days after receipt of a medical bill:

(1) To make payment of such medical bill pursuant to this section; or (2) To deny such payment, notifying the health care provider, employee, and

labor department of such denial. This denial shall give a valid reason for the denial and shall advise the claimant of the right to petition the commissioner for a hearing.

VI. An employer subject to this chapter, or the employer's insurance carrier, may furnish or cause to be furnished, testing for the presence of a bloodborne disease when a critical exposure that arises out of and in the course of employment occurs. Such testing shall be provided without prejudice as to the issue of the causal relationship of any subsequently diagnosed bloodborne disease to the employee's work and without prejudice to the compensability of the bloodborne disease as an occupational disease or an accidental injury for the purposes of RSA 281-A.

xxi

RSA 281-A:25 Vocational Rehabilitation. – I. If, as a result of an injury covered by this chapter, an employee is unable to perform

work for which he or she has previous training or experience, the employee shall be entitled to such vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore such employee to suitable employment. If such services are not voluntarily offered by the employer or the carrier and accepted by the employee, the commissioner, if necessary through informal hearing affording all parties an opportunity to be heard on the question, may refer the employee to a qualified physician or appropriate facility for evaluation of the practicability of, need for, and kind of service, treatment, or training necessary and appropriate to render the employee fit for a remunerative occupation.

II. Upon receipt of such findings and after affording all parties an opportunity to be heard thereon, the commissioner may order that the services and treatment recommended or such other rehabilitation treatment or service the commissioner may deem necessary be provided at the expense of the employer or its insurance carrier.

III. Vocational rehabilitation training, treatment or service shall not extend for a period of more than one year, except that in unusual cases by special order of the commissioner, after informal hearing, the period may be extended as is deemed to be reasonable and necessary to accomplish a successful result.

IV. If vocational rehabilitation requires residence at or near a facility or institution which is away from the employee's customary residence, the employer shall pay the reasonable cost of the employee's board, lodging, or travel, or any combination of these. In addition, the employer, or its insurance carrier, shall pay the reasonable cost for books, tools or other basic materials required in such rehabilitation process.

V. If an employee refuses to accept vocational rehabilitation ordered by the commissioner, the employee may lose compensation for each week of the refusal if the commissioner so directs.

VI. To carry out the provisions of this section, there is hereby created within the workers' compensation division a staff of vocational and physical rehabilitation personnel whose positions shall be classified under RSA 21-I:42 et seq.

VII. A rehabilitation provider shall prepare an individualized written rehabilitation plan on all compensable workers' compensation claims which require 2 or more counseling sessions, vocational evaluations, training, work evaluation, work hardening, or placement. Prior to implementation of the plan, the plan shall be signed by the employer and employee and filed with the commissioner. The commissioner may, within 14 days of the filing of such plan, disallow any plan for rehabilitation that does not appear to be in the best interest of the employee or designed to return the employee back to work.

VIII. Each rehabilitation provider shall disclose in writing at the first meeting or written communication with the employee, any ownership, interest, or affiliation between the firm which employs the rehabilitation provider and the employer, insurance company, or claims adjusting company, including the nature and extent of the affiliation or interest. Each rehabilitation provider shall also disclose in writing to all parties any affiliation, business referral or other arrangement between the provider and any other party, including any attorney, any physician, or any chiropractor.

xxii

RSA 281-A:28 Compensation for Temporary Total Disability. – An employer subject to this chapter, or the employer's insurance carrier, shall pay

workers' compensation to an employee sustaining a personal injury which is totally disabling, but temporary in nature, and the employee is unable to return to work, but has not achieved maximum medical improvement, but not for the first 3 days of disability unless the disability continues for 14 days or longer, as follows:

I. If an employee's average weekly wage is 30 percent or less of the state's average weekly wage, weekly compensation shall be the full amount of that employee's average weekly wage. However, the maximum allowable weekly compensation rate under this paragraph shall not exceed 90 percent of the employee's after tax earnings as determined by RSA 281-A:15.

II. If an employee's average weekly wage is over 30 percent of the state's average weekly wage, weekly compensation shall be 60 percent of that employee's average weekly wage or 30 percent of the state's average weekly wage, whichever is greater, but in no event shall weekly compensation exceed 150 percent of the state's average weekly wage rounded off to the nearest dollar as the commissioner determines for the year in which the injury occurred. In no event shall the maximum weekly compensation rate exceed 100 percent of the employee's after tax weekly earnings as determined under RSA 281-A:15. For purposes of this section, the department of employment security shall establish the state's average weekly wage for the immediate preceding calendar year to be effective the following July 1.

III. Notwithstanding the provisions of RSA 281-A:26, 28, 29, and 32, the compensation of persons who regularly operate businesses or practice their trades, professions, or occupations as provided by RSA 281-A:2, VI shall be computed on the basis of 80 percent of their average weekly salary, but no more than 150 percent of the state's average weekly wage. The state's insurance commissioner is hereby authorized to review and approve an appropriate classification for the foregoing class of persons and a reasonable rate, if the commissioner chooses to do so. RSA 281-A:31 Compensation for Temporary Partial Disability. –

If the disability for work resulting from an injury is partial, and the employee is able to work but has not yet reached maximum medical improvement, the employer, or the employer's insurance carrier, during such disability, but not for the first 3 days of disability unless the disability continues for 14 days or longer, shall pay to the injured employee a weekly compensation equal to 60 percent of the difference between the employee's average weekly wage before the injury and the average weekly wage which he or she is able to earn thereafter; but in no instance shall the weekly compensation exceed the amount set forth by the compensation schedule in RSA 281-A:28. Payments shall not continue after the disability ends, nor longer than 262 weeks; and, if the partial disability begins after a period of total disability, the period of total disability shall be deducted from such total period of 262 weeks. RSA 281-A:32 Scheduled Permanent Impairment Award. –

I. Basic Award. Except when death results from injury, in addition to other benefits payable under this chapter, an award shall be paid to employees in amounts provided by RSA 281-A:28 for the number of weeks set forth in this section for permanent bodily loss or losses: (a) Total loss of arm 210 (b) Total loss of hand 189

xxiii

(c) Total loss of thumb 76 (d) Total loss of index finger 47 (e) Total loss of middle finger 38 (f) Total loss of ring finger 19 (g) Total loss of little finger 9 (h) Total loss of leg 140 (i) Total loss of foot 98 (j) Total loss of great toe 18 (k) Total loss of toe, other 3 (l) Total loss of vision--one eye 84 (m) Total loss of vision--both eyes 300 (n) Total loss of hearing in one ear 30 (o) Total loss of binaural hearing 123

II. Phalanges. A loss in excess of the distal phalanx shall entitle the employee to the award for the loss of the entire digit. A loss of a distal phalanx shall result in half the award for the loss of the entire digit. A loss of less than one phalanx shall result in one quarter of the award for the loss of the entire digit.

III. Amputated Arm or Leg. The amputation of an arm or leg at or above the elbow or at or above the knee, respectively, shall entitle the employee to the award for the loss of the arm or leg. Otherwise, amputation of an arm or leg shall result in the award for the loss of a hand or foot.

IV. Two or More Digits. The loss of 2 or more digits, or the loss of one or more phalanges of such number of digits, of a hand or foot, shall entitle the employee to an award proportioned to the loss of use of the hand or foot occasioned by that loss; except that the income benefits for the loss of a hand or foot may not be exceeded.

V. Substantial Loss of Vision. The loss of 80 percent or more of the vision of an eye, uncorrected by an eye lens, entitles the employee to the award for the total loss of an eye.

VI. Total Loss of Use. An award for the permanent total loss of the use of a member shall be identical to that for the loss of the member, except that amputation of such member resulting from the original or subsequent injury shall not entitle the employee to a further award under this section.

VII. Partial Loss of Use. An award for the permanent partial loss of the use of a member shall be for a period proportional to the period during which an award is payable for the total loss or the loss of the use of the member. Such award shall be in the proportion that such partial loss bears to a total loss; provided, however, that if subsequent amputation of such member is related to the original or a subsequent injury and results in an increased loss of such member, an additional award shall accrue on the basis of the difference between the award for the newly established loss and the award for the original loss.

VIII. Subsequent Amputation. Upon amputation of a member resulting from an original or subsequent injury which has been preceded by the loss of a component or part of such member, an additional award shall accrue on the basis of the difference between the award for the newly established loss and the award for the original loss.

IX. More Than One Permanent Loss. If an injury results in more than one permanent bodily loss specified in paragraphs I-VIII, or if the injury is to the spinal column or the spinal cord, or to the brain, or involves scarring, disfigurement, or other skin impairment resulting from a burn or burns, an award shall be made on the basis of a maximum of 350 weeks with the

xxiv

appropriate number of weeks to be determined in proportion to the maximum in accordance with the percent of the whole person specified for such bodily losses in the 5th edition of ""Guides to the Evaluation of Permanent Impairment'' published by the American Medical Association. Injury to spinal column or spinal cord shall not be construed to permit an award under this section as a result of soft tissue injury, nor to permit such an award on the basis of more than one permanent loss, unless such injury results in loss of use of upper or lower extremities. For the purposes of this paragraph ""injury to the brain'' means cerebral or neurological impairment due to central nervous system injury as described in said American Medical Association Guide.

X. A Separate Right. Except when death results from an injury, the scheduled awards under this section accrue to the injured employee simply by virtue of the loss or loss of the use of a member of the body, there being conferred upon the employee a right which is separate and independent of the rights provided by RSA 281-A:28 and 281-A:31.

XI. Payment Due. Payment of the scheduled award becomes due upon prompt medical disclosure, after maximum medical improvement has been achieved, regarding the loss or loss of the use of the member of the body. For the purposes of determining disability rates, the average weekly wage used shall be the average weekly wage of the employee at the time of the injury. No later than 15 days following such disclosure the employer, or the employer's insurance carrier shall notify the commissioner as to whether it objects to the extent of the loss claimed by the employee, in which case it shall have 30 days to arrange for a medical examination, pursuant to RSA 281-A:38, and request a hearing and determination by the commissioner. Payment of the scheduled award shall be made in a single payment.

XII. Dispute Resolution. In the event of a dispute as to the amount of compensation or the percentage of permanent partial loss or both, the commissioner shall determine the award to be made on the basis of competent medical evidence.

XIII. Balance Paid to Estate. The balance of an unpaid weekly scheduled award shall, upon the death of the employee, be paid to the estate of the employee.

XIV. Rulemaking Required. In order to reduce litigation and establish more certainty and uniformity in the rating of permanent impairment, the commissioner shall adopt rules, under RSA 541-A, incorporating by reference the 5th edition of the American Medical Association's ""Guides to the Evaluation of Permanent Impairment'' to determine the degree of permanent impairment and on which to base awards under this chapter.

507:7-d Comparative Fault. – Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff's legal

representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant, but the damages awarded shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict. The burden of proof as to the existence or amount of fault attributable to a party shall rest upon the party making such allegation.

xxv

RSA 507:7-e Apportionment of Damages. – I. In all actions, the court shall:

(a) Instruct the jury to determine, or if there is no jury shall find, the amount of damages to be awarded to each claimant and against each defendant in accordance with the proportionate fault of each of the parties; and

(b) Enter judgment against each party liable on the basis of the rules of joint and several liability, except that if any party shall be less than 50 percent at fault, then that party's liability shall be several and not joint and he shall be liable only for the damages attributable to him.

(c) RSA 507:7-e, I(b) notwithstanding, in all cases where parties are found to have knowingly pursued or taken active part in a common plan or design resulting in the harm, grant judgment against all such parties on the basis of the rules of joint and several liability.

II. In all actions, the damages attributable to each party shall be determined by general verdict, unless the parties agree otherwise, or due to the presence of multiple parties or complex issues the court finds the use of special questions necessary to the determination. In any event, the questions submitted to the jury shall be clear, concise, and as few in number as practicable, and shall not prejudice the rights of any party to a fair trial.

III. For purposes of contribution under RSA 507:7-f and RSA 507:7-g, the court shall also determine each defendant's proportionate share of the obligation to each claimant in accordance with the verdict and subject to any reduction under RSA 507:7-i. Upon motion filed not later than 60 days after final judgment is entered, the court shall determine whether all or part of a defendant's proportionate share of the obligation is uncollectible from that defendant and shall reallocate any uncollectible amount among the other defendants according to their proportionate shares. The party whose liability is reallocated is nonetheless subject to contribution and to any continuing liability to the claimant on the judgment.

IV. Nothing contained in this section shall be construed to modify or limit the duties, responsibilities, or liabilities of any party for personal injury or property damage arising from pollutant contamination, containment, cleanup, removal or restoration as established under state public health or environmental statutes including, but not limited to, RSA 146-A, RSA 147-A and RSA 147-B. RSA 507:7-f Contribution Among Tortfeasors. –

I. Except as provided in paragraph II, a right of contribution exists between or among 2 or more persons who are jointly and severally liable upon the same indivisible claim, or otherwise liable for the same injury, death or harm, whether or not judgment has been recovered against all or any of them. Except as provided in RSA 507:7-g, I and IV, the right of contribution may be enforced only by a separate action brought for that purpose. The basis for contribution is each person's share of the obligation, including the proportionate share of the claimant at fault as determined in accordance with the provisions of RSA 507:7-e. No right of contribution exists against a person who is immune to the claim which would otherwise give rise to a right of contribution. No right of contribution exists against the claimant at fault.

II. Contribution is not available to a person who enters into a settlement with a claimant unless the settlement extinguishes the liability of the person from whom contribution is sought, and then only to the extent that the amount paid in settlement was reasonable.

i

THE STATE OF NEW HAMPSHIRE SUPREME COURT

No: 2010-0157

ALFRED OCASIO

v.

FEDERAL EXPRESS CORPORATION

_______________________________________________

APPEAL FROM DECISION ON THE MERITS BY THE HILLSBOROUGH COUNTY SUPERIOR COURT (SOUTHERN DISTRICT) PURSUANT TO RULE 7

_______________________________________________

APPENDIX TO BRIEF OF APPELLANT ALFRED OCASIO

_______________________________________________ Peter G. Webb, Esquire (Bar No. 2676) John V. Dwyer, Jr., Esquire (Bar No. 713) 111 Concord Street, PO Box 488 Nashua, New Hampshire 03061 (603) 882-5157

1

V. STATEMENT OF THE CASE

This is the appeal of a jury verdict in a matter tried before the Hillsborough County

Superior Court (Southern District) (J. Barry, Justice) from 10/6/09 to 10/8/09.

The Plaintiff was injured at work. He initially brought suit against a number of third

party defendants: Adam M. Thompson, Federal Express Corporation (hereinafter referred to as

“FedEx”), FedEx Corporation Services, Inc., FedEx Freight Systems, Inc., FedEx Ground

Package System, Inc., FedEx Trade Networks Transport & Brokerage, Inc., Southern

Fabricators, Inc., and CH- Nashua, LLC (Appendix, p. 1 to 11).

Ultimately, when the matter went to trial, the case proceeded against only one defendant:

FedEx. The Plaintiff’s claims against FedEx were based on its respondeat superior liability for

the negligence of its truck driver, Adam M. Thompson, and on FedEx’s own negligence in its

training of its truck driver.

The basic issues of law involved in this appeal were first raised by pretrial motion:

Plaintiff’s Motion in Limine regarding Apportionment of Fault to Employer (Appendix, p. 12 to

17) and Objection thereto (Appendix, p. 18 to 22). The issues so raised were decided by

10/16/06 Order of Justice Bernard J. Hampsey, Jr. (Appendix, p. 23 to 37) after in-chambers

argument for which there is no transcript.

These issues of law were addressed further in subsequent pretrial filings: Plaintiff’s

Memo of Law in Support of the Conclusion that Fault may not be Apportioned to Mr. Ocasio’s

Employer, the United States Postal Service (Appendix, p. 38 to 45) and Defendant’s Response

to Plaintiff’s Memorandum of Law in Support of the Conclusion that Fault may not be

Apportioned to Mr. Ocasio’s Employer, the United States Postal Service (Appendix, p. 46 to

2

49). Again, these issues were ruled on by 2/21/07 Order of Justice Bernard J. Hampsey, Jr.

(Appendix, p. 50 to 56) on the basis of in-chambers conference for which there is no transcript.

The matter went to trial and a verdict was issued by the jury on 10/9/09 (Appendix, p. 57

to 58).

Post-verdict, the Plaintiff filed a Motion to Modify, Set Aside Verdict or for New Trial

(Appendix, p. 59 to 65), to which the Defendant objected (Appendix, p. 66 to 68). Defendant

filed a Motion for Entry of Judgment for the Defendant (Appendix, p. 69 to 72), to which the

Plaintiff objected (Appendix, p. 73 to 75), and to which the Defendant responded (Appendix, p.

76 to 79).

After argument on the post-trial Motions (Transcript of Post-Trial Motions, pages 1

though 26), Judge Barry denied the Motion to Set Aside, etc., and granted FedEx’s Motion for

Entry of Judgment for the Defendant (Appendix, p. 80 to 83)

The Plaintiff appealed.

3

VI. STATEMENT OF FACTS Alfred Ocasio, the Plaintiff, was 42 years old on the day he was injured, 2/17/02. On

12/29/01, Mr. Ocasio, an ex-Marine, active athlete, high school graduate, and father of two

young children had been hired by the United States Postal Service (USPS) as a “mail handler” to

work at a USPS mail sorting facility in Nashua, New Hampshire (Trial transcript, page 21).

In 2001, FedEx and USPS had devised and agreed upon a joint plan to work together to

move mail. Modifications were made to the USPS Nashua facility for that purpose (Trial

transcript, pages 23 and 181 to 182). Federal Express tractor trailer trucks, driven by Federal

Express drivers, hauled mail in large FedEx containers (“cans”) weighing 3,000 to 4,000 pounds

to the loading dock at the USPS facility for unloading by USPS employees. The FedEx tractor

trailers had rollers on their floor which were raised by the FedEx driver after he had backed up

against the USPS loading dock, parked and chocked the back wheels of the tractor trailer (Trial

transcript, page 182, lines 12 to 22 and page 198 to 199; 202).

The USPS loading dock surface and the floor of the facility had ball bearings fixed in

place on the floor surface. The USPS workers would remove the cans by walking into the

parked FedEx tractor trailer backed up to the loading dock and manually pulling on straps

hanging from the cans to roll the cans on their steel plate bottoms out from the trailer on to the

loading dock and across the floor into the USPS facility for sorting (Trial transcript, page 23 to

32). If the trailer was not parked squarely against the dock, a dangerous gap would exist between

the end of the trailer and the loading dock (Trial transcript, page 196 to 197).

On 2/17/02, at about 8:00 p.m., Mr. Ocasio and other USPS mail handlers were called to

come to the FedEx loading docks to unload cans from several FedEx tractor trailers which were

pulling in to at the facility (Trial transcript, pages 35 to 36). Unknown to Mr. Ocasio, one of

4

the FedEx trailers was not parked squarely by the FedEx driver against the face of the USPS

loading dock (Trial transcript, page 40, line 22 and page 202, lines 1 to 2). As a result, there

was an open space between one side of the edge of the dock and one side of the edge of the

trailer (Trial transcript, page 40, lines 19 to 20 and page 246, line 15 to page 247, line 12;

page 267, lines 9 to 13).

The outside loading dock door and the truck door were already open and one or more

cans had been removed from the FedEx trailer when Mr. Ocasio and a co-employee came to pull

cans from the FedEx trailer into the facility. While pulling out their second can, Mr. Ocasio

stepped with his right foot into the space he had not noticed on one side between the trailer edge

and the loading dock. His right leg dropped into the hole deep enough to bring his other knee to

his chin. The rolling 3,700 pound can with the steel plate bottom kept rolling. Before Mr.

Ocasio could pull his leg out of the hole, his leg was guillotined. Both bones of Mr. Ocasio’s

lower right leg were shattered (Trial transcript, pages 28 to 41).

Mr. Ocasio’s leg was saved after reconstructive surgery and months of physical therapy,

but it will be of limited use. The jagged bone fragments had done permanent damage to muscle

and nerve when they chewed through and stuck outside Mr. Ocasio’s leg. Today, he cannot

stand or walk for long, he cannot lift and carry heavy things, he cannot run. He has lower leg

pain and swelling to one degree or another every day (Trial transcript, pages 57 to 60). Aside

from the enormous effect on his non-working life, his physical restrictions permanently limit Mr.

Ocasio to sedentary employment. Because of his physical restrictions, Mr. Ocasio was let go by

the USPS (Trial transcript, page 53, line 21 to page 55, line 4). Mr. Ocasio’s past lost wages,

loss of future earning capacity, and lost fringe benefits were valued at $1,019,000.00 (Trial

transcript, page 139, line 19 to page 141, line 7).

5

At trial, the jury awarded Mr. Ocasio a verdict of $1,445,700.00 and concluded that his

comparative negligence was 6%. The jury, after instruction by the Court, found his employer,

the USPS, 90% at fault and FedEx 4% at fault (Appendix, p. 57 to 58), essentially for the same

negligent act: failure to observe the gap created by the truck driver.

Post verdict, the Trial Court awarded judgment to the defendant (Appendix, p. 80 to 83).

6

VII. SUMMARY OF THE ARGUMENT

Beginning with Nilsson v. Bierman, 150 N.H. 393 (2003) and continuing with

DeBenedetto v. CLD, 153 N.H. 793 (2006), this Court wrestled with the imprecise language

found in New Hampshire RSA 507:7. This case presents a different and perhaps more difficult

challenge – the reconciliation of two legislative enactments, one with over 100 years of history,

as well as legal and constitutional precedent, and the other of relatively recent vintage. This

Court should not permit the imprecise language that New Hampshire RSA 507:7-e to repeal,

sub-silentio, the long-held rights held by workers, in this case a Federal worker, to bring

litigation against a negligent third-party.

The evidence presented in this case is instructive of the extreme burden placed on injured

workers by the application of RSA 507:7-e. The defendant was allowed to raise, by little more

than inference, the alleged negligence of a Federal Employer who had no interest in participating

in the case or defending itself. This was not a case involving expert testimony by the defendant.

The evidence, at best, was that a single postal employee was in the area at some time after the

truck had parked. In effect, the jury found that three people failed to observe the fact that the

defendant’s employee had not properly backed up to the loading dock. The driver who

performed the negligent act and failed to observe was found 4% at fault, the plaintiff was found

6% at fault, and the party who never appeared in the Courtroom was found 90% at fault. These

widely divergent percentages are instructive on the fundamental challenge New Hampshire RSA

507:7-e places on a worker’s rights, which are constitutionally based, to a fair trial against

negligent third-parties.

Mr. Ocasio was injured in the course of work activity so his rights were limited under

worker’s compensation law. That law negates employer negligence for employee injuries. That

7

law recognizes and does not impair in any way his right to a third party action against a non-

employer third party. However, Mr. Ocasio was deprived of that right reserved to him under

worker’s compensation law because the Court incorrectly extended the application of RSA

507:7-e, Apportionment of Damages, as interpreted by this Court in DeBenedetto v. CLD, 153

N.H. 793 (2006), to permit the jury to consider the negligence of Mr. Ocasio’s employer. Doing

so represents a fundamental abridgment of the rights of New Hampshire workers. Both the

federal and state worker’s compensation law abrogate employer negligence relative to worker

injuries. Neither provides that employer negligence is preserved as a defense against an injured

worker’s claim.

The extension of the DeBenedetto, id., holding to allow consideration of employer fault

in an injured worker’s third party action is contrary to the authority upon which that opinion was

predicated. That authority repeatedly relied upon by this Court supports exempting employers in

such claims from the apportionment of fault. That authority reasons that it is fundamentally

unfair to obligate the injured worker to reimburse the employer for worker’s compensation

benefits out of a recovery reduced by the causal negligence of the employer. Treatise authority

repeatedly relied upon by this Court presently indicates that the jurisdictions are equally split on

this issue, but it would appear that a slim majority of the jurisdictions presently exempt employer

fault for worker injuries from damage allocation in third party actions.

By virtue of the exclusivity provisions in worker’s compensation law, causal negligence

of an employer is statutorily eliminated with respect to the workplace injury of an employee.

The employer immunity is not lost when the injured employee brings a third party action, an

action recognized under worker’s compensation law. Because employer fault cannot exist in

relation to that employee injury, a third party defendant cannot claim employer negligence in

8

defense, without violating the concept of employer immunity, a principle which is fundamental

to the worker’s compensation “bargain.” In fact, this Court has held that a third party may not

seek indemnity against an employer, based on the same fundamental principles.

Due process prohibits the unfair deprivation of property rights such as the right to recover

for personal injury. Although worker’s compensation law compels the injured employee to

waive the right to recover for personal injury caused by the employer, the statutory scheme has

nevertheless long been deemed an acceptable balance of benefit and burden for the worker.

However, should that balance be disturbed sufficient to change it and to render the further

infringement of the worker’s rights unfair, Due Process has been violated.

In Mr. Ocasio’s case, modifying the injured worker’s established rights by permitting

employer fault to be used in defense against the injured worker eliminated his right to a third

party recovery. That additional infringement of the worker’s rights represented a significant and

unfair shift in the traditional worker’s compensation “balance.” Doing so violated his right to

Due Process.

Furthermore, this new compromise of worker’s rights was accomplished by an unfair

adjudicatory process whereby the employer, who cannot be a party to the action, could not be

heard in defense of the claims of its negligence. The manner in which this further infringement

of Mr. Ocasio’s common law rights was adjudicated compounded the violation of Mr. Ocasio’s

Due Process rights.

Injured workers are a distinct class of individuals who have been deprived of their

common law right to recover from an employer whose negligence has caused them injury. The

allocation of damages statute, when applied to employers in the third party actions brought by

injured employees such as Mr. Ocasio, effects a radical abridgement of the rights of those injured

9

workers. Assuming for the purposes of argument that this statute serves a legitimate legislative

objective, the restrictions it imposes on the private rights of injured workers is profound and

unreasonable. As such, the application of RSA 507:7-e to Mr. Ocasio’s employer violated Mr.

Ocasio’s Equal Protection rights under the New Hampshire Constitution.

An injured worker’s right to remedy under the New Hampshire Constitution has been

deemed to be permissibly restricted in the balance of benefits and burdens under the worker’s

compensation statute. However, if the fairness of that balance is disturbed by a new

infringement of the worker’s rights, it would be a violation of the worker’s right to remedy. It is

obvious from Mr. Ocasio’s case that applying the apportionment of damages statute to employers

in third party claims arising out of work injuries suddenly and impermissibly increased the

burden side of the quid pro quo balance for injured workers. Mr. Ocasio’s right to remedy was

accordingly violated as a result of the effect of RSA 507:7-e in conjunction with his rights under

worker’s compensation law.

Mr. Ocasio was a federal employee at the time of his injury. His rights, and the rights of

his employer, were governed by federal statute. That statute negates legal fault on the part of the

employer, recognizes the rights of federal employees to prosecute third party actions and

safeguards the federal government’s right to reimbursement out of third party recoveries for

worker’s compensation benefits it paid its injured employees. The Supremacy Clause prohibits

the impairment of those federal rights by a state statute which recognizes employer fault, impairs

the recovery of the injured federal employee and compromises the subrogation rights of the

federal government. On this basis, it was error to assign fault under the New Hampshire statute

to Mr. Ocasio’s federal employer.

10

Even though Mr. Ocasio’s comparative negligence was only 6%, the Trial Court awarded

judgment for the defendant. That outrageous and inequitable outcome is the result of an

erroneous interpretation of how the allocation of damages statute is to applied and of the manner

in which our Comparative Fault statute, RSA 507:7-d, and our Apportionment of Damages

Statute, RSA 507:7-e, are to work together. Mr. Ocasio’s negligence is to be compared to the

aggregate negligence of all parties to whom damages were apportioned. To rule otherwise

would be inconsistent with the concept of comparative fault and would cause these two statutes

to yield an absurd result as occurred in the Mr. Ocasio’s case.

Mr. Ocasio’s case was tried on the basis of fundamental errors of law regarding the

apportionment of fault under RSA 507:7-e, Apportionment of Damages, and the corresponding

application of RSA 507:7-d, Comparative Fault. The evidence admitted, the arguments made,

and instructions given regarding fault rendered the jury’s deliberations on and conclusions

regarding fault fundamentally flawed. The verdict regarding fault, therefore, must be set aside.

The issue of damages, having been properly tried, is not to be again submitted to the jury. The

matter should be remanded for a retrial on fault only, without evidence regarding, argument on,

or instructions for the assignment of fault to Mr. Ocasio’s employer, the USPS.

11

VIII. ARGUMENT

The application of RSA 507:7-e, Apportionment of Damages, to Mr. Ocasio’s employer in his third party action effects a new and fundamental change in the rights of injured workers.

Worker’s compensation law is a legislative reworking of the common law rights and

duties of employers and injured workers.

“Workmen’s compensation acts have been adopted by all of the nations of western Europe and by a majority of the American states, including all those that have any considerable industrial development. These statutes have been enacted in response to public sentiments and beliefs, widely prevalent, that the burdens, delays, inadequate relief and unequal operation of the common-law remedies as applied to industrial accidents render them unsuited to modern conditions.” Mulhall v. Co., 80 N.H. 194, 196 (1921). “While the statutes that have been enacted in response to this conviction are radical in that they create a liability regardless of fault, and in that they abolish or materially modify the long-established doctrines of contributory negligence, of assumption of risk, and of negligence of a fellow-servant, they are highly remedial in that they offer to the employee as a substitute for the common-law action, a certain ensure remedy applicable to all cases of injury not due to his willful misconduct. Nor are they burdensome to the employer since his present liability is limited to a fractional part of the loss of earnings of the employee for a limited period and the ultimate burden is transferred to those who enjoy the product of the industry. The statute being remedial is to be construed liberally in order to ‘fully and adequately effectuate the purpose of its enactment.’” Id., page 199 (citations omitted).

This alternate system of workplace liability has governed the New Hampshire workplace since

1911 and the federal workplace since 1916.

One of the primary objectives of the state and federal workers’ compensation statutes is

to prevent the injured worker and his or her family from being left to fend for themselves or

becoming dependent on public assistance. Id., pages 198 and 199 (citations omitted); Johansen

v. U.S. 434 U.S. 427, 439; 782 S. Ct. 849, 857; 96 L. Ed. 1051, 1060 (1952).

12

Both state and federal law provide that the worker’s compensation statute is to be

construed liberally in a manner that favors the injured worker. Petition of Abbott, 139 N.H. 412,

416 (1995); Desousa v. Panama Canal, 202 F. Supp. 22, 24-25 (1962).

Federal worker’s compensation law, the Federal Employee’s Compensation Act, 5

U.S.C.S. §8101 et seq. (which governed Mr. Ocasio), and New Hampshire’s Worker’s

Compensation Law, RSA 281-A, et seq. are very similar statutory schemes:

A. The employer has no liability for injuries it negligently causes employees. 5 U.S.C.S. 8116 (c), RSA 281-A:8.

B. The time frame for the worker to give notice of an injury is shortened: 30

days – federal, two years – state. 5 U.S.C.S. §8119, RSA 281-A:19. C. An injured worker is entitled to workers’ compensation benefits if an

injury arises out of work activity. 5 U.S.C.S. §8102, RSA 281-A:2, XI and XIII.

D The injured worker is entitled to four basic benefits:

1. Payment of reasonable and related medical bills, 5 U.S.C.S. §8103, and RSA 281-A:23.

2. Weekly disability benefits for:

a. total work disability (66⅔% of average weekly wage – federal; 60% average weekly wage – NH), 5 U.S.C.S. §8105, RSA 281-A:28;

b. partial work disability (66⅔% of wage reduction – federal,

60% of wage reduction for a maximum of 5 years – NH), 5 U.S.C.S. §8106, RSA 281-A:31;

3. Vocational rehabilitation services, 5 U.S.C.S. §8104, RSA 281-A:25;

4. A modest permanent impairment award for loss of normal function of certain body parts, 5 U.S.C.S. §8107, RSA 281-A:32;

E. The worker has a right to a third party action and must reimburse the

employer for workers’ compensation benefits received in the event that the

13

worker receives a recovery from a liable third party. 5 U.S.C.S. §8131 and §8132, RSA 281-A:13.

Under these statutory schemes, the injured worker is deprived of his common law right to

recover for injuries negligently caused by the employer and fellow employees. The three year

statute of limitations is not available. The right to trial by jury is lost. There is little to no

discovery process. The injured employee cannot recover all of the past wages lost. The injured

worker may not recover all of the future wages lost over the probable work life as a result of the

work injury. The injured worker cannot recover compensation for physical pain the injury has

caused. He or she has no right to recover for the consequential emotional suffering such as fears,

anxiety, humiliation, despair, or other forms of mental or emotional distress. The injured worker

has no right to recover for the inability to carry on or enjoy life in a manner had the injury not

occurred. New Hampshire Jury Instructions, Section 9.6. Loss of consortium claims of spouse

and child are barred. RSA 281- A: 8,II.

The worker’s compensation balance of benefits and burdens has not been entirely static

during the century it has been in place. There have been adjustments with legislative

modifications and judicial interpretation. Salafia, New Hampshire Worker’s Compensation

Manual, Section 1.02 (2010).

However, in Mr. Ocasio’s case, the Trial Court’s novel application of RSA 507:7-e,

Apportionment of Damages, to employer negligence in a third party action brought by this

injured worker represents an abrupt and substantial change in the longstanding rights of injured

workers in New Hampshire. If employer negligence can now be used as a defense by defendants

in third party actions brought by the victims of workplace injury, the formerly abrogated concept

of employer fault for employee injury has suddenly been resurrected and made a back door

14

reappearance to undermine, or, in Mr. Ocasio’s case, to eliminate the injured worker’s

established right to a third party action.

New Hampshire law provides that such third party actions:

“are permitted based on the concept that the ultimate loss from a wrongdoing should fall upon the wrongdoer and that the injured worker should be given an opportunity in such cases to obtain fair pecuniary compensation.” Bilodeau v. Oliver Stores, Inc. 116 N.H. 83, 87 (1976).

Nowhere in the federal or state worker’s compensation statute is it provided that, while

the employer’s negligence is abolished as a cause of action for the injured worker, it is preserved

as a defense against the injured worker’s claim in a third party action.

Nowhere in RSA 507:7-e, Apportionment of Damages, is there anything to indicate an

inclination by the legislature to “openly and forthrightly” disturb the worker’s compensation

scheme. Douglas v. Robbins & Miers, Inc., 505 F. Supp. 765, 769 (1980).

The authority on which this Court has repeatedly relied in its evolving

interpretation of the meaning of RSA 507:7-e, Apportionment of Damages, exempts employers in third party actions arising out of work injuries from fault allocation.

In Nilsson v. Bierman, 150 N.H. 393 (2003), this Honorable Court decided that damage

apportionment under RSA 507:7-e, in accordance with a 1986 legislative initiative, would

include allocation to settling tortfeasors, and noted:

“Our construction is also in accord with decisions from other jurisdictions. Most jurisdictions permit juries to allocate fault among settling and non-settling tortfeasors. See Carroll v. Whitney, 29 S.W. 3d. 14, 17 N. n5 (Tenn 2000) (noting that a minority of jurisdictions permit apportionment of fault only to parties before Court).” Nilsson v. Bierman, page 396.

In the referenced opinion of Carroll v. Whitney, supra, the Tennessee court specifically

held that employers in third party actions arising out of work injuries were an exception to the

15

principle of apportioning fault to all parties. In a word, the Tennessee Court explained why:

“fairness.” Id., page 19. The court reasoned that it would be unacceptable to undermine the

worker’s third party recovery by the employer’s negligence, while at the same time obligating

the worker to reimburse the employer for workers’ compensation benefits.

“An example illustrates the basic unfairness that would result from application of the standard we adopt today to cases brought against third parties by employees injured on the job. An employee who is injured by a piece of equipment may have a cause of action from products liability against the machine’s manufacturer. However, the manufacturer could assert at trial that the employer altered the machine, and that this alteration caused the employee’s injury. A jury, acting on this use of the non-party defense, could then allocate fault between the manufacturer and the immune employer, thereby reducing the employee’s recovery. Subsequently, the employer could exercise its right of subrogation with regard to the damages assessed against the manufacturer and recovered by the employee. Essentially then, the employer’s right of subrogation would defeat the employee’s statutory right to seek damages from other tortfeasors. We are unwilling to extend our holding this far.” Id., page 19.

It should be noted incidentally that, in Mr. Ocasio’s case, the federal worker’s

compensation statute regarding the reimbursement of the worker’s compensation lien out of third

party recoveries, 5 U.S.C.S. §8132, does not provide for the “division of expenses and costs of

action, including attorney’s fees” between the employer and employee, “as justice may require,”

as provided for under New Hampshire worker’s compensation statute. RSA 281-A:13, IV.

The Carroll opinion was again invoked in the development of the apportionment of

damages doctrine in this Court’s later opinion of DeBenedetto v. CLD, 153 N.H. 793 (2006). In

DeBenedetto, apportionment of damages was extended to immune non-parties, and the Carroll

opinion was again relied upon in support of that holding.

“Apportionment to fault to non-parties is, moreover, recognized in many jurisdictions as being compatible with the doctrine of comparative fault. See Carroll v. Whitney, 29 S.W. 3d 14, 21, Tenn.

16

(2000). “[T]he policy considerations underlying the comparative fault doctrine would best be served by the jury’s consideration of the negligence of all participants to a particular incident which gives rise to a lawsuit. Estate of Hunter, 729 So. 2d at 1273; cf. Northland Ins. Co. v. Truckstops Corp. of America, 914 F. Supp. 216, 220 (N.D. Ill. 1995) (failure to include immune employers in apportionment process violates the main purpose of comparative fault by improperly subjecting defendants to liability in excess of their proportion of fault)” (emphasis added). DeBenedetto, page 800.

The DeBenedetto opinion did not involve apportionment to an employer in a work injury, so the

underlined language in the parenthetical section of above quote would appear to be dicta.

More significantly, however, a reading of the DeBenedetto opinion’s above referenced

Northland Ins. Co. v. Truckstops Corp. of America case, supra., reveals that the underlined

language in the above excerpt (providing that the employer shouldn’t be exempted) is from an

unpublished 1994 Tennessee opinion (Ridings v Ralph M. Parsons Co., 1994 Tenn.. App. LEXIS

177, No 02 A01-3906-CV-00128, 1994 WL 114598, (Tenn. App. Ct. Apr. 4, 1994)) Northland,

supra., page 220.

In the subsequent published opinion of Ridings v. Ralph M. Parsons, Co., 914 S.W. 2d 79

(1996), the Tennessee Supreme Court reversed the Court of Appeals and held that “the Plaintiff’s

right to recover on allegations of negligence and strict liability is determined without reference to

the employer’s conduct.” Id., page 84. The Carroll opinion, supra., which also held that

employers should be exempt from the apportionment of damages under comparative fault was a

2000 opinion from the Tennessee Court of Appeals.

The 1995 edition of Comparative Negligence Manual §14.9 (3d ed., Clark Boardman

Callaghan 1995) is also cited in both the Nilsson, supra, page 396 to 397, and DeBenedetto,

supra., page 800, opinions. In the “database updated March 2010” version of §14.9 of that text,

eight jurisdictions are noted as not supporting damage apportionment to the employer, and eight

17

which do. Tennessee, which according to the Carroll opinion, supra., exempts the employer, is

not noted.

Authority central to this Court’s evolution of the doctrine of apportionment fault

recognizes that the concept has its limits, specifically, that fault cannot in simple fairness be

allocated to employers as a defense in third party actions arising out of work injuries. To do so

would result in the recovery due injured workers from third party defendants being reduced by

employer negligence; yet, at the same time, the full workers’ compensation lien being paid out of

the very recovery which the employer’s fault reduced.

In any event, this elementary inequity pales in comparison to the damage which

apportioning fault to the employer so does to the established rights of injured workers under

workers’ compensation law.

The injured worker’s right to a third party action under federal law and state law is personal to the employee (or derivative therefrom). Because the concept of employer fault vis a vis an employee injury is abrogated by the worker’s compensation statute, there cannot be employer fault in a claim brought by an injured worker arising out of an injury at work.

The personal right of an injured worker to bring a third party action is expressly

provided for under the statutory schemes of both federal and New Hampshire workers’

compensation law. 5 U.S.C.S. 8131 (a), RSA 281-A:13 I.

That federal statute also specifically negates the concept of employer liability for

employees injured in the workplace.

“The liability of the United States or any instrumentality thereof under this subchapter [5 U.S.C.S. §8101 et seq.] or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from

18

the United State or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by any administrative or judicial proceeding under a workman’s compensation statute or under the Federal tort liability statute.” 5 U.S.C.S. §8116(c).

Aside from any issue of preemption, employer fault cannot therefore exist as a matter of federal

law in the context of workplace injury suffered by a federal employee such as Mr. Ocasio. 5

U.S.C.S. §8116(c). Consistent with that abrogation of employer fault, federal law does not allow

indemnity suits by defendants in third party actions against the employer. Milai v. Tradewind

Industries, Inc., 556 F. Supp. 36 (1982, ED. Mich.).

Employer fault is similarly abrogated under New Hampshire Worker’s Compensation

Law.

“An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of the chapter and, on behalf of the employee or the employee’s personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise…” RSA 281-A:8.

New Hampshire authority accordingly holds that employer fault cannot exist in the employer’s

third party action.

“The third party action, whether brought by the employee or the employer, is the action of the employee claiming that his injuries resulted from that party’s negligence. The sole issue is whether the third party’s negligence was a cause of his injuries. The employer cannot be joined or sued by the third party as a tort-feasor as he cannot be liable to the employee and tort.” Bilodeau v. Oliver Stores, Inc., 116 N.H. 83, 88 (1976).

In light of that negation of employer fault, this Court has also ruled that there cannot be employer

liability for contribution to a third party defendant by virtue of the employer’s immunity under

the New Hampshire worker’s compensation statute. William Field Co. v. Nuroco, 115 N.H. 632

(1975). In effect, the defendant asks this Court to overrule that precedent, albeit silently, and

19

allow it to do indirectly what prior holdings of this Court say it cannot do directly. This principle

presently exists under the current contribution statute. RSA 507:7-f, I.

In its consideration of New Hampshire law the First Circuit Court of Appeals has held

that:

“[i]n a third party action under New Hampshire law, whether brought by the employee or in his name by the employer, the negligence of the employer also is not relevant.” Del Rio v. Northern Blower Co., 574 F. 2d 23, 28 (1st Cir. 1978)

Employer negligence for employee injury was eliminated by workers’ compensation law.

Recognizing employer immunity cannot be selective. There either is employer fault or there is

no employer fault, whether used offensively or defensively. With the institution of the statutory

worker’s compensation scheme, a legislative initiative in which a bargain was long ago struck

between the rights of employees and employers for the purpose of the efficiencies of the

workplace, the concept of “employer fault” for federal and New Hampshire workplace injury

became a nullity. Employer fault cannot suddenly now exist a new defense available to a third

party without contravening worker’s compensation law in principle and word.

Applying the Apportionment of Damages statute, RSA 507:7-e, to Mr. Ocasio’s third party action impermissibly disturbed the quid pro quo of the worker’s compensation law which governed Mr. Ocasio’s employment. So doing, Mr. Ocasio’s Due Process rights under Part I, Article 15 of the New Hampshire Constitution were violated.

Under worker’s compensation law, New Hampshire and federal, the injured worker is

deprived of the right to seek common law compensation for injuries caused by the negligence of

the employer. Although Due Process prohibits a person’s property rights from being taken by

unfair government action (Bragg v. NH Director of Motor Vehicles, 141 N.H. 677 (1997)) and

the right to recover for personal injuries is an important substantive right (Carson v. Maurer, 120

20

N.H. 925 (1980)), for almost a century the worker’s compensation “great compromise” has been

deemed to have struck an acceptable balance of benefits and burdens for employers and

employees. Mulhall v. Co., 80 N.H. 194 (1921).

This Court has concluded that certain curtailments of injured worker’s rights under

worker’s compensation did disturb the statute’s “balance” sufficient to violate Due Process: e.g.,

barring loss of consortium claims (Young v. Prevue Products, 130 N.H. 80 (1987)); barring suits

against the worker’s compensation insurance carrier (Thone v. Liberty Mutual, 130 N.H. 702

(1988)); and barring suits against co-employees (Thompson v. Forest, 136 N.H. 215 (1992)). It

should be noted that the Court’s reasoning in these cases has repeatedly invoked the importance

of preserving, in the interest of the employer, employer immunity as integral to the worker’s

compensation scheme.

According to current case law, whether a new infringement of the rights of injured

workers through the application of RSA 507:7-e to an injured worker’s third party claim would

violate the worker’s Due Process rights is to be determined on the basis of an analysis of the

fairness of the compensation scheme as a whole. Rooney v. Fireman’s Fund Ins. Company, 138

N.H. 637, 642 (1994), quoting Thompson v. Forest, 136 N.H. 215, 219 (1992).

As Mr. Ocasio’s case makes clear, applying the apportionment of damages statute to

employers causes an enormous change in what worker’s rights have been for a long time in New

Hampshire. If this is New Hampshire law, the burden side of the bargain made by the New

Hampshire worker has suddenly been shifted. In Mr. Ocasio’s case, the application of RSA

507:7-e eliminated his ability to recover in a third party action from non-employer defendants.

We will never know what the deliberations of Mr. Ocasio’s jury would have been had

they never heard or seen evidence, argument, or instruction to direct them to consider negligence

21

on the part of Mr. Ocasio’s employer, that perennial whipping boy: the United States Postal

Service. If there had only been one true defendant and no evidence of any fault on the part of

anyone else other than Mr. Ocasio, the jury may well have continued to find that Mr. Ocasio’s

fault was a mere 6% and assign the remaining fault to FedEx as a substantial factor in bringing

about the harm which would not have occurred without that conduct. New Hampshire Civil Jury

Instructions, §6.1.

It is reasonable to presume that, in the absence of employer fault, Mr. Ocasio may well

have recovered some or all of his $1,445,700.00 verdict for his severe work injury (less the

mandatory reimbursement of his worker’s compensation lien to prevent double recovery).

However, with the application of RSA 507:7-e, in Mr. Ocasio’s third party action he recovers

nothing. Such a new and profound revision of the longstanding rights of injured workers in New

Hampshire must inevitably be seen to have undone the balance of rights and duties upon which

worker’s compensation law has heretofore been predicated. The “fairness of the compensation

scheme as a whole” has been unacceptably undermined and the effect renders the allocation of

RSA 507:7-e a violation of Mr. Ocasio’s Due Process rights by unfairly abridging his right to

recover for personal injury.

This violation of Mr. Ocasio’s Due Process rights is heightened by the means in which

RSA 507:7-e was applied in his case, and would be applied in the cases of other injured workers.

Mr. Ocasio had no right to a claim against his employer, USPS, so the employer entity could not

be joined as a party. Everitt v. General Electric Company, 156 N.H. 202 (2007). As a result,

FedEx’s defense of employer’s negligence was adjudicated in a manner akin to shooting fish in a

barrel: the employer could not be present, could not be represented, could not be heard, could

not cross-examine, could not offer evidence, could not defend itself. The adjudicatory process

22

by which Mr. Ocasio’s rights were abridged was not in keeping with standards of fundamental

fairness. Saviano v. Director, 151 N.H. 315 (2004).

Applying RSA 507:7-e, Apportionment of Damages, to serve as a defense against claims brought by injured workers disturbs the quid pro quo balance of benefits and burdens struck under worker’s compensation law. This infringement of the right to recover for personal injuries is unreasonable. Mr. Ocasio’s right to Equal Protection under Part I, Articles 2 and 12 of the New Hampshire Constitution was thereby violated.

An injured worker is deprived of the common law right to recover for injuries suffered as

a result of the employer’s negligence. RSA 507:7-e, when applied to injured workers, causes

this distinct group of injury victims to be treated differently from other injury victims. It does so

by having the effect of unreasonably interfering with, and, in Mr. Ocasio’s case, eliminating, the

already restricted limited right to recover for personal injuries.

“Under our interpretation of the equal protection provisions of the NH Const. pt. I, Arts. 2, 12, a statute whose classifications interferes with a person’s right to recover for personal injuries must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. Brannigan v. Usitalo, 134 N.H. 50, 55, 587 A. 2d, 1232, 1234 (1991); Carson v. Maurer, 120 N.H. 925, 932, 424 A. 2d, 825, 831 (1980). In such cases, the legislative objective is presumed to be proper, Carson, 120 N.H. at 933, 424 A. 2d at 831, leaving two questions before the Court: (1) whether the statute has a fair and substantial relation to the legitimate legislative objective; and (2) whether it imposes unreasonable restrictions on private rights. Id., at 933, 424 A 2d. at 832.” Rooney v. Fireman’s Fund Ins. Co., 138 N.H. 637, 640 (1994).

For the purposes of this discussion, it is assumed that the statute at issue, RSA 507:7-e,

has a fair and substantial relation to a legitimate legislative objective of individualizing tortfeasor

liability at the expense of compensating victims of negligence. Accordingly, the equal protection

analysis in Mr. Ocasio’s case is a question of whether the statute, which causes injured workers

23

disparate infringement, “imposes unreasonable restrictions on private rights.” Rooney, id., at

640.

This additional restriction on the already compromised right to recover of this class of

victims is not reasonable. It violates the original balance of employee rights and burdens under

worker’s compensation law. This additional abridgement of the rights of injured workers has no

basis in worker’s compensation law. The injured worker remains obligated to reimburse the

employer for worker’s compensation benefits paid, even if the worker’s recovery is reduced by

the negligence of the employer. Also, as addressed above, this further restriction on (or

extinguishment of) the private rights of injured workers is effectuated by a suspect adjudicatory

process in which the “accused” must remain mute to the claims of fault made against it.

In the context of the abbreviated rights of injured workers and the quid pro quo balance

of benefits and burdens upon which worker’s compensation law has been based, the restriction of

private rights resulting from RSA 507:7-e is “so serious it outweighs the benefits sought to be

conferred upon the general public.” Gould v. Concord Hospital, 126 N.H. 405, 409 (1985). In

the context of work injuries, the use of RSA 507:7-e to permit third party defendants to use

employer negligence as a defense violated Mr. Ocasio’s right to Equal Protection under the New

Hampshire Constitution.

The allocation of damages to the employer in this third party action arising out of a work injury violated Mr. Ocasio’s Right to Remedy under Part I, Article 14 of the New Hampshire Constitution.

The right to recover for injuries is an important substantive right under our state

constitution. Carson v. Maurer, 120 N.H. 925, 931-932 (1980). In consideration of the balance

of benefits and burdens struck under worker’s compensation law, this Court has concluded that

24

those statutes, in and of themselves, do not impermissibly infringe upon injured worker’s Right

to Remedy as guaranteed in the New Hampshire Constitution.

“Worker’s compensation schemes satisfy the guaranteed remedy provision of the New Hampshire Constitution if they provide a quid pro quo or an adequate substitute for statutory or common law rights extinguished under the statutes: ‘in recognition of the burdens, delays, inadequate relief and unequal operation of law inherent in common law remedies, the Workers’ Compensation Law was designed to substitute for unsatisfactory common law remedies in tort a liability without fault with limited compensation capable of ready and early determination.’” Thompson v. Forest, 136 N.H. 215, 217, 614 A. 2d. 1064, 1066 (1992) (quotation omitted).

Further, the legislature does not necessarily have to increase worker’s compensation benefits

whenever it takes away statutory or common law rights so long as the general fairness of the

quid pro quo of the worker’s compensation law is maintained. Petition of Abbott, 139 N.H. 412,

416-417 (1995).

However, as Mr. Ocasio’s case illustrates, the alteration of the rights of injured workers

created by the application of RSA 507:7-e creates a fresh and dramatic revision in the rights of

injured workers under worker’s compensation law. It was always known that, under the

worker’s compensation scheme, injured workers waived their right to recover for injuries caused

by the employer’s negligence. It had never previously been the case, however, that employer

negligence could nevertheless be used defensively against the injured worker when the injured

worker sought recovery from a third party. The outcome of Mr. Ocasio’s case shows that this

development represents a sea change in the rights of injured workers. This change undoes the

general fairness of the quid pro quo upon which worker’s compensation law is based and in the

form in which it has long been thought to exist.

Giving rise to a new ability on the part of third parties to use the long-dead concept of

employer fault as a defensive weapon against injured workers dramatically and unfairly increases

25

the burden side of the quid pro quo balance for injured workers. The fairness of the quid pro quo

of the worker’s compensation statute is disturbed too fundamentally as a result. Accordingly, the

application of RSA 507:7-e to the employer in Mr. Ocasio’s third party action arising out of his

work injury violated Mr. Ocasio’s right to remedy under Part I, Article 14 of the New Hampshire

Constitution.

The Supremacy Clause of the United States Constitution, Article VI, Section 2,

prohibits the impairment by RSA 507:7-e of Mr. Ocasio’s right to a third party action and the federal government’s right to subrogation under the Federal Employees Compensation Act, 5 U.S.C.S. §8102, et seq.

The immunity of the federal employer under the Federal Employees Compensation Act, 5

U.S.C.S. §8116 (c), is clear, and, perhaps more extensive than the immunity afforded employers

under the language of the New Hampshire worker’s compensation law, RSA 281-A:8. The

federal statute provides that:

“[t]he liability of the United States or any instrumentality thereof under this subchapter [5 U.S.C.S. §81101, et seq.] or any extension thereof, with respect to the injury or death of an employee is exclusive and instead of all other liability” … (emphasis added). 5 U.S.C.S. §8116 (c).

The invocation of employer fault on the basis of a state statute would contradict the clear

employer immunity created in the above federal statute. Further, the federal statute recognizes

the right of federal workers to third party actions and the federal government’s right to be

reimbursed for worker’s compensation benefits paid out of any third party recovery. 5 U.S.C.S.

§8131 and 8132. The use of our state’s allocation of damages statute, RSA 507:7-e, to also

undermine such third party actions and the federal government’s lien would contradict federal

statute.

26

Whenever any conflict arises between enactments of the United States and a state, those

of the national government have supremacy. Robards v. Cotton Mill Associates, 677 A 2.d 540,

22 A.D.D. 1202 (Me. 1996). It was error, therefore, for the trial court to have applied RSA

507:7-e in contravention of Mr. Ocasio’s and the federal government’s rights under the Federal

Employees Compensation Act.

Given Mr. Ocasio’s comparative negligence of only 6%, it was error of law for the

Court to have awarded judgment for the defendant. The Trial Court reasoned that under RSA 507:7-d, Comparative Fault, the 90% employer

fault is to be ignored, that the only inquiry under the comparative fault statute was whether Mr.

Ocasio’s 6% fault exceeded FedEx’s 4% fault. Construing the statute to require the latter, the

Trial Court entered judgment for the defendant.

The impermissibility of allocating fault to the employer has been previously addressed.

Accordingly, the Trial Court’s use of those findings as the basis for awarding a defendant’s

verdict under RSA 507:7-d would be error. Moreover, this additional and final evisceration of

an injured worker’s right to a third party claim on the basis of the interaction between RSA

507:7-d, Comparative Negligence, and RSA 507:7-e, Apportionment of Damages, gives further

support to the conclusion that, for the reasons addressed previously, fault cannot be allocated to

the employer in such actions.

The “basic policy” of our comparative negligence statute “permits the Plaintiff partially

at fault in an accident resulting in his injury to be recompensed for the damages attributable to

the fault of another, as long as the Plaintiff’s negligence was not the primary cause of the

accident.” Hurley v. Public Service, 123 N.H. 750, 754 (1983). The concept was “to allocate

more equitably the responsibility for injuries due to negligent conduct on the part of parties on

27

both sides of a lawsuit.” Lavoie v. Hollinrack, 127 N.H. 764, 769 (1986). Under those

principles, judgment for the defendant could not be awarded where a plaintiff’s comparative

negligence is 6%. Again, in granting a defendant’s verdict, the Trial Court in Mr. Ocasio’s case

ignored the 90% fault assigned by the jury to the USPS and did not compare Mr. Ocasio’s 6%

comparative fault to the 94% aggregate fault of the other parties. Instead, Mr. Ocasio’s 6% fault

was only compared to FedEx’s 4% fault. The Trial Court’s reasoning for doing so appears to

hinge on the section of the comparative fault statute, RSA 507:7-d, which provides that

comparative negligence bars recovery in cases with multiple defendants where the plaintiff’s

negligence is greater than that of the defendants from whom “recovery is allowed.” The Court

reasoned that, because Mr. Ocasio was barred from recovering from the negligence of the USPS,

their comparative fault, despite its allocation, would not “allow for recovery.”

That quoted language of RSA 507:7-e is a vestige of our pre-1986 statutory law when

fault was not assignable to non-parties. Its meaning in its original context was that, for a right to

recover, the plaintiff’s negligence could not exceed the aggregate fault of the defendants.

The comparative negligence statute, with the allocation of damages statute which was

spun off from it in 1986, and the judicial interpretation thereof have evolved. Immune and

settled parties are now effectively treated under the allocation of damages statute as “defendants”

in that their fault is now specifically assignable to them. DeBenedetto v. CLD, 153 N.H. 793

(2006). Given that broader current view of “defendant” and “party” under RSA 507:7-e, the

meaning of the language carried forward from the precursor comparative negligence statute must

be interpreted commensurately.

The parties against whom “recovery is allowed” under a consistent interpretation of the

interplay of these two companion statutes would mean the parties against whom fault is

28

allocated. That would mean that Mr. Ocasio’s 6% fault is to be compared to the 94% fault of the

other parties. Judgment for the defendant on that basis could not follow.

Were the Trial Court’s erroneous reading of these two statutes to govern, defendants

would benefit from the fortuity of the presence of immune parties or, possibly, of parties which

had settled before trial. If the plaintiff’s “ability to recover” limits the fault comparison only to

the fault of such lesser non-immune defendants and the plaintiff, those “codefendants” who

would otherwise have real but a lesser liability relative to one of those other “nominal” immune

defendants would be arbitrarily relieved of any liability whatsoever.

Allowing lesser liable parties to be fortuitously shielded by the greater liability of other

nominal “codefendant” parties, so as to shirk all liability for their lesser causal negligence, even

though the aggregate liability far exceeds the plaintiff’s, represents an inequitable and absurd

result.

The Court’s interpretation of the comparative negligence statute is clearly unfair and

served to completely obviate Alfred Ocasio’s right to recover. In DeBenedetto, supra., the Court

did not have a occasion to reconcile the comparative fault statute, RSA 507:7-d, with the

apportionment of damages statute, RSA 507:7-e. In Mr. Ocasio’s case, those two statutes are

being interpreted in an inconsistent and contradictory manner. Because the apportionment of

damages statute is being applied to allocate fault to everyone and anyone, the Trial Court in Mr.

Ocasio’s case permitted the jury to allocate fault to his immune employer. Yet, in the Trial

Court’s reading of our comparative fault statute, it is comparing the fault assigned to the plaintiff

only to the fault assigned to FedEx, and not to the parties “on both sides of the lawsuit.” Lavoie,

supra., page 769. That incongruity has resulted in the Court granting judgment for the defendant

even though the plaintiff’s comparative fault was only 6%.

29

Under that reasoning, defendants such as FedEx get to have it both ways under these

conflicting statutes. FedEx is permitted to have an allocation of damages to people and entities

who are not parties to the lawsuit, and treat them as defendants for the purpose of allocation of

damages. At the same time, defendants such as FedEx get to take refuge behind a more literal

interpretation of the word “defendant” under the comparative fault statute to, in this case, escape

any liability whatsoever. Having elected to proceed under RSA 507:7-e, the defendant should be

stopped from then seeking application of 507:7-d.

These two statutes must not be interpreted to yield an absurd result which contravenes

fundamental fairness and plain meaning.

The Trial Court’s erroneous ruling that employer negligence was relevant to Mr.

Ocasio’s case requires that the verdict with respect to fault be set aside and that a new trial be ordered. The verdict regarding damages, however, need not be again submitted to the jury.

Evidence of and testimony regarding claimed negligence on the part of the employer was

submitted to the jury. It was mistake of law to do so. Further, the jury was instructed to assign

any negligence it might find to the employer. Again, it was error of law to do so. The jury’s

deliberations on the issue of causal negligence would have been irretrievably skewed and flawed

by the irrelevant evidence admitted, the argument of counsel, and the instructions on the

allocation of negligence such that the issue of fault must be retried. O’Neil v. Boston & M.R.R.,

73 N.H. 85 (1904).

The issue of damages, however, having been properly tried without error, is not to be

again submitted to the jury. Dow v. Latham, 80 N.H. 492 (1922).

30

IX. CONCLUSION

The subject verdict should be set aside and the matter should be remanded for retrial on

the issue of legal fault. In that retrial, any causal negligence of the employer is irrelevant, and

there should be no apportionment of damages to the employer under RSA 507:7-e. The issue of

damages, having been properly tried, should not be again submitted to the jury.

X. REQUEST FOR ORAL ARGUMENT

The Petitioner, Alfred Ocasio, requests oral argument before the full Court. Peter G.

Webb, Esquire or John V. Dwyer, Jr., Esquire will argue for the Petitioner. Fifteen (15) minutes

are requested.

31

Respectfully submitted, ALFRED OCASIO By his attorneys, Winer and Bennett, LLP Dated: By: ______________________________________ Peter G. Webb, Esquire (Bar No. 2676) 111 Concord Street, PO Box 488 Nashua, New Hampshire 03061 (603) 882-5157

XI. CERTIFICATE OF SERVICE

I certify that two copies of the foregoing Brief and Appendix have this day been sent first-class mail, postage prepaid, to David W. Johnston, Esquire, Desmarais, Ewing & Johnston, PLLC, 175 Canal Street, Manchester, NH 03101. Dated: Peter G. Webb, Esquire