Appeal of Malouin , 155 N.H. 545 ( 2007 )

GALWAY, J.,

dissenting. “We are the final arbiter of the meaning of the workers’ compensation statute, and the nature and extent of compensation to the injured employee is governed by the express statutory language and that which can be fairly implied therefrom.” Appeal of Woodmansee, 150 N.H. 63, 67 (2003) (emphasis added). In construing a statute, we ascribe the plain and ordinary meaning to words used, considering the statute as a whole and interpreting it consistent with its purpose. Appeal of Denton, 147 N.H. 259, 260 (2001). Any reasonable doubt in construing a workers’ compensation statute is resolved in favor of the injured employee. Appeal of Hypertherm, 152 N.H. 21, 24 (2005). In this jurisdiction, statutory words and phrases are interpreted according to their common and approved usage, unless the terms have a technical or otherwise peculiar meaning. Appeal of Town of Hampton Falls, 126 N.H. 805, 809 (1985); see also RSA 21:2 (2000). The compensation appeals board’s decision will not be overturned unless it is erroneous as a matter of law or the petitioner has demonstrated that the order is unjust or unreasonable. Appeal of Kraft Foods, 147 N.H. 572, 574 (2002).

RSA 281-A:2, XI provides, in relevant part:

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.

The majority concludes that portions of RSA 281-A-.2, XI are ambiguous, and that, even assuming the petitioner was participating in an athletic/recreational activity, he is entitled to workers’ compensation because his personal workouts were a condition of his employment. Because I disagree with both conclusions, I respectfully dissent.

First, the majority concludes that the phrase “athletic/recreational activities” is ambiguous. “Athletic/recreational activities,” when read in context, however, is not ambiguous. According to the majority, the phrase may be read as covering activities that are both athletic and recreational, to the exclusion of vocational athletic activities, or as covering activities that are athletic or recreational, which could include vocational athletic activities. The statute, however, includes in the definition of “injury” only those athletic/recreational activities in which the employee, based upon the employer’s instruction or policy, reasonably expects to participate because of his employment. It is immaterial whether the athletic/recreational activities in question are vocational in nature. What is relevant is whether the employee’s participation in the activity was related to his employment on account of his employer’s instruction or policy. Because the majority’s conclusion that RSA 281-A:2, XI is ambiguous relies upon the possibility that vocational athletic activities might be included, and because, under the unambiguous language of the statute, it is irrelevant whether the activities are vocational, I believe the majority incorrectly concludes that the phrase “athletic/recreational activities” is ambiguous.

Next, the majority concludes that the “savings clause” of RSA 281-A.2, XI appears to be ambiguous, but is not. We stated in Kraft Foods, however, that the requirement of RSA 281-A:2, XI, that participation in a particular activity be a “condition of employment” or be “required for promotion, increased compensation, or continued employment,” is a “clear and exacting statutory standard.” Kraft Foods, 147 N.H. at 574. The majority’s opinion disregards the conclusion in Kraft Foods and concludes that this language, which has not changed since Kraft Foods was decided, is now ambiguous. Because, however, RSA 281-A-.2, XI is not ambiguous, we need not look beyond the statute for further indication of legislative intent, Kraft Foods, 147 N.H. at 574, and we need only determine whether the compensation appeals board (board) correctly applied the statute as written.

As to whether the petitioner’s personal workouts were a “condition of employment,” the majority relies upon differing common definitions of the term “condition” in concluding that the phrase “condition of employment” is susceptible of varying interpretations and is thus ambiguous. The phrase “condition of employment,” however, is one with a peculiar, and specific, legal meaning. See RSA 21:2. Because we have stated that RSA 281-A:2, XI provides a clear and exacting standard, it is to this specific definition we must look, and not to the varied common definitions. A “condition of employment” is a “qualification or circumstance required for obtaining or keeping a job.” BLACK’S LAW DlCTIONABY 314 (8th ed. 2004). Here, the petitioner testified that the Club did not require him to perform personal workouts while on duty and that he was interviewed for hire based upon what he knew and could teach, rather than upon what he could physically do. Thus, performing personal workouts at the Club was not a qualification or circumstance required for obtaining or keeping his job, and was not, therefore, a condition of his employment. Accordingly, I would conclude that the board did not err in determining that the petitioner’s personal workouts were not a condition of employment.

Additionally, the board determined that the petitioner’s personal workouts were not required for promotion, increased compensation, or continued employment. Because the petitioner does not argue that his personal workouts were required for promotion or continued employment, we need only analyze whether the petitioner reasonably expected, based upon the Club’s instruction or policy, that his personal workouts were required for increased compensation.

Although performing personal workouts was a method that personal trainers could use to attract clients, thereby increasing their commissions, the petitioner, as noted previously, testified that the Club did not require the trainers to perform any personal workouts. Additionally, the petitioner testified that the Club had a policy, which he followed, requiring him to remove the Club-issued shirt identifying him as an employee during any personal workouts. Moreover, according to the petitioner, although he primarily attracted clients through demonstrations of his knowledge, he also did so because he was well known in the community due to having had his own television show for a time, having been a competitive bodybuilder during the 1990s, his degree in exercise science, and his time as a model. Furthermore, the petitioner testified that around the time of his injury he had a “tremendous” client base which required him to work out after the Club had closed, when few people were present, because being approached by clients during the Club’s regular hours was “almost bothersome.” Finally, the petitioner could not point to any data that showed a correlation between his personal workouts and the attraction of new clients. Therefore, the petitioner did not reasonably expect, based upon the Club’s instruction or policy, that his personal workouts were for the purpose of increasing his compensation because they were not done for the purpose of attracting clients to increase his commissions. The board, therefore, correctly determined that the petitioner’s personal workouts were not required for increased compensation.

Because the petitioner’s personal workouts, including the one during which he was hurt, fall under the unambiguous exclusionary language in RSA 281-A:2, XI, the board properly determined that he did not suffer an “injury” for purposes of workers’ compensation. Because the board did not err as a matter of law, and because the petitioner has not otherwise shown the board’s decision to be unjust or unreasonable, I believe that the board’s decision should be affirmed. For these reasons, I respectfully dissent.

DALIANIS, J., joins in the dissent.