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In re CNA Insurnace Companies12/30/1998
Compensation Appeals Board
CNA Insurance Companies appeals a decision of the compensation appeals board (board) denying a petition for reimbursement from the second injury fund. See RSA 281:47-a (1987) (amended and recodified 1988, amended 1989). We reverse and remand.
Byron Emmons had been employed at Harris Graphics for about twenty years when he was injured on April 9, 1985. On that date, Emmons injured his knee on a machine after running into a skid. Emmons received workers' compensation benefits from Harris Graphics' workers' compensation carrier, CNA Insurance Companies (CNA), and underwent arthroscopic surgery in May 1985. Although his knee continued to bother him, Emmons returned to work on July 15, 1985, with modified responsibilities. In August 1985, Emmons had fluid removed from his knee. On September 9, 1985, as Emmons picked up a casting weighing about fifteen pounds from a pallet at work, his knee gave out and he fell backwards onto the pallet of castings. He was treated at the Wentworth-Douglass Hospital, where he complained of severe back pain, a problem which he had never had before this incident. Emmons has not required any treatment for his knee since the back injury .
Harris Graphics terminated Emmons' employment on March 9, 1986. In June 1986, Harris Graphics notified the second injury fund of a possible claim based on Emmons' September 1985 injury. See RSA 281:47-a, VI.
Emmons was awarded temporary total disability benefits and received a lump sum settlement of $125,000 in November 1993 for the September 1985 injury . The second injury fund consented to the settlement. See RSA 281:48-a, IV (1987) (amended and recodified 1988, amended 1989). The second injury fund then denied CNA's request for reimbursement from the fund because Emmons "did not sustain a new work injury [on September 9, 1985,] but that it arose out of the prior work injury of [April 9, 1985]." Likewise, the board concluded that
"this case is not applicable for reimbursement from the second injury fund. This decision is based on the analysis of the Pane that the claimant, although injured, did not suffer a second work related injury arising out of and in the course of employment as defined by New Hampshire Workers' Compensation Statutes."
On appeal, CNA argues that the board erred: (1) in concluding that CNA is not entitled to reimbursement from the second injury fund, where Emmons' April 1985 knee injury was a pre-existing permanent impairment, and his September 1985 back injury, which subsequently disabled him, indisputably arose out of and in the course of his employment; (2) in basing its ultimate decision on its determination that Emmons' September 1985 back injury was not a "second injury" where former RSA 281:47-a, I, does not require a "second injury," but instead merely requires a "subsequent disability by injury"; and (3) in concluding that Emmons' injury was not a second injury, if the second injury requirement was proper, where the September 1985 injury caused him to experience new symptoms in his back, which was previously symptom-free, disabled him from working, and resulted in substantially greater workers' compensation liability.
On appeal, we will not set aside or vacate an administrative decision "except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable." Appeal of Dube, 138 N.H. 155, 157-58, 636 A.2d 59, 61 (1993) (quotation omitted); see RSA 541:13 (1997). In interpreting a statute, we "cannot read words into it which the legislature did not see fit to insert." Gregory v. State, 117 N.H. 62, 63, 369 A.2d 181, 181-82 (1977) (qu
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