Appeal of New Hampshire Youth Development Center

Galway, J. The New Hampshire Youth Development Center (State) appeals a decision of the New Hampshire Compensation Appeals Board (Board) allowing the petitioner, Stephen Searles, to continue to receive the [87] benefit of past adjustments to his weekly compensation rate, while also receiving social security disability benefits. See RSA 281-A:29 (1999). We reverse and remand. The record reflects the following facts. The petitioner injured his right shoulder while working for the State on December 29, 1993, and began receiving workers’ compensation benefits at a weekly rate of $316.60. See RSA 281-A:28 (1999). Although the petitioner applied for social security disability benefits in 1996, his application was denied. In December 1996, he received a cost-of-living adjustment to his weekly rate. See RSA 281-A:29. He continued to receive annual cost-of-living adjustments, see RSA 281-A:29, IV, and by July 2001, his adjusted weekly rate had increased to $443.34. The petitioner reapplied for social security disability benefits, and, on August 21, 2001, the Social Security Administration notified him that he qualified for benefits. As a result of his qualification for social security disability benefits, the petitioner’s workers’ compensation benefits were reduced to his unadjusted weekly rate of $316.60. While receiving social security benefits, the petitioner requested that the New Hampshire Department of Labor (DOL) order reinstatement of his adjusted weekly rate of $443.34. The DOL denied the petitioner’s request. The petitioner appealed to the Board, which determined that he was entitled to continue to receive the adjusted weekly rate of $443.34, but that he was not entitled to any future cost-of-living adjustments under RSA 281-A:29. The State appealed. When reviewing the Board’s decision, we will not disturb that decision absent an error of law, or unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable. Appeal of Hiscoe, 147 N.H. 223, 227 (2001). As the facts of this case are undisputed, we examine the Board’s decision only for errors of law. The State argues that because the petitioner is now receiving social security disability benefits, the plain language of RSA 281-A:29 provides that he is not entitled to continue to receive the adjusted weekly rate afforded by the statute. We agree. 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 Hiscoe, 147 N.H. at 230. When construing the meaning of a statute, we first examine the language found in the statute and, where possible, ascribe the plain and ordinary meanings to the words used. We interpret legislative intent from the statute as [88] written, and do not consider what the legislature might have said or add words to the statute that the legislature did not include. In the Matter of Arabian & Squillante, 151 N.H. 109, 111 (2004). RSA 281-A:29 provides: For all compensable injuries occurring on or after July 1, 1963, for which total disability continues, except those injuries for which the employee is entitled to benefits under the federal Social Security Act, as amended, the injured employee shall be entitled to an adjustment in the weekly compensation rate ... based upon the following formula: IV. The injured employee shall be entitled to an adjustment in the weekly compensation rate at one year intervals on July 1 in each year with the initial review occurring on or after the third anniversary of the injury. (Emphasis added.) There is no dispute that the petitioner was entitled to receive an adjusted weekly rate prior to his entitlement to social security benefits. The only issue now in dispute is whether, once the petitioner became entitled to social security benefits, the entitlement to receive an adjustment to the weekly rate ceased to exist. “[B]ecause the right to compensation is statutory in its origin, injured workers’ rights can be no greater than what the legislature has provided.” P. L. Salafia, New Hampshire Workers’ Compensation Manual § 1.05, at 1-5 (3d ed. 2004). Though the dissent argues that the statute is ambiguous, we see no ambiguity. RSA 281-A.-29 does not provide that an injured worker who is entitled to social security benefits shall not be entitled to any jfuture adjustments; rather, RSA 281-A:29 plainly states that an “injured employee shall be entitled to an adjustment in the weekly compensation rate” except for “those injuries for which the employee is entitled to benefits under the federal Social Security Act.” (Emphasis added.) We interpret this language as providing that if an injured worker is entitled to social security benefits, there is no statutory right to any entitlement under RSA 281-A:29. Injured workers who receive social security disability benefits are kept up-to-date with respect to the value of their earnings, even though they do not receive cost-of-living adjustments to their workers’ compensation [89] benefits, because social security disability benefits, themselves, contain cost-of-living adjustments. 42 U.S.C. § 415(i) (2000); see, e.g., Engelbrecht v. Hartford Acc. & Indem., 680 P.2d 231, 232 n.1 (Colo. 1984). It is only when an injured worker is not entitled to social security disability benefits that the need for RSA 281-A:29 becomes apparent. That is because, without the cost-of-living adjustments provided by RSA 281-A:29, an injured worker’s benefits will fail to adjust to modern prices, as that worker will receive no cost-of-living adjustments whatsoever. RSA 281-A:29 demonstrates a statutorily drawn balance between the welfare of the employees of this State and the interests of the employers of this State. Where an employee does not receive social security benefits, the legislature has chosen to require an employer to pay cost-of-living adjustments to the employee for the above stated reasons. However, where an employee does receive social security benefits, the legislature has chosen to relieve the employer of that burden and allow the employee to rely upon the Social Security Administration for cost-of-living adjustments. Thus, our interpretation merely reflects the statutory allocation of the financial responsibility, as between the employers of this State and the Social Security Administration, for the payment of an injured worker’s adjustments. To award an employee both cost-of-living adjustments for workers’ compensation and cost-of-living adjustments for social security would unnecessarily broaden a statute that was enacted for a narrow set of workers, and provide a benefit that would burden the employer beyond that which is authorized by the statute. In this case, now that the petitioner is entitled to social security benefits, he will receive cost-of-living adjustments through those benefits and be protected, to the extent deemed necessary by the legislature, from the future decline in the value of the benefits that would otherwise occur. Reversed and remanded. Broderick, C.J., and Nadeau, J., concurred; Dalianis, J., with whom Duggan, J., joined, dissented.