DALIANIS, C.J.
The respondents, New Hampshire Department of Corrections (DOC) and Liberty Mutual Insurance Company (collectively, the insurer), appeal the decision of the New Hampshire Compensation Appeals Board (CAB) that the petitioner, Michael Whitaker (claimant), was entitled to ongoing temporary total disability indemnity benefits beginning September 17, 2009. We affirm.
The following facts are derived from the record. The claimant first filed a workers' compensation claim in January 2008, alleging that he suffered emotional injuries on August 18, 2007, because of harassment and retaliation at his DOC job. The insurer denied the claim on January 25, 2008, on the ground that the claimant's injuries were not causally related to his employment. On June 16, 2009, the CAB ruled in the claimant's favor, awarding him benefits from October 24, 2007, the date he was deemed unable to work, through "at least" October 20, 2008, the date of the initial hearing before a department of labor hearing officer. See RSA 281-A:16 (2010). On August 14, 2009, in response to the claimant's motion, the CAB clarified that he was entitled to benefits at the temporary partial disability rate. See RSA 281-A:31 (2010). On February 2, 2010, in response to the claimant's second motion for clarification, the CAB explained that he was entitled to temporary partial disability benefits "continuing after October 20, 2008."
On August 26, 2010, the insurer filed a motion in the CAB proceedings to dismiss the claimant's request for increased benefits because, in 2008, he had filed a claim with the New Hampshire Commission for Human Rights, seeking damages for his allegedly wrongful discharge from DOC employment in June 2008. The insurer argued that by filing a statutory claim for wrongful termination, the claimant waived his claim for increased benefits. See RSA 281-A:8, III (2010). On October 6, 2010, the CAB denied the insurer's motion to dismiss, deciding that the claimant was entitled to ongoing temporary total disability indemnity benefits from his September 2009 hospitalization because he had proved that his hospitalization was related to his original August 2007 work injury. The insurer unsuccessfully moved for reconsideration, and this appeal followed.
On June 15, 2011, we granted the insurer's motion to supplement the record on appeal with a writ the claimant filed in superior court on September 15, 2010, against the State and the DOC, seeking damages for retaliation and discrimination under state and federal statutes. However, the insurer has not demonstrated that it preserved any issues related to the writ for our review. See Appeal of Bosselait, 130 N.H. 604, 606-08, 547 A.2d 682 (1988); see also Sup.Ct. R. 10(1)(i). The record on appeal shows that the insurer's motion to dismiss and its October 6, 2010 motion for reconsideration were based upon the administrative claim filed with the human rights commission. The record does not show that the insurer ever alerted the CAB to the fact of the claimant's superior court writ. Accordingly, we decline to consider the parties' arguments with regard to the claimant's superior court writ. We, likewise, decline to consider arguments that the insurer raised for the first time at oral argument, such as its contention that the claimant's original work-related injury was for constructive discharge or that the CAB erred by not requiring the claimant to dismiss his superior court writ. See Appeal of Savage, 144 N.H. 107, 112, 737 A.2d 1109 (1999).
Our standard of review is statutory:
RSA 541:13 (2007). Thus, we review the CAB's factual findings deferentially. Appeal of Hartford Ins. Co., 162 N.H. 91, 93, 27 A.3d 838 (2011). We review its statutory interpretation de novo. Id.
On questions of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 250, 910 A.2d 1262 (2006). We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used. Id. We interpret legislative intent from the statute
Relying upon the exclusive remedy provision of the Workers' Compensation Law, RSA 281-A:8 (2010), the insurer first argues that the CAB erred when it denied the insurer's motion to dismiss. RSA 281-A:8 provides, in pertinent part:
Workers' compensation is an employee's exclusive remedy for "all rights of action whether at common law or by statute ... [a]gainst the employer or [its] ... insurance carrier." RSA 281-A:8, I (emphasis added); see Tothill v. Estate of Center, 152 N.H. 389, 394-95, 877 A.2d 213 (2005). RSA 281-A:8, III contains a limited exception to the workers' compensation exclusivity bar for claims of "wrongful termination" or "constructive discharge." See Lacasse, 154 N.H. at 251, 910 A.2d 1262. Under RSA 281-A:8, III, an employee may elect to bring a claim for wrongful or constructive discharge either under the Workers' Compensation Law or under some other law, but may not bring such a claim under both the Workers' Compensation Law and some other law.
The insurer argues that, pursuant to RSA 281-A:8, III, the claimant's 2008 administrative claim alleging wrongful discharge barred his October 2009 request for increased disability benefits. The insurer contends that having filed an administrative claim of discrimination alleging wrongful termination, the claimant waived his claim for increased workers' compensation benefits. This argument succeeds only if the claimant attempted to obtain both workers' compensation benefits and remedies under other laws for his allegedly wrongful termination. However, our review of the record reveals that the claimant has not brought a workers' compensation claim for his allegedly wrongful termination. Accordingly, the insurer's argument fails.
There is no evidence in the record that the claimant ever sought workers' compensation benefits for his June 2008 discharge
There is no evidence in the record before us that the CAB has ever been asked to decide whether the claimant is entitled to workers' compensation benefits because of his discharge from employment. Thus, while the claimant may have sought damages for wrongful termination in his administrative claim of discrimination, he did not seek such damages in his January 2008 and October 2009 workers' compensation claims. Therefore, we hold that RSA 281-A:8, III does not bar the claimant's workers' compensation claims.
The insurer next contends that the claimant in his administrative claim of discrimination and/or superior court writ has sought statutory or common law remedies for the retaliation and discrimination he allegedly suffered before his discharge. Assuming, without deciding, that this is the case, the proper remedy would not be dismissal of the claimant's workers' compensation claim. As previously explained, workers' compensation provides the claimant's exclusive remedy for all claims against an employer or its insurer except wrongful or constructive discharge. See id. (workers' compensation is employee's exclusive remedy for negligent supervision claim against employer); see also Karch v. BayBank FSB, 147 N.H. 525, 529-30, 794 A.2d 763 (2002) (workers' compensation is employee's exclusive remedy against employer for negligent and intentional infliction of emotional distress). Whether dismissal of the superior court writ is required is not properly before us, and we express no opinion on it. The instant appeal concerns only the CAB's decision to allow the claimant's workers' compensation claim to go forward. It does not concern whether the human rights commission should have dismissed the claimant's administrative claim of discrimination or whether the superior court should dismiss his currently pending writ.
Relying upon RSA 281-A:38 (2010) (amended 2011), the insurer next argues that the CAB erred when it denied the insurer's motion in limine to exclude the report and testimony of the claimant's medical expert, Eric G. Mart, Ph.D., ABPP. The insurer argues that Dr. Mart's report and testimony should have been excluded because his qualifications do not satisfy the requirements of RSA 281-A:38, II.
The insurer's reliance upon RSA 281-A:38 is misplaced. The statutory requirements regarding medical expert qualifications apply only to medical examinations "requested by the employer or ordered by [the CAB]." RSA 281-A:38, I (emphasis added). They do not apply to medical examinations conducted by the claimant's own experts. RSA 281-A:38, I, makes this clear by explaining that the medical examinations to which it refers must be "paid by the employer" and conducted "at
Further, RSA 281-A:38, II refers to medical examinations "requested by the employer or ordered by [the CAB]," RSA 281-A:38, I, as "independent medical examinations," meaning medical examinations that are not conducted at the claimant's behest. RSA 281-A:38, II provides that "[a]ny health care provider conducting independent medical examinations" must meet certain professional requirements.
Based upon the plain meaning of RSA 281-A:38, read as a whole, we hold that the CAB did not err when it allowed the claimant to submit the report and testimony of his own medical expert. Contrary to the insurer's assertions, the requirements set forth in RSA 281-A:38, II apply only to health care providers conducting independent medical examinations.
Affirmed.
DUGGAN, HICKS, CONBOY and LYNN, JJ., concurred.