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Appel of Rhuland9/30/1998
benefits and application of the four-year filing period.
On December 4, 1996, the petitioner moved for a rehearing. In January 1997, the board unanimously denied the petitioner's motion, ruling:
"The [board] has previously reviewed a motion filed by your firm and rendered a decision on July 26, 1996, the Board having considered your motion in its entirety will not entertain your subsequent motion dated December 4, 1996 requesting another "Motion for Rehearing."
We note that the board erroneously concluded that the petitioner had previously filed a motion for rehearing on July 26, 1996. Rather, the respondent unsuccessfully moved for rehearing after the board ruled that the petitioner was entitled to temporary total disability benefits. Thus, the board failed to address the issues raised in the petitioner's motion for rehearing, relative to the applicability of the four-year filing period, before arbitrarily denying the motion. Moreover, the board neither addressed nor requested input from either party on whether the respondent may even raise the four-year filing period issue after the board had ruled in favor of the petitioner.
On appeal, the petitioner argues, inter alia, that the board erred in concluding that her claim for ongoing temporary total disability benefits was barred by the four-year filing period, see RSA 281-A:48, because: (1) the respondent failed to raise this defense at any level of the proceedings below; and (2) the board decided this issue without offering her an opportunity to respond. The respondent contends, inter alia, that the petitioner failed to meet her burden of proving that her claim for disability benefits was not time-barred under RSA 281-A:48.
We will not overturn an agency decision or order, absent an error of law, unless it is unjust or unreasonable. RSA 541:13 (1997); see Appeal of AFSCME Local 3657, 141 N.H. 291, 293, 681 A.2d 100, 102 (1996). When construing the workers' compensation statute, we resolve all reasonable doubts in favor of the claimant. Appeal of Cote, 139 N.H. 575, 578, 660 A.2d 1090, 1093 (1995).
RSA 281-A:48, I, states in pertinent part:
"Any party at interest with regard to an injury occurring after July 1, 1965, may petition the commissioner to review a denial or an award of compensation made pursuant to RSA 281-A:40 by filing a petition with the commissioner not later than the fourth anniversary of the date of such denial or the last payment of compensation under such award . . . ."
Assuming, without deciding, that the respondent raised the four- year filing period issue in a timely manner, we find that the board erred in ruling that the petitioner's claim was time- barred.
We have stated in workers' compensation cases that cumulative trauma does not become disabling until the injured worker is unable to continue working. See Appeal of Briggs, 138 N.H. 623, 631, 645 A.2d 655, 661 (1994). Specifically, in Appeal of Briggs, we noted:
"Cumulative trauma . . . does not result in injury under New Hampshire law until the employee is unable to continue working. The same rule applies where the claimant has a pre-existing condition not caused, but rather aggravated or exacerbated, by cumulative work- related activities. RSA 281:38-a, III (1987) thus requires that when the claimant is exposed to cumulative trauma resulting in disability, the employer at the time the disability arises bears the burden of any workers' compensation benefits owing." Id. (citations omitted).
Here, the board found in May 1996 that the petitioner suffered from "cumulative trauma arising out of and in the course of her employment," entitling her
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