Petition 31: the Henry Petition

Additional commentary by Timothy Horrigan

(member of the House Petitions & Redress Committee)

This is a workman's comp-related petition filed by a state representative, Andrew Manuse, who is normally as anti-labor as they come. I only saw about the first 20 minutes and the last 5 minutes of the initial 90-minute hearing because I had to go off and testify against HB-1285, a bill which would eliminate the state art fund. But I sat through the entirety of two subsequent hearings.

Mr. Henry is a construction worker who said he was injured while he was lifting a heavy 2 by 12 into place, or maybe he was tearing siding down, or maybe he was putting up siding, or maybe he was moving a ladder. The committee was provided with several different accounts of the instigating incident, which apparently happened sometime in August 2006. The two common elements of the various stories were that he was working with someone who happened to be a relative of the boss, and that someone or something fell as a result of this co-worker's incompetence.

In any case, Mr. Henry began suffering severe pain and he lost his job. He tried to go back to work, couldn't go back to work and then had a hard time (for whatever reason) getting workmen's compensation. There was also controversy over the treatment: doctors were reluctant to prescribe certain painkillers, for various reasons, including the facts that he had no insurance and no workmen's compensation.

He mentions the name of a witness in his petition, who never testified before the committee. She is the owner of the house where he was working when he was (allegedly) injured. Apparently, she would have only been able to say that she gave him an Aleve after he complained of neck pain.  I have redacted her name from the petition.

12-2921
09/04

PETITION 31
PETITION FOR REDRESS OF GRIEVANCE

TO: The Honorable House of Representatives
FROM: Petitioner Representative Andrew J. Manuse, Rock. 5
DATE: January 19, 2012
SUBJECT: Grievance of Wade Henry

Your Petitioner Representative Manuse on behalf of Wade Henry, hereinafter presents the following summary of his grievances involving decisions of David J. Rogers, hearings officer, and other employees of the Department of Labor and David Siff, chairman, and other members of the Compensation Appeals Board and invokes the constitutional authority and duty of the Honorable House of Representatives pursuant to Articles 31 and 32 to bring about redress:

Grievances involving the employees of the Department of Labor, including David J. Rogers, hearing officer, and members of the Compensation Appeals Board, including David Siff, chairman, for the following:

  1. The Department of Labor misinterpreted the facts of the case, leading to an erroneous decision, as follows:

    1. The Department cited 2 past unrelated injuries as rationale for denying Mr. Henry's claim. Mr. Henry had injured his shoulder twice before the incident leading to the claim, but the injuries were not debilitating.

    2. The Department incorrectly omitted testimony and evidence from doctors that Mr. Henry reported a "tearing in his neck" on a date in late August 2006, which is a different injury than the injury used to deny his claim and an injury that was debilitating.

    3. The Department incorrectly cited the description of the workplace incident that occurred, as testified to by Mr. Henry and his witness, [homeowner's name redacted] of Salem, New Hampshire.

  2. The Department and the Compensation Appeals Board inappropriately used past criminal history and Mr. Henry's understandable desire for pain medication as evidence for their decisions.

  3. The Compensation Appeals Board denied Mr. Henry due process when the Board:

    1. Denied a private investigator's report as hearsay evidence; and

    2. Would not allow a rehearing after Mr. Henry's attorney drafted a clear and consistent documentation of the facts on November 19, 2008, which clearly disputed the facts used to deny Mr. Henry's claim.


Wherefore, your Petitioner prays that the House of Representatives consider this proposed remedy:

  1. Introduce a house joint resolution that requests, notwithstanding any laws or rules to the contrary, another hearing that allows the evidence to be reconsidered and clarified.

  2. Consider and introduce changes to laws and administrative rules to prevent denial of due process or the activities which led to these faulty decisions.

Respectfully submitted by Petitioner Representative Manuse on Behalf of Wade Henry.

Co-Petitioners:
Rep. Reichard, Rock. 5
Rep. Itse, Rock. 9

Rep. Manuse prepared a thorough (though not necessarily 100% convincing) case summary in March 2012. I have decided to take it down from my web site, to protect the privacy and reputations of the various parties involved, including Mr. Henry himself. The gist of Manuse's statement is that Mr. Henry says he injured himself at work but he never qualified for workmens compensation.  He had only limited success getting pain medication, and he was accused of "drug-seeking behavior." Physical therapy was repeatedly recommended,

Martin Jenkins, a staff attorney with the state Department of Labor, submitted the following timeline, dated March 19, 2012, which sticks strictly to the bureaucratic events related to Mr. Henry's case:

March 19, 2012

To: Chairman Paul Ingbretson, Committee on Redress of Grievances

Re: Petition of Wade Henry, #31

Dear Chairman Ingbretson:

I am Legal Counsel for the NH Department of Labor (NHDOL). In this matter, I present here a chronology of Wade Henry's legal claim against his employer, TG & Son Carpentry, for workers' compensation benefits.

August, 2006 - While working at a private residence, Mr. Henry experiences pain.

October 5, 2006 - TG & Son Carpentry denies Mr. Henry's claim for benefits.

October 25, 2006 - Mr. Henry first requests a hearing to prove his entitlement to benefits from his employer.

January, 2007 to October 2007 - Several scheduled dates for hearing are delayed by Mr. Henry's attorney.

October 17, 2007 - Mr. Henry and his attorney, facing an opposing attorney for the employer, present evidence and argument to a hearing officer to prove his claim.

November 16, 2007 - The decision of the hearing officer is that Mr. Henry failed to prove his claim.

December 5, 2007 - Mr. Henry appeals for a new hearing before the Compensation Appeals Board.

January, 2008 to May, 2008 - Several scheduled dates for hearing are delayed by Mr. Henry's new attorney.

September 24, 2008 - Mr. Henry and his new attorney, facing opposing counsel for the employer, present evidence and argument to prove his claim. (This is a full fresh hearing, with no presumption that the earlier decision was correct.)

September 30 and October 2, 2008 - Attorneys for Mr. Henry and the employer present written summations.

October 20, 2008 - The Compensation Appeals Board's decision finds that Mr. Henry failed to prove his claim.

November 19, 2008 - Mr. Henry's attorney files a motion for re-hearing.

January 8, 2009 - the Compensation Appeals Board decision denies re-hearing.

Throughout this process, Mr. Henry was treated the same as every workers' compensation claimant who seeks payments from his employer. Mr. Henry's employer denied his claim, so the matter had to proceed to a hearing that treats both sides equally. Mr. Henry had a full opportunity to present his claim before a disinterested hearing officer within the framework of a fair and level hearing process.

Moreover, the law allows any party who is disappointed with a hearing officer decision to appeal for a new, fresh hearing, and Mr. Henry did so. The appeal was heard by a different, 3-person panel who heard the matter de novo, again within the framework of a hearing process designed to be fair to both sides in the dispute. At both hearings, Mr. Henry was advised and represented by an attorney of his choice.

After both hearings, the written decisions thoroughly explained that Mr. Henry's evidence and arguments had failed to prove that he experienced a work injury arising out of his employment. Therefore, his employer prevailed and was not required to pay benefits to Mr. Henry.

Sincerely,

Martin Jenkins Legal Counsel



The committee voted 9-1 against Mr. Henry:

Petition #31:  Grievance of Wade Henry.

MAJORITY:

Grievance Unfounded.

Rep. Kevin Avard for the Majority of the Committee.


The Redress of Grievances Committee held several hearings including the Petitioner and a representative of the Department of Labor and reviewed the related documentation.  While the Committee empathizes with Mr. Henry in being unable to get workman's compensation for what certainly appeared in his testimony to be a work related injury it was unable to conclude that the Labor Department made a wrongful decision.  Additionally, Mr. Henry and his counsel appear to have had all the normal opportunities for appeal.  Not enough evidence was provided to suggest the Department should review the case yet again or that any action should be taken legislatively regarding due process at the Labor Department.  Vote 9-1.

MINORITY:

Grievance Founded.

Rep. Stella Tremblay for the Minority of the Committee.


Committee Minority Findings:  The petitioner submitted documentation from his last doctor verifying that he was injured on the job.  Therefore, the Labor Department should have considered another review.

Other 2012 Petitions:



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