WORKERS' COMPENSATION LAW
"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."
Anatole France (1844 - 1924), The Red Lily, 1894, chapter 7
Howard Schultz remembers his father, who struggled mightily at low-paying jobs with little to show for it when he died: "He was beaten down, he wasn't respected. He had ....no workers' compensation when he got hurt on the job…I wanted to build the kind of company that my father never got a chance to work for, in which people were respected. We are going to shock people in terms of what Starbucks is going to be."
"In a speech at the 1980 Democratic Convention, the late Senator Ted Kennedy said, “"For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die ." That is never so true than on September 7, 2009 as our state and country celebrate the accomplishments of its greatest asset – its working men and women whose efforts have ensured our status as the greatest nation in the world." Opinion Piece by Department of Labor Commissioner George Copadis posted Sep 04, 2009 on the New Hampshire AFL CIO website.
An overview of the workers’ compensation system in the State of New Hampshire, including what is covered by workers’ compensation, what benefits are available, and what you should do if you have a work–related injury.
Excerpts below from Attorney Wheelock's presentation at the New Hampshire Association For Justice Seminar "WC Law in NH: Navigating the Muddy Waters" December 14, 2007 at the Crowne Plaza Hotel, Nashua, NH.
I. JURISDICTION, PRACTICE AND PROCEDURE BEFORE THE COMPENSATION APPEALS BOARD
Hearings before the Compensation Appeals Board are de novo hearings. Each panel consists of an attorney, a labor representative and a management/insurance representative with at least five years of experience and ten hours per year of continuing legal education and training in workers’ compensation. A decision of the Board requires two like votes. The board does not determine whether the hearing officer erred on a matter of law or misconstrued the facts. The Board hears the case as if it were being tried for the first time solely upon the evidence and argument presented in the course of the appeals board hearing. The board is administratively attached to the Department of Labor but appeal files are maintained separately from Department of Labor hearing files. Evidence submitted before the Department of Labor hearing officer is not placed in the appeal file of the Board unless submitted during the appeal. All evidence submitted for an appeal hearing must reference the appeal docket number or it is not placed in the file. New evidence may be submitted or evidence not considered by the hearing officer, subject to the provisions of Lab 205.09.
The general purpose of RSA 281-A:43, I (b) is to permit a substitution of the conclusions of the board for those of the hearing officer. The Board rehears the evidence introduced below and any new evidence developed thereafter, determines its probative value, and forms an independent conclusion. Leccacorvi v. State of NH Workers’ Comp. Commission, 135 N.H. 91 (1991) citing Charles and Nancy, Inc. v. Zezzin, 118 N.H. 556, (1978).
The subject matter jurisdiction of the board is limited to those issues that were raised before the Department of Labor and appealed by at least one of the parties or both. Appeal of Fay, 150 N.H. 321 (2003). If both parties disagree with a Department of Labor decision there can be cross appeals. See Lab 205.01 (f). For example, if the injured employee won on the causal aspect of the decision but is not satisfied with the decision on extent of disability, the injured employee may appeal only on extent. If the carrier disagrees with the causal ruling, the carrier might appeal causal as well. In the event that the injured employee withdraws their appeal, the carrier would still have the option of pursuing its’ appeal on causal. If the parties do not specifically limit their appeal, the appeal hearing goes forward on all issues raised at the Department of Labor level. The failure of either party to file a timely appeal is fatal to that party's right to pursue an appeal, unless the party petitions pursuant to RSA 281-A:50 and the board grants the petition. No new issues can be added. Even related issues, if they arise subsequent to the DOL hearing, must be decided in the first instance by a DOL hearing officer. Appeal of Staniels, 142 N.H. 794, 796 (1998).
RSA 281-A: 43, I (b) and Lab 205 et seq. set forth applicable procedures for an appeal to the Compensation Appeals Board. The New Hampshire Supreme Court has ruled that the Compensation Appeals Board is required to be generous in applying its procedural criteria, bearing in mind that the board’s role is to serve the broad remedial purpose of Workers’ Compensation Law. See Appeal of Morin, 140 N.H. 515 (1995). The “liberal construction” rule applies only to the construction of the statute, however, not to the evidence. In Re: Rockingham County Sheriff's Dept., 144 N.H. 194 (1999) and Appeal of Newcomb, 141 N.H. 664 (1997).
The testimony of the parties and witnesses is given under oath or affirmation administered by the chairperson. Witnesses, other than the claimant and employer, are frequently sequestered at the request of counsel. See Lab. 205.09 (g). A party may conduct such cross-examinations as is required for a full and true disclosure of the facts. The rules of evidence do not apply. Any oral or documentary evidence may be received; but the chair may exclude irrelevant, immaterial or unduly repetitious evidence. The Board is to give effect to the rules of privilege recognized by law. Objections to evidence offered may be made and shall be noted in the record. Subject to the foregoing any part of the evidence may be received in written form if the interests of the parties will not thereby be prejudiced substantially. See generally RSA 541-A:33 I, II.
II. RULES
The purpose of the administrative rules pertaining to Compensation Appeals Board Hearings is “to assist interested parties in understanding and conforming to hearings procedures established to promote and assure the conduct of a full, fair and adequate exposition of issues and the expeditious resolution of disputes.” The rules are to be construed to secure the just, speedy and inexpensive determination of every proceeding. Lab 201.01
Lab 203.07 allows for the presence of a party or the examination of any witness by telephonic conference calls, with the consent of all the parties, or video network conference provided that adequate facilities are available to allow all parties to participate fully. If all parties do not agree to the presence of a party or the testimony of a witness by telephone call or video networking conference, the panel shall allow the presence of a party or the ability of a witness to testify by telephone or video network conference upon a finding that: (1) adequate equipment and facilities are available to allow all parties to participate fully in the examination, and (2) allowing testimony in this form is necessary due to one or more of the following: (a.) economic hardship; (b.) illness; (c.) Distance to travel to the hearing from outside of New Hampshire; (d.) incarceration; (e.) the safety of any party to the proceedings is at risk based upon knowledge of threats or acts of violence; or contagious disease, or (f.) it would be manifestly inequitable to deny the requesting party use of telephone call or video network conferencing to present the testimony.
The Board generally does grant motions requesting the allowance of the telephonic testimony of corroborating or rebuttal witnesses. However, where Lab 203.07 (c) provides that “if assessment of the witness’s credibility is necessary, telephonic testimony shall not be allowed”, absent a stipulation, telephonic testimony of the witness is usually not allowed. Video network conference facilities are not available at the Department of Labor.
But see Moore v. Conifer Corp, 130 N.H. 795 (1988)
Facts: Denise Moore sustained a work-related injury for which she was awarded temporary total disability benefits. The carrier requested that the department order a termination of claimant’s benefits based upon an independent medical examination report and subsequent report in which the IME stated that claimant’s condition had improved. The department scheduled a hearing. The claimant, then a resident of Alabama, requested a telephone conference. The carrier objected. The request was denied. Claimant’s counsel and an insurance adjuster for the carrier appeared at the hearing, but not the claimant, or any other representative of either the employer or the insurance carrier. Because the claimant did not appear personally, the hearings officer refused to go forward with the hearing and ordered a suspension of claimant’s benefits.
Holding: The Supreme Court affirmed the Superior court’s findings, inter alia, that: (1) where parties to civil proceedings are not compelled to attend without subpoena, the claimant could not be required to appear personally; (2) the department had to apply the same standards with respect to personal appearance to all parties; (3) the decision of the hearings officer was reversed; and (4) the department was authorized to permit claimants to provide testimony by way of a deposition, a sworn affidavit or telephonic conference.
Lab 203.10 Standard and Burden of Proof.
(a) The party asserting a proposition shall bear the burden of proving the truth of the proposition by a preponderance of the evidence.
(b) Where a presumption exists, the burden shall shift as required by law.
Lab 205.03 Procedures Prior to the Appeal Hearing requires all parties complete a scheduling statement within 60 calendar days after mailing by the board which provides the following information:
(1) Name of case and docket number;
(2) Parties to the hearing and who they represent;
(3) An estimation of the time needed to conduct the appeal hearing,
(4) All witnesses expected to be called;
(5) A listing of videotaped material and the actual running time of these materials and
(6) All procedural issues and motions.
Lab 205.04 allows for the testimony of a medical witness to be “presented by means of a stenographic or videotaped deposition.” In all cases 3 copies of the stenographic transcript of the deposition are to be provided to the panel. All depositions are to be completed so that timely exchange of transcripts or videotaped materials may be made at least 14 calendar days before the scheduled hearing date. Lab 205.04 (b). The party taking deposition testimony for a hearing is required to provide other parties to the proceeding with a notice at least 10 calendar days prior to the deposition stating the time, date and location of the deposition, the name of the person being deposed, and the name and address of the stenographer or person taking the videotaped deposition.
Lab 205.09 (a) Conduct of Hearing provides that unless otherwise agreed, the appealing party is responsible for compiling all documentary evidence to be submitted to the compensation appeals board, at the time of the hearing, in triplicate, indexed, tabbed and paginated. Any evidence whose admissibility is in dispute may be submitted separately from the joint submission, pending ruling on any objections. Lab 205.09 (c). Lab 205.09 (d) now provides that all medical evidence shall be furnished to the opposing parties 5 business days before the hearing date. Parties who are introducing non-medical evidence shall “make all other parties aware of “such evidence and submissions no later than 2 business days prior to the scheduled hearing. In the event that a party attempts to submit evidence during the appeal hearing which was not disclosed prior to the appeal hearing, “the panel shall upon the objection of a party, not allow the introduction of such evidence or submissions upon finding that the objecting party would be prejudiced by its admission.” Lab 205.09 (e).
The chair is charged with regulating the course of the hearing and may accept offers of proof together with all relevant evidence. The chair rules on all matters of evidence and procedure relative to the conduct of the hearing. The panel is not bound by formal rules of evidence. Generally, any probative and relevant evidence is allowed. It is the practice of the Board to exclude hearsay as well as evidence that is irrelevant, immaterial or unduly repetitive pursuant to Lab 205.09 (i). Lab 205.09 (j) affords each party the opportunity to present a closing statement at the conclusion of the hearing. The carrier/employer is still required to make such closing statement first. In the event that the hearing has exceeded its allotted time, the panel may require written closing statements be submitted in triplicate within 7 calendar days of the hearing date. Decisions are made by the panel on the basis of evidence presented at the hearing only, unless the submission of additional documentation is required or allowed by the chair. Lab 205.09 (k).
Diminished Earning Capacity Rate
meaning employment which reasonably conforms with his/her age, education, training, temperament and mental and physical capacity to adapt to other forms of labor than that to which he/she was accustomed, but can no longer perform.
III. STATUTORY SECTIONS
Employee's Fault.
RSA 281-A:14 provides that an “employer shall not be liable for any injury to a worker which is caused in whole or in part by the intoxication, as defined in RSA 281-A:2, XII-a, or by the serious and willful misconduct of the worker. The provision as to intoxication shall not apply, however, if the employer knew that the employee was intoxicated.” Since 318-B:1 does not define intoxication, the Compensation Appeals Board has, by stipulation in some cases, adopted the Legislature's definition of “intoxication” contained in RSA 172-B:1 as meaning a condition in which the mental or physical functioning of an individual is substantially impaired as a result of the presence of alcohol in his system. It is the burden of the workers compensation insurance carrier to establish intoxication, as defined in RSA 281-A, XII-a, and that it caused, in whole or in part, the work related injury. As written, the bar is applicable in cases where intoxication plays any part in causing the worker’s injury.
Temporary Alternative Duty.
All employers with five or more permanent employees are required to develop, “…temporary alternative work opportunities for injured employees. …” RSA 281-A:23-b. Although RSA 281-A:23-b permits the employer to petition the commissioner pursuant to RSA 281-A:48 to reduce or end compensation of an employee who fails to accept temporary alternative work, the section also requires and the commissioner has adopted regulations which require that the employer provide the treating physician with an appropriate outline of the position being offered with an essential task analysis and that the employer offer a position approved by the treating physician. Lab 504.04 (f) and (g). The employee then is required to demonstrate a reasonable effort to comply or risk a reduction or ending of compensation. Thus, while both parties' have responsibilities under the administrative rules, the rules place the onus, in the first instance, on the employer to offer temporary work approved by a treating physician.
Savings, Insurance And Benefits to Injured Employee From Other Sources Are Not Considered.
RSA 281-A:36 provides that “[n]o savings or insurance of the injured employee independent of this chapter shall be taken into consideration in determining the compensation to be paid under this chapter, nor shall benefits derived from any source other than the employer be considered in fixing the compensation under this chapter.”
Independent Medical Examinations.
INDEPENDENT MEDICAL EXAMINERS MUST BE CERTIFIED
RSA 281-A:38, II. requires that any health care provider conducting independent medical examinations shall be certified by the appropriate specialty board as recognized by the American Board of Medical Specialties or obtain the approval of the commissioner for those specialties not recognized by such board. Further, the health care provider is required to maintain a current practice in that area of specialty.
Witnesses.
PROCEDURES ARE AS SIMPLE AS POSSIBLE.
RSA 281-A:49 provides that all process and procedure under the workers’ compensation act shall be as summary and simple as reasonable. The commissioner has the power, to subpoena witnesses, to administer oaths and to examine the books and records of parties to any proceedings. Further, the superior court has the power to enforce the attendance and testimony of witnesses and the production and examination of books, papers, and records.
False Representation.
PARTIES ARE SUBJECT TO CRIMINAL PUISHMENT FOR FALSE STATEMENTS
RSA 281-A:56, I provides that a person “who makes a false statement or representation for the purpose of obtaining any benefit or payment under this chapter, whether for himself or herself or for any other person, and who does not believe the statement or representation to be true, shall be subject to prosecution and punishment for false swearing under RSA 641:2, unsworn falsification under RSA 641:3, or perjury under RSA 641:1, as the case may be…”.
RSA 281-A:56, II provides that an “employer or insurance carrier, or any employee, agent, or person acting on behalf of an employer or insurance carrier, who makes a false statement or representation in the course of reporting, investigating or adjusting a claim for any benefit or payment under this chapter and who does not believe the statement or representation to be true shall be subject to prosecution and punishment for false swearing under RSA 641:2, unsworn falsification under RSA 641:3, or perjury under RSA 641:1, as the case may be.”
Judicial Notice.
RSA 541-A:33, V provides that official notice may be taken of:
(a) Any fact which could be judicially noticed in the courts of this state.
(b) The record of other proceedings before the agency.
(c) Generally recognized technical or scientific facts within the agency's specialized knowledge.
(d) Codes or standards that have been adopted by an agency of the United States, of this state or of another state, or by a nationally recognized organization or association.
IV. COMMON LAW CASES
Credibility.
New Hampshire Supply Co., Inc. v. Steinberg, 121 N.H. 506 (1981)
The weighing of the testimony and the assessment of its credibility is within the province of the Board.
“Among the things [the Board considers] are:
1. The witness' appearance, attitude, and behavior on the stand and the way the witness testified;
2. The witness’ age, intelligence and experience;
3. The witness’ opportunity and ability to see or hear the things about which he/she testified;
4. The accuracy of the witness' memory;
5. Any motive of the witness not to tell the truth;
6. Any interest that a witness had in the outcome of the case;
7. Any bias of the witness, or friendship or animosity the witness may have for or against any of the parties to the case; 8. The consistency or inconsistency of the witness' testimony;
9. Whether or not what the witness has said appears reasonable or unreasonable;
10. Whether what the witness said is consistent or inconsistent with the testimony of other witnesses, or with statements he/she made in previous sessions.” See NH CIVIL JURY INSTRUCTIONS 4D Issue 10 (2003)
Memory failures and mistaken memories are common and explain some inconsistencies and contradictions. It is common for two honest people to witness the same event and to see or hear things differently. When evaluating inconsistencies and contradictions the Board considers whether they relate to important or unimportant facts.
Uncontradicted Medical Testimony.
Appeal of Lambrou, 136 N.H. 18 (1992)
In Lambrou the Board failed to state why it rejected uncontroverted medical evidence supporting an award of medical benefits. On remand, the board was ordered to make specific findings of fact to support its decision. The Supreme Court recognized that the CAB can reject uncontradicted medical evidence but found that, “[I]f the board declines to accept uncontroverted evidence, it must state its reasons for doing so” so at to provide a basis for the Supreme Court to review questions of law arising on the facts found by Board.
Appeal of Briggs, 138 N.H. 623(1994)
The medical causation of a work injury is a matter properly within the province of medical experts. The board is required to base its findings on medical causation upon the medical evidence rather than solely upon its own lay opinion. In Briggs there was evidence of pre-existing arthritis in both of the claimant’s knees. The claimant’s knees gave way while he was performing his usual job. His two treating physicians, opined that his heavy labor exacerbated his knee problems and caused them to become disabling. The employer submitted a medical opinion, based upon a medical records review, which stated that although a specific work-related injury might be a trigger, heavy labor itself was not causally related to osteoarthritis. The claimant responded with a report that his "osteoarthritis is more severe as a result of his job,.. [and that] it is more likely than not that twenty years of heavy manual labor will aggravate a preexisting osteoarthritic condition of the knees." The board was not convinced that the daily demands of the job rose to the level of an accidental injury." The Supreme Court first reversed the decision to the extent it was based upon a finding that legal causation was not shown. The Supreme Court held that where the claimant concedes a preexisting weakness or condition, he must show that his work-related activities substantially contributed to his disability by showing that the work-related activities required more exertion than his non-work-related activities. The board's findings that the claimant’s job involved a lot of twisting, stair climbing, and lifting, and that he was not subjected to unusual or heavy stressors outside of his job led the Court to conclude that the board, applying the proper standard, would have found legal causation. Regarding medical causation, the Court noted that the claimant had to prove that his work-related activities either caused or contributed to his disability as a matter of medical fact. Where the board, cited no medical evidence to support its findings but merely relied upon the claimant’s work performance and lack of absenteeism, the Supreme Court remanded the case for the board to reconsider medical causation and base its findings on this issue upon the medical evidence rather than solely upon its own lay opinion.
Weight Given To The Treating Physician’s Opinion.
Appeal of Morin, 140 N.H. 515, 519 (1995)
In Morin the Supreme Court discussed the importance of treating physicians’ opinions in workers compensation cases in the context of reviewing the Board’s procedural error in denying Morin’s motion to continue an evidentiary hearing on the grounds his treating physician was unavailable. Treating physicians are especially important in a workers' compensation case: "[b]ecause a claimant's treating physicians have great familiarity with his condition, their reports must be accorded substantial weight." Poulin v. Bowen, 817 F.2d 865, 873 (D.C. Cir. 1987).
When presented with testimony whose very foundation is undermined, the board has discretion to reject expert medical testimony.
Appeal of Chickering, 141 N.H. 794 (1997)
Facts: The claimant was working by the side of the road. A passing car made a loud noise. The claimant turned his head quickly in the direction of the sound. Shortly thereafter he began to complain about pain in his right ear later diagnosed as a problem with the his right temporomandibular joint (TMJ). The board heard testimony from the claimant’s medical expert alone that "from the time sequencing and the resultant symptoms it seems like there was a cause and effect relationship" between the claimant's TMJ pain and the noise he heard when the automobile passed him on the road. On cross-examination, however, the claimant’s expert conceded that (1) he had never heard of a whiplash injury occurring without an outside mechanical force or fall; (2) the symptoms reported by the emergency room doctor were more indicative of an infection than of TMJ trauma; (3) the causal theory advanced was "unusual to say the least …" and (4) his conclusions were primarily based upon the fact that no other cause had presented itself. The board ruled that the claimant’s expert medical opinion failed to rise to the level of 'more probable than not'", that the claimant had failed to sustain his burden of proving medical causation and denied the claim.
Holding: The Supreme Court held that this was not a case in which the board ignored uncontradicted medical testimony or substituted its own judgment for that of the experts. Instead, the board was presented with testimony whose very foundation was undermined on cross-examination. In such a case, the board has discretion to reject the testimony of the expert witness.
Conflicting Expert Opinions.
Appeal of Newcomb, 141 N.H. 664 (1997)
Facts: Jonathan Newcomb injured his right knee after slipping on a wet floor at a Pizza Hut restaurant where he worked. He sought treatment and received benefits from Pizza Hut. X rays taken shortly after his injury proved "unremarkable". A subsequent MRI showed only a "probable minor bone bruise." He eventually underwent diagnostic arthroscopic surgery which revealed no significant abnormalities. He reported feeling "at least 95% better," and was released to return to work. H e went to work for a second employer. A few months later, he complained of "mild discomfort" in his right knee, ceased working and consulted a number of specialists. Eventually, an anesthesiologist, diagnosed his ailment as reflex sympathetic dystrophy (RSD) based upon the reported results of a lumbar sympathetic nerve block. The board held a hearing to determine whether the petitioner was disabled as a result of his fall at Pizza Hut or experienced an aggravation of a preexisting knee condition because of his employment with the second employer. The board ruled that: “The preponderance of the evidence does not establish that either the fall at Pizza Hut or the performance of his duties at Highwatch are the legal and medical cause of the claimant's currently disabling chronic right knee pain because the claimant has not established that he is currently disabled by an injury.” The board's ruling was based in part on a finding that:
No physician from New Hampshire's North Country to Boston's Lahey Clinic [has] found an objectively discernable explanation for the claimant's perceived symptoms. His X-rays, MRI and physical examinations all indicate that ... his right knee ... [is] without disease, structural damage or any other abnormality. Two of claimant's examining physicians have, therefore, by this process of exclusion, arrived at a diagnosis of Reflex Sympathetic Dystrophy, which diagnosis is doubted by two others upon the ground of the absence of some diagnostic criteria they assert must be present for the RSD diagnosis to be properly made.
Issue: Newcomb appealed the Board’s decision to the Supreme Court arguing that the board's ruling that he had not met his burden to prove medical and legal causation constituted reversible error because it was against the weight of the evidence and was not based on competent medical evidence.
Holding: The Supreme Court affirmed the board’s decision, finding that there was sufficient medical evidence before the board to reasonably support the finding that the claimant failed to prove the existence of a compensable injury. Specifically, Pizza Hut presented the medical report of an IME, who concluded, that "the evidence for reflex sympathetic dystrophy is very slim if not non-existent in view of the lack of demonstrable autonomic findings in either leg", a physician providing a second opinion advised against surgical intervention and a treating physician reported that "[h]e makes me very uncomfortable ….by the lack of physical findings."
The Court held that board, may disregard, in whole or in part, an expert's testimony when, faced with conflicting expert testimony. The board had before it medical records and literature upon which it could reasonably conclude that the presence of objectively discernable symptoms of RSD was necessary to support a finding of disability. Further, it was free to give less weight to the results of the sympathetic nerve block test since its outcome relied on the petitioner's account of its effectiveness.
Extent of Disability.
Medical evidence that the claimant’s injury is or is not disabling is required – the Board cannot rely solely on its own lay opinions.
Appeal of Kehoe, 141 N.H. 412, 417 (1996)
In Kehoe the Supreme Court held that “Because the determination of whether a claimant's injury is disabling requires specialized medical knowledge, the board members may not rely on their own lay opinions, but rather must make findings based on the opinion of a medical expert.”
In re: Chapman, 143 N.H. 503 (1999)
In Chapman the board adopted the medical opinion of a licensed psychiatrist, Dr. Albert Drukteinis, as to the petitioner's disability. Dr. Drukteinis diagnosed the claimant as suffering from an adjustment disorder and concluded that: “In spite of Mr. Chapman's subjective symptoms, his diagnosis and emotional condition are relatively minor and self-limiting. They do not constitute a major mental illness or a persistent disabling condition. He has required no psychiatric treatment and does not feel that he needs it. He takes no regular anti-depressant or psychotropic medication. He believes he could return to New Hampshire Hospital if he was treated differently there. He also believes he could work elsewhere, except for the difficulty of finding a job at his age. His continued symptoms and claimed disability, in my opinion, are a reflection of his anger and the conflict between himself and his superiors rather than a disabling mental illness.”
Holding: Reversed and remanded on the basis that the board improperly relied on Dr. Drukteinis' report to support its finding that the petitioner's adjustment disorder was not disabling because the doctor's report never concludes that the claimant’s injury did not render him unable to work. Dr. Drukteinis merely stated that the claimant did not have a "persistent disabling condition." Accordingly, the Supreme Court held that statement did not support the board's conclusion that the claimant was not disabled.
Medical Tests, Opinions And IME’s Performed After The Hearing Before The Department Of Labor.
Appeal of Staniels, 142 N.H. 794 (1998)
In a workers' compensation cases involving disability benefits, where the issue decided by the department of labor hearing officer and appealed to the compensation appeals board is the claimant’s extent of disability as of the date of the hearing before the hearing officer, the board will consider the claimant's subsequent medical treatment and medical opinion evidence to be relevant only to that issue. A subsequent MRI test result or IME, may still be relevant, but only to the extent it is relevant and speaks to the question of the condition of the claimant as of the date of the hearing before the hearing officer. Any change in claimant's condition after the Department of Labor hearing, may not be relevant to that issue, even though it may constitute adequate grounds for filing a new petition with the department pursuant to RSA 281-A:48.
Loss Of Earning Capacity.
Direct evidence of loss of earning capacity is not required – the Board can use its judicial discretion in determining the loss.
Servetas v. King Chevrolet-Oldsmobile Co., 117 N.H. 1061 (1977)
At the hearing, a department of employment security manager testified for the employer concerning the earning abilities of an individual in the position of the claimant bookkeeper. The employment security manager testified the claimant would earn between $150 and $200 per week. Even though this testimony went unchallenged, Supreme Court held the earning capacity of the claimant could not be determined solely on the basis of this direct evidence, because the determination of earning capacity requires the exercise of judicial discretion within the limits of the statute. The claimant in Servetas did not introduce direct evidence that he had sought employment and had been rejected, but the Supreme Court held that the “trial court could, nonetheless, fairly estimate the loss of the plaintiff's capacity to obtain gainful employment in any particular occupation as a result of the injury by looking to plaintiff's prior work history, education and training, and general physical and mental condition existing at the time of the hearing.”
Servetas cites Dunbar Fuel v. Cassidy, 100 N.H. 397 (1957)
In the Dunbar Fuel case, the Supreme Court discussed how the trial court did not require direct evidence of loss of earning capacity where the injured worker was 34 years of age, had completed only the sixth grade in school, has always been a laborer on unskilled manual jobs, and had suffered a "25% permanent partial disability in the use of his left arm" due to limitation of motion in external rotation of the shoulder. Taking these facts into account, the trial court had a sufficient basis for forming an opinion as to his earning capacity after injury, without direct evidence of loss of earning capacity.
Permanent Impairment Awards.
Petition of Abbott, 139 NH 412 (1995).
The New Hampshire Supreme Court held that the evidence supported the Department of Labors' Decision that a workers' compensation claimant was not entitled to Permanent Partial Disability Benefits for soft tissue injury where the evidence indicated a diagnosis of chronic lumbar strain, without evidence of disc herniation or bony pathology.
Petition of Croteau, 139 NH 534 (1995)
The Supreme Court reaffirmed that the aggravation of a degenerative condition would be compensable if the aggravation were work related.
Change In Conditions.
Medical evidence that the claimant’s original work-related condition has resolved, and that continued disability is related to pre-existing disease can be sufficient evidence of a change in conditions to warrant termination of benefits.
Appeal of Lois Hiscoe (NH Compensation Appeals Board), 147 N.H. 223 (2001)
Facts: In 1999, Lois Hiscoe came before the Compensation Appeals Board at the age of 68 seeking a permanent partial impairment award for a back injury. In 1992 she injured her lower back working at the New Hampshire State Hospital as an HR Assistant, opening the bottom drawer of a file cabinet. She saw various physicians who diagnosed her back condition as a lumbar strain and degenerative disc disease with no evidence of disc herniation. She received temporary total disability benefits from the time of her 1992 injury. In the late 1990’s, she requested a hearing to determine her eligibility for a permanent impairment award based upon an attending physician’s opinion that "the injury relates to the work injury of 1992 since that is when the pain started and there was no pain prior to that and the pain has been present ever since then." The carrier requested that the issue of extent of disability be added based upon an IME report from William Boucher, M.D., indicating that the condition the claimant was suffering from was no longer causally related to her original injury. In his report, Doctor Boucher concluded that his examination revealed no evidence of ongoing injury and that her condition was caused entirely by osteoarthritis of the lumbosacral spine, which had been significant since 1986. The claimant had a previous 1986 work related injury, while working for a different employer, followed by a history of lower back pain and pain radiating down her right leg. Following her 1992 injury there was a 2-year hiatus beginning in 1994 when she not seek any medical treatment for her back condition.
On appeal the board denied the claimant’s request for a permanent impairment award on the ground that her injury was a soft tissue injury and therefore excluded under RSA 281-A:32, IX. The board ruled that the petitioner was not entitled to a permanent impairment award because she failed to prove that her work related injury caused an aggravation of her underlying degenerative disc disease. Further, the board granted the carrier’s request to terminate the petitioner's disability benefits, finding that "the administrator [proved] a change of condition by a preponderance of the evidence that there [wa]s no causal relationship between the claimant's current disability and her work related [injury] of May 25, 1992." The claimant appealed arguing the board erred in terminating her disability benefits arguing that in order to prove a change in condition, the carrier was required to establish that there was a change in her physical condition, enabling her to perform her regular work or engage in gainful employment.
Holding: The Supreme Court held the carrier had the burden of establishing that her work-related disability had ceased and, if she continued to be disabled, that the disability was no longer caused by the compensable injury. In Hiscoe the carrier presented substantial medical evidence that the claimant’s original work-related condition (lumbar strain) had resolved, (three medical opinions) and that her continued disability was related to her pre-existing degenerative disc disease. The Supreme Court held that where an employer has introduced sufficient medical evidence that a "claimant's work-related injury has ceased and any physical problems still suffered from are causally related to a pre-existing condition it is not necessary that the employer prove that suitable alternative work is available.” The evidence established that there was no causal connection between the petitioner's disability in 1999 and the 1992 workplace injury and the board could, therefore, reasonably conclude, based upon the medical opinions submitted, that the claimant experienced a change in condition.
The change in condition" necessary to justify reducing or terminating benefits need not be a change in a claimant's physical condition, but may be a change in the claimant's earning capacity.
Appeal of Woodmansee, 150 N.H. 63 (2003)
The claimant was in his mid-forties, had a high school diploma, and had primarily worked on construction jobs as a drywaller. After injuring his lower back in 1990, Mr. Woodmansee had four back surgeries, took numerous pain medications and suffered from depression. In 1999, the insurer, One Beacon obtained a videotape showing the claimant installing siding on a house. In 2000, One Beacon requested second review hearing. This time, the claimant testified that since 1999, he had worked on four construction jobs. The claimant testified that because of his chronic pain he could not work either a 40-hour week or a reduced work schedule for someone else because he was homebound at least one or two days a week. The claimant’s wife testified her husband's business lost money such that they declared bankruptcy at one point. The claimant’s two treating physicians opined that his medical condition had not changed from 1999, that he had no "usable work capacity", was "not able to return to his former profession" and was "totally disabled” according to Social Security guidelines. An IME, Dr. James Forbes, opined, however, that the claimant had "demonstrated that he [did] have a work capacity" although it was difficult to quantify because it "seem[ed] to be intermittent." The appeals board adopted Dr. Forbes opinion and ruled that although the petitioner continued to experience pain, his "medical condition [was] not such that [he] [had] no work or earning capacity."
Holding: The Supreme Court held that while a change in claimant's ability to get or hold employment, or to maintain his earlier earning level, should logically be considered a `change in condition, Dr. Forbes did not opine as to whether the claimant had an earning capacity. His opinion was limited to the claimant having a work capacity. By relying upon Dr. Forbes' opinion, the board erred by effectively conflated the concepts of work capacity and earning capacity. A determination of whether a worker's earning capacity has been diminished or enhanced must be reached with reference to the worker's value in the marketplace, independent of the subjective measure of the worker's actual earnings. With respect to self-employment, the determinative issue is whether the employee's skills, utilized by the employee in the active operation of his own business, when considered in conjunction with the employee's impairment, age, education, and experience, would enable the employee to compete in the labor market. Because the board conducted the wrong inquiry, the Supreme Court vacated and remanded for a determination as to whether the claimant had experienced a change in his earning capacity that justified reducing the rate of his benefits from temporary total disability to the diminished earning capacity rate.