Appeal of Steven MacDougall

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0095, Appeal of Steven MacDougall, the
court on November 13, 2019, issued the following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
Accordingly, we vacate that portion of our order of April 1, 2019, which stated
that this case would be “scheduled for oral argument before the full court.”

The claimant, Steven MacDougall (employee), appeals a decision of the New
Hampshire Compensation Appeals Board (CAB) in his claim against his
employer, United Parcel Service and its insurer, Liberty Mutual Insurance Co.
(collectively employer). We affirm.

RSA chapter 541 governs our review of CAB decisions. See RSA 281-A:43,
I(c) (2010). The party seeking to set aside the CAB’s order bears the burden of
proof “to show that the [decision] is clearly unreasonable or unlawful.” RSA
541:13 (2007). “[A]ll findings of the [CAB] upon all questions of fact properly
before it shall be deemed to be prima facie lawful and reasonable.” Id. “[T]he
order or decision appealed from shall not be set aside or vacated except for errors
of law, unless the court is satisfied, by a clear preponderance of the evidence
before it, that such order is unjust or unreasonable.” Id.

When reviewing the CAB’s findings, our task is not to determine whether
we would have found differently than did the CAB, or to reweigh the evidence,
but rather to determine whether the findings are supported by competent
evidence in the record. Appeal of Phillips, 165 N.H. 226, 235 (2013). We review
the CAB’s rulings on issues of law de novo. See Appeal of Wingate, 149 N.H. 12,
14 (2002); RSA 541:13.

In this case, the employer denied the employee’s Workers’ Compensation
claim in the first instance. On July 10, 2018, a New Hampshire Department of
Labor (DOL) hearing officer found the employee’s injury to be work-related and
awarded him temporary total disability benefits from the date of his post-injury
surgery and ongoing. The employer appealed the hearing officer’s decision to the
CAB, which held a de novo hearing on November 28, 2018, at which the
employee was the sole witness. See Appeal of Rainville, 143 N.H. 624, 629 (1999)
(stating CAB hearing is de novo). A letter, dated October 22, 2018, from the
employee’s treating physician, releasing him for work with a 40-pound lift
restriction, was admitted without objection. This letter was written after the DOL
hearing, and, thus, was not submitted at that hearing. The CAB found that the
employee was entitled to temporary total disability benefits from the date of the
injury until the date of the physician’s partial work-release letter and awarded
him diminished earnings capacity benefits from the date of that letter forward.

Both the employee and his attorney requested partial reconsideration.
Attached to the requests were numerous text messages apparently between the
employee and the employer prior to the CAB hearing and several e-mails he and
the employer exchanged after the CAB hearing, all relating to his return to work
with lifting restrictions, which the employer refused to allow.

The employee contends that the CAB erred by: (1) admitting his treating
physician’s partial work-release letter and relying upon it to determine his
condition as of the date of the letter rather than as of the date of the DOL
hearing; (2) “reducing” the hearing officer’s award of benefits when the CAB’s
hearing notice did not specify that it would consider such reduction; and (3)
awarding the employee diminished earning capacity benefits from the date of the
partial work-release letter forward when the employer did not make light-duty
work available.

We first address whether these issues are preserved for our review. In an
administrative appeal, the appellant must first file a motion for rehearing setting
“forth fully every ground upon which it is claimed that the decision or order
complained of is unlawful or unreasonable.” RSA 541:4 (2007). Any ground not
set forth in the motion for rehearing is not reviewable on appeal, absent good
cause shown to specify additional grounds. Appeal of Walsh, 156 N.H. 347, 351
(2007). The reason for this requirement is that the CAB should have an
opportunity to correct any alleged error in the first instance. Id. When the
record does not demonstrate that the appealing party has met the requirements
of RSA 541:4, we will not consider such issues. See id.

In this case, both the employee and his attorney requested the CAB to
reconsider its decision. The employee challenged the CAB’s finding that he
“conceded he has not attempted to return to his UPS work” after receiving the
partial work-release letter. The employee’s attorney requested the CAB to
reconsider its “[r]uling concerning [the] extent of disability.” It clarified this broad
statement by stating only that “[a]though [the employee] has a light duty work
release, his employer refuses to make any light duty work available.” The CAB
concluded that these two requests raised the same issues and summarily denied
them.

We conclude that these requests for reconsideration failed to raise: (1) the
admission of, or the purpose for which the CAB considered, the partial work-
release letter; or (2) the scope of the hearing notice, which, we note, specified
“Review of Eligibility for Compensation” under RSA 281-A:48 (Supp. 2018). In
his brief, the employee does not argue that there is “good cause” to allow him to
specify additional grounds beyond those in the request for reconsideration.

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Accordingly, we conclude that these issues are not preserved, see Walsh, 156
N.H. at 351, and limit our review to the one issue raised in the requests for
reconsideration.

The employee contends that the CAB erred by awarding him only
diminished earning capacity benefits from the date of the partial work-release
letter forward when the employer did not make light-duty work available. The
employee argues that the CAB improperly placed the burden on him to establish
that he could not find work consistent with the letter’s lift restriction. But see
Appeal of Briand, 138 N.H. 555, 557 (1994) (stating claimant has burden of
proving extent of disability). The employee testified that he had not looked for
any other type of work since receiving the release. He further testified that he
worked for the employer only two hours a day, five days a week, and that, after
his injury, he continued to work as a realtor without interruption. To the extent
that the employee argues that the CAB erred by not considering the text
messages and e-mails attached to his requests for reconsideration, it could have
reasonably determined that they were not material or lacked sufficient
foundation. Cf. Lillie-Putz Trust v. DownEast Energy Corp., 160 N.H. 716, 726
(2010) (“Whether to receive further evidence on a motion for reconsideration rests
in the sound discretion of the trial court.”). The CAB was entitled to rely upon its
own judgment, based upon the evidence of the employee’s work capacity, age,
education, and job training, to determine whether he had a diminished earning
capacity. See Appeal of Malo, 169 N.H. 661, 669 (2017). Moreover, we conclude
that such evidence was sufficient to support the CAB’s finding that the employee
had a diminished earning capacity as of the date of his treating physician’s
partial work-release letter.

The employee represents that he wished to return to work for the employer,
which required him to be able to lift more than 40 pounds. He argues that “a
claimant who is unable to return to his regular employment should not have his
benefits summarily reduced without being given the opportunity to supplement
them with light duty or part-time work.” He asks us to “find that an injured
worker’s disability benefits cannot be reduced until the employer proves that
work within his restrictions is actually available.”

On the contrary, assuming without deciding that the CAB “reduced” the
employee’s benefits, “[i]t is axiomatic that [an employee] is eligible to receive
disability benefits only as long as [his] injury arises out of and in the course of
employment.” Appeal of Hiscoe, 147 N.H. 223, 231 (2001) (quotation and
brackets omitted). “The logical corollary to this maxim is that the [employee’s]
entitlement to disability benefits lasts only as long as the disability that is caused
by the work-related injury.” Id. For this reason, we conclude that when there is
sufficient medical evidence that an employee’s work-related injury has
ameliorated to the point where he is released for work, the employer is not
required to establish that suitable alternative work is available. See id. To
construe RSA 281-A:48, III (Supp. 2018) otherwise would create the incongruous

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result of an employer being unable to reduce an employee’s disability benefits,
even when the employee is no longer fully disabled by the compensable
workplace injury. See Hiscoe, 147 N.H. at 231. Upon this record, we conclude
that the employee has not shown that the CAB’s decision is clearly unreasonable
or unlawful. See RSA 541:13.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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