Appeal of JoAnn Hoff

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0622, Appeal of JoAnn Hoff, the court on
February 24, 2021, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
claimant, JoAnn Hoff, appeals an order of the Compensation Appeals Board
(CAB) reducing her temporary disability compensation benefits to a fixed rate.
She primarily argues that the CAB erred by concluding that a change in
conditions occurred justifying the reduction in benefits. See RSA 281-A:48
(Supp. 2020). We affirm.

The following facts were found by the CAB or are supported by the
record. On October 23, 2017, the claimant was injured while working as a
licensed practical nurse for Valley Regional Hospital, Inc., the employer. She
thereafter reported experiencing lower back pain and numbness in her legs.
An MRI revealed a lumbar disc protrusion. The claimant began receiving
temporary disability benefits in November 2017. See RSA 281-A:28 (2010). On
December 14, 2017, Dr. Pikus performed surgery on the claimant to address
her leg symptoms. During follow-up appointments in early 2018, Dr. Pikus
consistently noted that the claimant’s leg symptoms had resolved, but her back
pain persisted. At a physical therapy appointment in May 2018 the claimant
stated: “I think I could go back to work and do desk work.”

In June 2018, the claimant returned to Dr. Pikus, reporting that her leg
symptoms had returned. He ordered another MRI, which showed no significant
negative changes compared with the previous one. Although the claimant
continued to report back pain, Dr. Pikus noted that the cause of her pain was
uncertain. Accordingly, he referred her to Dr. Mason for a physiatric
evaluation and assistance with returning to work.

The claimant also underwent an independent medical evaluation in June
2018, at the request of the respondent, the employer’s workers’ compensation
insurance carrier. See RSA 281-A:38 (Supp. 2020). Dr. Rudolf, who performed
the IME, reviewed the claimant’s medical records relating to her injury,
interviewed the claimant, and performed a physical examination. He noted
that the claimant reported ongoing back pain and numbness in her left foot
and leg. He also observed that she experienced back discomfort when standing
for short periods of time and walking for a distance longer than thirty feet, and
that she could not lift more than seven to ten pounds or easily climb or
descend stairs. The IME report notes the claimant’s statements that she could
sit for extended periods of time if she adjusted positions and that she sat
comfortably during the interview portion of the IME without displaying any
“obvious pain behavior.” Based upon his evaluation, Dr. Rudolf concluded that
the claimant had “a work capability doing a sit down occupation,” primarily
desk work, and that she should “avoid long periods of standing or walking, no
lifting or carrying greater than [ten] pounds.”

As a result of the IME, on July 11, 2018, the employer offered the
claimant a temporary, full-time position, as a patient access representative,
which would involve completing “a variety of secretarial tasks.” See RSA 281-
A:23-b (2010). A workers’ compensation task analysis, which was completed
by the employer to evaluate the physical requirements of the temporary
position, described the position as requiring occasional — between 1% and
33% of the time — standing and walking, and continuous — between 67% and
100% of the time — sitting, reaching, and fine motor skills. The claimant
testified at a subsequent Department of Labor (DOL) hearing that she neither
returned to work after receiving the offer, nor communicated with her employer
about the offer.

On August 8, Dr. Mason saw the claimant and opined that she could not
return to full duty work or her “regular job” as a licensed practical nurse. At
the DOL hearing, the claimant testified that she did not inform Dr. Mason of
the temporary position that she had been offered.

In September 2018, the respondent sent Drs. Pikus and Mason letters
with the employer’s temporary job offer and workers’ compensation task
analysis attached, requesting their opinion regarding whether the claimant was
capable of performing the job. Dr. Pikus opined that she could perform the job,
with a “sit/stand modification.” Dr. Mason opined that the claimant was
capable of performing the job, and noted: “please allow occasional break to
stand/stretch/reposition.”

In October 2018, the claimant sought and obtained appointments to be
seen separately by both Drs. Pikus and Mason, complaining of back pain. On
December 9, 2018, the claimant completed a functional capacity evaluation
(FCE) to determine her work ability. The report found that the claimant could
not maintain static standing without the support of one hand for more than
one minute, could maintain static standing with upper extremity support for
eight minutes, could tolerate dynamic standing for twenty-five consecutive
minutes, and was able to walk 400 feet with the assistance of a cane. The FCE
also found that she could sit for over an hour at once, and for twenty-minute
intervals thereafter. Based upon the claimant’s performance, the FCE report
concluded that she could not “return to office type nursing like she was doing
prior to [the] injury.” The report further concluded that the claimant “can
tolerate full[-]time employment at a sedentary physical demand level,” with

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“dynamic standing limited to [twenty-five] minutes at most occasionally in the
course of a work day” and walking “limited to 400[] [feet] at most at a time.”

The respondent requested a DOL hearing to review the claimant’s
benefits eligibility. See RSA 281-A:48. On January 31, 2019, a DOL hearing
officer held a hearing and thereafter concluded that the claimant was capable
of full-time sedentary work and, thus, that a change in conditions occurred
justifying a reduction in benefits. See id. The hearing officer reduced the
claimant’s benefits to a fixed partial rate. Following the DOL hearing, on
February 20, 2019, Dr. Mason saw the claimant and determined that she could
not return to work, but “was made aware of [the] FCE,” and, in the record for
that visit, wrote: “Please refer to this detailed assessment [regarding] work
abilities.”

The claimant appealed the DOL hearing officer’s decision to the CAB,
which conducted a de novo hearing. The CAB concluded that the claimant had
work capacity based upon the FCE, IME, Dr. Pikus’s approval of the job offer,
and Dr. Mason’s deferral to the FCE regarding work capacity. The CAB
therefore granted the respondent’s request to reduce the claimant’s
compensation to a fixed rate. The claimant filed a motion for reconsideration
and rehearing, in which she argued, in part, that any job offer she received
from the employer was not approved by her treating physicians, as required by
the relevant regulation. See N.H. Admin. R., Lab 504.04(g). The CAB denied
her motion, and this appeal followed.

We will not set aside or vacate the CAB’s decision except for errors of law,
unless the court is satisfied, by a clear preponderance of the evidence before it,
that the decision is unjust or unreasonable. Appeal of CNA Ins. Cos., 143 N.H.
270, 272 (1998); see RSA 541:13 (2007). Our review of the CAB’s factual
findings is deferential. Appeal of Hartford Ins. Co., 162 N.H. 91, 93 (2011); see
RSA 541:13 (“[A]ll findings of the [CAB] upon all questions of fact properly
before it shall be deemed to be prima facie lawful and reasonable.”).

The claimant argues that the CAB erred by concluding that a change in
conditions occurred under RSA 281-A:48, justifying a reduction in benefits.
We disagree.

“The two-step analysis for reducing or terminating a claimant’s benefits
is: (1) whether the claimant has experienced a change in conditions; and, if so,
(2) whether that change affected [her] earning capacity.” Appeal of Carnahan,
160 N.H. 73, 79 (2010) (quotations and emphasis omitted). Pursuant to RSA
281-A:48, I, the respondent was entitled to petition to review the claimant’s
award of benefits “upon the ground of a change in conditions.” When
petitioning to reduce the claimant’s benefits, the respondent was required to
“submit along with the petition medical evidence that the injured employee is
physically able to perform his or her regular work or is able to engage in gainful

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employment.” RSA 281-A:48, III. The medical evidence demonstrates that the
claimant was physically unable to return to her regular work as a licensed
practical nurse. Accordingly, to reduce her benefits, the respondent was
required to submit medical evidence demonstrating that the claimant could
engage in gainful employment. See id.

Gainful employment is defined as “employment which reasonably
conforms with the employee’s age, education, training, temperament and
mental and physical capacity to adapt to other forms of labor than that to
which the employee was accustomed.” RSA 281-A:2, X-a (2010). An
employee’s ability to engage in gainful employment is a change in conditions
justifying a reduction in benefits. Carnahan, 160 N.H. at 79.

“We have treated ‘gainful employment’ as ‘work capacity,’ or the
claimant’s ability to ‘perform some kind of work.’” Id. at 80. “‘Gainful
employment’ does not require a finding that the claimant is able to earn as
much as he or she earned at the time of injury . . . .” Id. Thus, a finding of
work capacity in this case is sufficient to support the CAB’s decision to reduce
the claimant’s benefits. See id.

Medical evidence in the record reflects a consensus among the
physicians who examined her that the claimant was capable of performing
sedentary work, and thus that she had work capacity. In particular, the IME
concluded that the claimant could perform sedentary work without standing or
walking for long periods of time and with limits on the weight she could lift.
The FCE similarly concluded that the claimant could tolerate full-time
sedentary employment, with similar restrictions on the amount she could lift
and a recommendation that she not stand for extended periods of time.
Furthermore, the record shows that the claimant is sixty-four years old, is a
licensed practical nurse, and has work experience as a patient access
representative and nurse. We therefore conclude that the record demonstrates
that the claimant had the ability to perform some kind of work — a sedentary
occupation which required minimal standing, walking, and lifting — and
supports the CAB’s determination that she was able to engage in gainful
employment. See RSA 281-A:48, III; see also RSA 281-A:2, X-a; Carnahan, 160
N.H. at 79-80.

According to the claimant, however, her condition worsened after the
IME and Dr. Mason kept her out of work following the DOL hearing,
demonstrating that she did not have work capacity. We find this argument
unavailing because, prior to the DOL hearing, the claimant did not make Dr.
Mason aware of her temporary, sedentary job offer and, after the hearing, Dr.
Mason referred to the FCE for the claimant’s work capacity, which stated that
she could perform sedentary work. The claimant also argues that the FCE
suggests that she does not have sedentary work capacity; this argument is

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contradicted by the FCE’s conclusion that the claimant “can tolerate full[-]time
employment at a sedentary physical demand level.”

The claimant also argues that the CAB erred by concluding that she has
earning capacity. Earning capacity refers to a claimant’s ability to compete in
the labor market. Appeal of Malo, 169 N.H. 661, 667 (2017). In this context,
earning capacity “is an objective measure of a worker’s ability to earn wages,”
and requires “considering the worker’s overall value in the marketplace, taking
into account such variables as [her] age, education and job training.” Id.
(quotations omitted). Based upon the claimant’s age, professional
accreditation, and work experience, which we described above, we conclude
that the record supports the CAB’s conclusion that the claimant has earning
capacity. See id. at 668-69.

The claimant further argues that the CAB erred by relying on the
temporary job offer to adjust her benefits rate. We disagree. The claimant
asserts that the job offer failed to comply with Rule 504.04(g), which requires
that, when offering temporary alternative work, the employer “offer a position
as approved by the treating physician” and the employee “demonstrate a
reasonable effort to comply.” N.H. Admin. R., Lab 504.04(g). Here, one of the
claimant’s treating physicians, Dr. Mason, approved the temporary job offer.
Dr. Mason noted her approval of the offer and wrote “please allow occasional
break to stand/stretch/reposition,” which is not a remarkable suggestion for
an individual performing a desk job. The approval of the job offer by one of her
treating physicians satisfies the regulation. See id. Furthermore, the record
does not suggest that the claimant “demonstrate[d] a reasonable effort to
comply” with the offered position by, for example, communicating to the
employer Dr. Mason’s suggestion and asking if the employer could
accommodate it, despite testimony from the employer at the DOL hearing
representing that it could accommodate the suggestion. Id. Instead, the
claimant did not return to work following the offer.

The claimant also argues that the CAB erred by determining that she
was “not particularly credible.” We note that “the weighing of the testimony
and the assessment of its credibility are solely within the province of the
[CAB].” Appeal of N.H. Dep’t of Health and Human Servs., 145 N.H. 211, 215
(2000) (quotation and brackets omitted). Evidence, namely Facebook posts
suggesting that the claimant may have been involved in a home baking
business, support the CAB’s credibility determination. See Carnahan, 160
N.H. at 77 (“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.” (quotation and brackets omitted)). Furthermore, the claimant fails to
articulate how the result would have changed had the CAB credited her
testimony. The claimant asserts that “her testimony . . . reflects what the FCE

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reports,” and the FCE reports that the claimant had the ability to perform
sedentary work.

Accordingly, we conclude that the CAB did not err by concluding that a
change in conditions occurred justifying the reduction in benefits.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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