Appeal of James Lowry

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0204, Appeal of James Lowry, the court
on April 11, 2022, 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).
The petitioner, James Lowry (claimant), appeals a decision of the New
Hampshire Compensation Appeals Board (CAB) reducing his indemnity
benefits from the temporary total disability rate to the diminished earning
capacity rate. See RSA 281-A:28 (2010), :48 (Supp. 2021); see also N.H.
Admin. Rules, Lab 510.03. On appeal, he argues that the evidence failed to
prove that he has an earning capacity. We affirm.

We will not disturb the CAB’s decision absent an error of law, unless we
find it to be unjust or unreasonable. Appeal of LeBorgne, 173 N.H. 488, 493
(2020); see RSA 541:13 (2021). All findings of the CAB upon questions of fact
properly before it are deemed prima facie lawful and reasonable. RSA 541:13.
We will uphold the CAB’s factual findings if they are supported by competent
evidence in the record. Appeal of Dean Foods, 158 N.H. 467, 474 (2009). As
the appealing party, the claimant has the burden of demonstrating that the
CAB’s decision was erroneous. Appeal of LeBorgne, 173 N.H. at 493.

The claimant is a 37-year-old high school graduate who worked in
landscaping for 12 to 15 years. On February 16, 2018, he sustained a work-
related, compensable injury to his lower back. He has not returned to work
since his injury. From February 17, 2018 to September 24, 2020, he received
indemnity benefits at the temporary total disability rate.

In 2018, the employer’s workers’ compensation insurance carrier sought
to terminate or reduce the claimant’s indemnity benefits from the temporary
total disability rate to the diminished earning capacity rate based upon a June
29, 2018 independent medical examination (IME) by Victor Gennaro, D.O., who
opined that the claimant could perform sedentary work. The carrier submitted
a January 14, 2019 labor market survey from Laurie Martin, a certified
vocational rehabilitation counselor, identifying sedentary and light duty jobs
that the claimant could perform. By decision dated July 12, 2019, the CAB
denied the carrier’s request.

In 2020, the carrier again sought to terminate or reduce the claimant’s
benefits to the diminished earning capacity rate, based upon a July 2, 2020
IME by Kenneth Polivy, M.D., who opined that the claimant could perform light
duty work. At the carrier’s request, Martin prepared an “Updated Labor Market
Survey Report” dated September 2, 2020 identifying eleven jobs that were
within the claimant’s physical capacity and within 50 miles of his residence.
According to Martin, “light duty” work requires greater work capacity than
sedentary work. A Department of Labor hearing examiner reduced the
claimant’s benefits to the diminished earning capacity rate. On de novo
appeal, the CAB found Gennaro’s 2019 opinion more persuasive than Polivy’s
2020 opinion or the opinions of the claimant’s attending providers and
concluded that the claimant is capable of sedentary work.

The CAB stated that Martin’s 2020 report included four sedentary jobs,
adding that, regardless of the contents of the report, it could rely upon
Gennaro’s full-time, sedentary work release, and the claimant’s “earning
history, education, interpersonal communication skills, and acknowledged
ability to learn to use a computer” to find that he has an earning capacity. The
CAB concluded that the claimant has an earning capacity to do sedentary
work. On appeal, the claimant does not dispute that he has a sedentary duty
work capacity. Rather he argues that the evidence did not establish that he
has an earning capacity.

“Work capacity and earning capacity measure different things.” Appeal
of Woodmansee, 150 N.H. 63, 67 (2003). “Work capacity refers to whether the
claimant may now be able to perform some kind of work . . . while earning
capacity refers to the claimant’s ability to compete in the open labor market.”
Id. at 67-68. The claimant first argues that the CAB erred in describing four of
the eleven jobs listed in Martin’s 2020 report as sedentary when, he asserts,
they were light duty jobs. Assuming, without deciding, that the CAB
misunderstood the light duty requirements of the four jobs, we disagree with
the claimant’s assertion that the availability of these four jobs “formed the
basis for [its] conclusion, as lay people, that there were sedentary jobs
available.” In its order, the CAB correctly noted that, pursuant to our decision
in Appeal of Malo, it “need not rely on information provided” in a labor market
survey to conclude that the claimant has an earning capacity.

In Appeal of Malo, we held that “the CAB was entitled to rely upon its
own judgment to determine whether the claimant now has a diminished
earning capacity, given the evidence of his work capacity, age, education, and
job training.” Appeal of Malo, 169 N.H. 661, 669 (2017). In this case, the CAB
noted that the claimant “participated in the approximately two-hour hearing
from his home via computer,” that he “communicated effectively in response to
questions from the participating attorneys,” and that he “testified that he is
able to type and is functional with Microsoft Word software.” “Relying on
Dr. Gennaro’s full time, sedentary work release, the [CAB] concluded that entry
level, sedentary jobs exist in the open labor market that would be suitable for a
person with the claimant’s earning history, education, interpersonal
communication skills, and acknowledged ability to learn to use a computer.”

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 We disagree with the claimant’s assertion that, because Martin did not
meet with him to assess his interpersonal communication skills or his ability to
learn computer skills, the evidence was insufficient to support the CAB’s
decision. Although we recognized in Malo that there may be cases in which,
“due to a claimant’s job skills and education, the determination as to whether
he can compete in the open labor market is beyond the ken of the CAB,” 169
N.H. at 668 (quotation and ellipsis omitted), this is not such a case, and we
reject the claimant’s arguments to the contrary. As in Malo, the CAB was
entitled to rely upon its own judgment to determine whether the claimant has a
diminished earning capacity, based upon his work capacity, age, education,
and employment experience. See id. at 669.

The claimant also argues that it was error for the CAB to conclude that
he has an earning capacity when, he asserts, Martin’s report proved that there
were no sedentary jobs available. The record does not support the claimant’s
argument. Martin testified at the CAB hearing that, in preparing her 2020
report, she focused on light duty jobs because the most recent IME concluded
that the claimant was capable of light duty work. In her previous report,
Martin focused on sedentary jobs because, at that time, the most recent IME
found that the claimant was capable of sedentary work. Martin testified that
the claimant “could still perform those [sedentary] jobs.” Under these
circumstances, Martin’s 2020 report cannot reasonably be construed as proof
that no sedentary jobs were available. We conclude that there is sufficient
evidence in the record to support the CAB’s conclusion that the claimant has
an earning capacity. See id.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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