Appeal of JoAnn Hoff

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0329, Appeal of JoAnn Hoff, the court on
September 8, 2022, issued the following order:

Having considered the parties’ briefs and the record submitted on appeal,
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) denying her request to increase her indemnity benefits from a
fixed partial rate to the temporary total disability rate. On appeal, the claimant
argues that the CAB erred by failing to find a change in conditions justifying an
increase in her benefits. We affirm.

The following facts derive from our non-precedential order in the
claimant’s prior appeal and the record submitted in this appeal. See Appeal of
JoAnn Hoff, Case No. 2019-0622, (non-precedential order), 2021 WL 717788
(N.H. Feb. 24, 2021). The claimant was injured in October 2017 while working
as a licensed practical nurse for the employer, Valley Regional Hospital, Inc.
Id. (order at 1). She subsequently reported experiencing lower back pain and
numbness in her legs. Id. An MRI revealed a lumbar disc protrusion. Id. The
claimant began receiving indemnity benefits at the temporary total disability
rate in November 2017. See id.

In December 2017, Dr. Pikus performed a discectomy on the claimant’s
lower back, which proved to be partially successful. See id. In June 2018, the
claimant returned to Dr. Pikus, reporting that her leg symptoms had returned.
Id. Dr. Pikus referred her to Dr. Mason for a physiatric evaluation and
assistance in returning to work. Id.

Also in June 2018, the claimant underwent an independent medical
evaluation (IME) at the request of the respondent, AIM Mutual – NH Employers
Ins. Co., the employer’s workers’ compensation carrier. Id. The orthopedic
surgeon performing the IME concluded that the claimant had “a work
capability doing a sit down occupation.” Id. at 2. He advised that she should
“avoid long periods of standing or walking” and that she should not lift or carry
more than 10 pounds. Id. at 2. He further opined that the claimant’s “work
capability would be primarily sedentary, and desk work.”

Consistent with the IME, the employer offered the claimant a temporary,
full-time position as a patient access representative in July 2018. Id. The
position was described 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. Id.

The surgeon who conducted the IME opined that the claimant was
capable of performing this temporary position with no modifications. Dr. Pikus
and Dr. Mason agreed that the claimant was capable of performing this
temporary position; however, Dr. Pikus advised that she needed a “sit/stand
modification,” and Dr. Mason advised that she needed occasional breaks to
reposition. The claimant neither returned to work after receiving the offer nor
communicated with the employer about the offer. Id.

In December 2018, the claimant completed a functional capacity
evaluation (FCE) to determine her work ability. Id. The report stated that the
claimant could tolerate 25 minutes of consecutive dynamic standing, but could
walk only 400 feet for five minutes with a cane. Id. The report further stated
that the claimant “performed at a sedentary physical demand level,” and that
her sitting tolerance “was limited to 1 hour 16 minutes initially but declined to
20 minutes at a time.” According to the report, the claimant could not “return
to office type nursing like she was doing prior to injury,” but she could “tolerate
full time employment at a sedentary physical demand level,” although she
might “benefit from starting at part time transitioning to full time to promote
successful reintegration into the work force.”

Thereafter, the carrier requested a Department of Labor (DOL) hearing to
review the claimant’s eligibility for benefits. Id. at 3. A DOL hearing officer
held the hearing on January 31, 2019, and concluded that the claimant was
capable of full-time sedentary work and, thus, that a change in conditions had
occurred, which justified reducing her benefits to a fixed partial rate. See id.
The claimant appealed the hearing officer’s decision to the CAB, which, in
August 2019, following a de novo evidentiary hearing, similarly concluded that
she had a work capacity and, therefore, granted the carrier’s request to reduce
her compensation to a fixed partial rate. See id. The claimant appealed the
CAB’s decision to this court. Id. We affirmed the CAB’s decision. Id. at 6.

While her appeal of the CAB’s August 2019 decision was pending, the
claimant requested a DOL hearing on her claim that her condition had
worsened since the January 31, 2019 DOL hearing, justifying a return to
indemnity benefits at the temporary total disability rate. See RSA 281-A:48
(Supp. 2021). The DOL held the requested hearing in July 2020 at which the
carrier argued that the claimant’s medical condition had improved rather than
worsened. The carrier also argued that the claimant was no longer entitled to
indemnity benefits because she had retired. The hearing officer found
sufficient evidence to terminate the claimant’s indemnity benefits.

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 The claimant appealed this DOL decision to the CAB, which conducted a
de novo evidentiary hearing in April 2021. The CAB rejected both the carrier’s
assertion that the claimant’s condition had improved and the claimant’s
assertion that it had worsened. Therefore, the CAB ordered the carrier to
continue paying indemnity benefits to the claimant at a fixed partial rate. The
claimant unsuccessfully moved for reconsideration, and this appeal followed.

Our standard of review of CAB decisions is established by statute. See
Appeal of Hartford Ins. Co., 162 N.H. 91, 92 (2011); RSA 541:13 (2021). All
findings of the CAB upon all questions of fact properly before it are deemed
prima facie lawful and reasonable. RSA 541:13. Accordingly, our review of the
CAB’s factual findings is deferential. Appeal of Hartford Ins. Co., 162 N.H. at
93. “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
Carnahan, 160 N.H. 73, 77 (2010) (quotation and brackets omitted). As the
appealing party, the claimant has the burden of demonstrating that the CAB’s
decision is reversible. See Appeal of Doody, 172 N.H. 802, 806 (2020). We will
not disturb the CAB’s decision absent an error of law, or unless, by a clear
preponderance of the evidence, we find it to be unjust or unreasonable. Id. at
805; see RSA 541:13.

On appeal, the claimant first argues that the CAB erred by concluding
that there was no change in conditions justifying an increase in her indemnity
benefits. See RSA 281-A:48, I, II. We disagree.

“The initial test for determining whether a claimant is entitled to
compensation is whether the worker is now able to earn, in suitable work
under normal employment conditions, as much as he or she earned at the time
of injury.” Appeal of Carnahan, 160 N.H. at 79 (quotation omitted). RSA 281-
A:48, I, allows for review of a workers’ compensation award or the denial of
such an award based upon “a change in conditions.” RSA 281-A:48, I.

A change in conditions for the purposes of RSA 281-A:48, I, refers to a
change in the claimant’s physical condition or ability to engage in gainful
employment. See Appeal of Carnahan, 160 N.H. at 79. Gainful employment is
statutorily defined to mean “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); see Appeal of Carnahan, 160 N.H. at
80. We have referred to a claimant’s ability to engage in gainful employment as
the claimant’s work capacity. See Appeal of Carnahan, 160 N.H. at 80.

In order for a carrier to reduce or terminate a claimant’s benefits, the
carrier must show that the claimant’s physical condition or work capacity
improved and that the change increased the claimant’s earning capacity. See

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id. at 79-80. Conversely, for a claimant to obtain an increase in benefits, the
claimant must show that the claimant’s physical condition or work capacity
deteriorated and that the deterioration decreased the claimant’s earning
capacity. See id. Earning capacity is “an objective measure of a worker’s
ability to earn wages.” Id. at 80 (quotation omitted). Determining earning
capacity requires looking at “the worker’s overall value in the marketplace,
taking into account such variables as [his or her] age, education and job
training.” Id. (quotation and ellipsis omitted). The claimant’s work capacity is
relevant to the claimant’s earning capacity, but is not dispositive. Id.

In the claimant’s prior appeal, we concluded that the record supported
the CAB’s finding that the claimant had “the ability to perform some kind of
work,” specifically, “a sedentary occupation which require[s] minimal standing,
walking, and lifting.” Appeal of JoAnn Hoff, Case No. 2019-0622, (non-
precedential order at 4), 2021 WL 717788 (N.H. Feb. 24, 2021). We observed
that “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,” and that the “FCE similarly concluded that [she] could
tolerate full-time sedentary employment, with similar restrictions.” Id. (order at
4).

The claimant argues that, after the January 31, 2019 DOL hearing, her
work capacity deteriorated such that she no longer has any work capacity. The
record submitted on appeal does not support this contention. Indeed, as we
noted in Appeal of JoAnn Hoff, after the January 31, 2019 hearing, Dr. Mason
deferred to the FCE for the claimant’s work capacity, “which stated that she
could perform sedentary work.” Id. Additionally, in June 2020, Dr. Mason
signed a workers’ compensation medical form explicitly releasing the claimant
to part-time work with modifications.

Based upon our review of the record submitted on appeal, we conclude
that it supports the CAB’s finding that the claimant continues to have the
capacity to work in “a sedentary occupation which require[s] minimal standing,
walking, and lifting.” Id. (order at 4). To the extent that the evidence before the
CAB was conflicting, it was for the CAB to resolve those conflicts in the
evidence in the first instance. See Appeal of Doody, 172 N.H. at 808. The
claimant contends that her lack of work capacity means that she also lacks
any earning capacity; however, because we have rejected the premise of that
argument, we necessarily reject the argument itself. See Appeal of Carnahan,
160 N.H. at 80 (explaining that work capacity and earning capacity are distinct
terms and that although work capacity is relevant to earning capacity, it is not
dispositive).

The claimant next argues that the carrier should have been precluded
either by estoppel or by the law of the case doctrine from arguing that her work
capacity improved after the January 31, 2019 hearing. We need not address

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these arguments because the CAB rejected the carrier’s argument that the
claimant’s work capacity had improved, and the carrier has not appealed that
ruling.

Alternatively, the claimant asserts that her benefits should be paid at the
diminished earning capacity rate, instead of at a fixed partial rate. She argues
that the fixed partial rate was based upon the temporary job her employer
offered her in July 2018, and that there was no evidence before the CAB that
this job remained available. However, as the carrier correctly observes, as the
party requesting the DOL hearing, the claimant had the burden of proof on this
issue, and presented no evidence that the job was no longer available. See
Appeal of Elliott, 140 N.H. 607, 610 (1996) (“The burden of proof of showing a
change in condition[s] is normally on the party, whether claimant or employer,
asserting the change . . . . ” (quotation omitted)); Johnson v. Aetna Life &
Casualty Co., 131 N.H. 698, 702 (1989) (explaining that, when seeking an
increase in benefits based upon a change in conditions, the claimant “bears the
burden of proving a ‘change in conditions’” (decided under prior law)). Under
these circumstances, we uphold the CAB’s determination that the carrier shall
continue to pay the claimant’s indemnity benefits at the fixed partial rate. In
light of our decision, we necessarily deny the claimant’s request that she be
awarded prevailing party attorney’s fees and costs for this appeal. See RSA
281-A:44 (Supp. 2021).

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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