2009-130, Appeal of Timothy Carnahan

The petitioner, Timothy Carnahan, appeals the October

Heather Silverstein on the brief, and Mr. Ewing orally), for the respondent. Desmarais, Ewing & Johnston, PLLC, of Manchester (Scott Ewing and

orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Gawryl & MacAllister, of Nashua (Jared O'Connor on the brief and

(New Hampshire Compensation Appeals Board)

No. 2009-130 editorial errors in order that corrections may be made before the opinion goes Compensation Appeals Board Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

THE SUPREME COURT OF NEW HAMPSHIRE

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as decision. p. 2 determination of Carnahan’s earning capacity. Neither party appealed this

of benefits. Carnahan appealed this decision to the CAB.

carrier’s request because the DOL hearing officer had not made a

appealed to the CAB. The CAB consolidated both appeals into a single

disability benefits already received, this decision was effectively a termination

Carnahan had a full-time sedentary work capacity, but ultimately denied the

disability benefits. The DOL hearing officer denied this petition and Carnahan

to temporary total disability benefits, and that based upon the length of result, the DOL hearing officer concluded that Carnahan was no longer entitled Hsu’s mistaken diagnosis in the March 2007 decision and concluded that that Carnahan’s physical capacity had improved since October 2007. As a In October 2007, the DOL hearing officer found that the CAB relied upon Dr. orthopedic surgeon, who had determined that Carnahan’s fusion was stable.

fusion was unstable. Carnahan sought reinstatement of his temporary total result, the CAB maintained Carnahan’s temporary total disability benefits. in physical condition, based upon Dr. Hsu’s opinion that Carnahan’s spinal petitioned the DOL for a new first-level hearing, arguing that he had a change

and “a significant earning capacity.” In addition, the DOL hearing officer found

fusion. The carrier relied upon the opinion of Dr. Anthony Salerni, an

change in Carnahan’s condition sufficient to merit a reduction in benefits. As a had a sedentary work capacity and that the carrier failed to demonstrate a appealed this decision to the CAB. While this appeal was pending, Carnahan ongoing pain, and physical limitations. The CAB further found that Carnahan

witnesses, Carnahan had, “at the least, a full-time, light duty work capacity” found that, based upon Carnahan’s testimony and testimony from vocational Carnahan’s benefits, based upon Dr. Hsu’s mistaken diagnosis of an unstable of continuing, work-related disability. In May 2008, the DOL hearing officer In January 2008, the carrier petitioned the DOL for a review of the extent

Carnahan’s benefits to the diminished earning capacity rate. Carnahan testimony supported the conclusion that he suffered from an unstable fusion, benefits due to a change in his condition. The DOL hearing officer reduced petitioned the New Hampshire Department of Labor (DOL) for a reduction of his

In August 2007, the carrier again petitioned the DOL to reduce

In March 2007, the CAB found that medical evidence and Carnahan’s benefits. In 2006, after Carnahan received vocational training, the carrier hearing.

From 2002 to 2006, Carnahan received temporary total disability

pain and mobility. In December 2001, Dr. Powen Hsu, a physiatrist, began resulting in a spinal bone fusion, but experienced persistent difficulties with disagree. p. 3 estoppel prohibited the CAB from reducing his benefits in October 2008. We argues that, without a change in his work capacity, res judicata and collateral

the same under RSA 281-A:48 (1999). Carnahan finally argues that under record.” employment, it erred because “gainful employment” and “earning capacity” are CAB determined that he had no earning capacity, but was capable of gainful

sedentary or light duty work capacity, barred a later reduction in benefits. He

appeal followed. Carnahan requested a rehearing, which the CAB denied in January 2009. This diminished earning capacity rate, effectively terminating his benefits. determine whether the findings are supported by competent evidence in the

sedentary or light duty work capacity. Carnahan also contends that when the

unjust or unreasonable.” determinations in August 2006 and May 2008, that Carnahan had a full-time

permission to reduce Carnahan’s temporary total disability benefits to the differently than did the [CAB], or to reweigh the evidence, but rather to

previously found in August 2006 and May 2008 that he had a full-time

satisfied by a clear preponderance of the evidence before us that the decision is We first address Carnahan’s argument that the DOL’s and the CAB’s

the burden of proof. Id.; Appeal of Jackson, 142 N.H. 204, 206 (1997).

Dean Foods, 158 N.H. at 474 (quotations omitted). Carnahan bears

his previous job and earning capacity. As a result, the CAB granted the carrier likely capable of returning to “gainful employment,” but unlikely to return to 541:13 (2007). “[O]ur task is not to determine whether we would have found condition warranting reduced benefits. The CAB concluded that Carnahan was The CAB’s factual findings are prima facie lawful and reasonable. Id.; RSA sufficiently to reduce his benefits because both the DOL and the CAB had Appeal of Dean Foods, 158 N.H. 467, 471 (2009).

“We will overturn the CAB’s decision only for errors of law, or if we are

upon video surveillance evidence taken after the May 2008 DOL hearing. Appeal of Staniels, 142 N.H. 794, 796-97 (1998), the CAB erroneously relied

extent of Carnahan’s disability and that there had been a change in his judicata and collateral estoppel from finding that his condition had changed Carnahan argues that in October 2008, the CAB was barred by res

demonstrated that there had been a mistake in the prior determination of the limiting,” uncooperative, and not credible. The CAB ruled that the carrier had surveillance evidence and vocational testimony, the CAB found Carnahan “self- Carnahan “was capable of at least full-time sedentary work.” Based upon video The CAB held a de novo hearing and in October 2008, concluded that p. 4 We disagree.

capacity, as a change in conditions, before it determined his earning capacity.

contradictory decision; and (2) failed to identify any change in his vocational earning capacity, but was capable of gainful employment, an inherently finding is erroneous because the CAB: (1) improperly found that he had no

collateral estoppel. of returning to full-time gainful employment.” Carnahan argues that this authority to reopen and its action was not barred by either res judicata or

capacity, but . . . met its burden of proof to show that the claimant is capable 2008 decision corrected this mistake, the CAB properly exercised its statutory proof that the claimant is capable of returning to his previous job and earning 2008 decision, the CAB found that the carrier “failed to meet its burden of

RSA 281-A:48, I, as a proper ground for review. Because the CAB’s October that its error in March 2007 constitutes the type of mistake contemplated in no earning capacity, but was capable of gainful employment.” In its October capable of returning to full-time gainful employment. We agree with the CAB

language found in the statute and where possible, we ascribe the plain and novo. Kenison v. Dubois, 152 N.H. 448, 451 (2005). “[W]e first examine the The interpretation of a statute is a question of law, which we review de CAB continuous jurisdiction. See A:48, the CAB improperly reduced his benefits because it found that he “had exception to the finality otherwise accorded to CAB decisions and gives the March 2007 decision. The CAB then went on to determine that Carnahan was nature or extent of the injury or disability.” This plain language provides an

employment” and “earning capacity” have the same meaning under RSA 281- Carnahan’s injury and disability upon which the CAB erroneously relied in its We next address Carnahan’s argument that because “gainful on several grounds, including a “change in conditions” and “mistake as to the II. RSA 281-A:48

agency from exercising its statutory power to correct a mistake of law”). exercise continuous jurisdiction . . . res judicata will not apply to prevent the

demonstrated that there had been a mistake as to the nature and extent of may petition the commissioner to review a denial or an award of compensation” October 2008 decision, the CAB determined that the carrier sufficiently reduce his benefits without first finding a change in work capacity. In its The CAB’s October 2008 decision, however, did not, as Carnahan claims,

(1979) (finding that “when . . . the legislature has directed the agency to

I, specifically states that “[a]ny party at interest with regard to an injury . . . 16 (2002); Appeal of Hooker, 142 N.H. 40, 43 (1997). However, RSA 281-A:48, decisions in workers’ compensation cases. Appeal of Wingate, 149 N.H. 12, 15- The doctrines of res judicata and collateral estoppel apply to final agency economic as well as a medical component.” Woodmansee p. 5 physical condition, . . . disability in the compensation sense has both an

inquiry into change in condition for reopening purposes is claimant’s relative is able to engage in gainful employment. injured employee is physically able to perform his or her regular work or

change affected his earning

employment, or to maintain his earlier earning level,” is also considered a of injury.” Appeal of Woodmansee § 131.03[1][e] (2009). “[A] change in claimant’s ability to get or hold under normal employment conditions, as much as he or she earned at the time fraud, undue influence, or coercion. (quotation omitted); see conditions, mistake as to the nature or extent of the injury or disability, also 8 L. Larson, Workers’ Compensation Law compensation . . . by filing a petition . . . upon the ground of a change in, 150 N.H. at 67

“Although the beginning point and usually the main concern of an petitioner shall submit along with the petition medical evidence that the

claimant experienced a change in conditions”; and, if so, (2) “whether that analysis for reducing or terminating a claimant’s benefits is: (1) “whether the

compensation is “whether the worker is now able to earn, in suitable work The initial test for determining whether a claimant is entitled to 1965, may petition the commissioner to review a denial or an award of

III. If a petitioner files for reducing or for ending compensation, the

which can be fairly implied therefrom.” Appeal of Hiscoe. . . . injured employee . . . is governed by the express statutory language and that compensation statute, and the nature and extent of compensation to the

“purely statutory.” McKay v. N.H. Compensation Appeals Bd.

I. Any party at interest with regard to an injury occurring after July 1,

RSA 281-A:48 provides, in pertinent part:

(2001) (quotation omitted).

727 (1999). “We are the final arbiter of the meaning of the workers’

The rights and remedies provided by the workers’ compensation law are

to include.” Id. language of the legislation nor add words which the lawmakers did not see fit indications of legislative intent.” Id. “Courts can neither ignore the plain language is plain and unambiguous, we need not look beyond [it] for further Trust, 159 N.H. __, __ (decided December 16, 2009). “When a statute’s ordinary meanings to words used.” Appeal of Garrison Place Real Estate Inv. claimant’s benefits. Jackson p. 6 economically, which satisfied the first prong of the analysis for modifying a

finding that Carnahan experienced a change in conditions, both physically and

credible, and uncooperative. These findings supported the CAB’s ultimate complaints were “likely exaggerated,” and that he was “self-limiting,” not work” and “gainful employment.” The CAB also determined that his pain

capacity, it is not dispositive. Woodmansee to “perform some kind of work,” and while it may be relevant to earning have treated “gainful employment” as “work capacity,” or the claimant’s ability capacity before it determined his earning capacity. In its October 2008 determined that he had no earning capacity. In fact, the CAB found that Woodmansee Further, Carnahan is factually incorrect when he argues that the CAB case is sufficient to support the CAB’s decision to reduce Carnahan’s benefits.

Woodmansee claimant’s “age, education, and job training,” the terms are distinct.

earned at the time of injury.” Woodmansee

other forms of labor than that to which the employee was accustomed.” We We also disagree that the CAB did not find a change in his vocational

“earning capacity” do not have the same meaning under RSA 281-A:48. In injury, as Carnahan asserts. Thus, the finding of gainful employment in this that the claimant is able to earn as much as he or she earned at the time of

, 150 N.H. at 67. “Gainful employment” does not require a finding employment.” McKay

N.H. at 206. Thus, while these two definitions overlap by considering the

suitable work under normal employment conditions, as much as he or she

education, training, temperament and mental and physical capacity to adapt to 2009) as “employment which reasonably conforms with the employee’s age, inherently contradictory because we conclude that “gainful employment” and However, “gainful employment” is defined in RSA 281-A:2, X-a (Supp.

and quotation omitted). account such variables as his age, education and job training.” Id. (brackets reference “the worker’s overall value in the marketplace, . . . taking into physically able to perform his or her regular work or is able to engage in gainful We also held that a determination of a claimant’s earning capacity must

worker’s ability to earn wages” and “whether the worker is now able to earn, in

, we defined “earning capacity” as “an objective measure of a

We disagree that the CAB’s findings in its October 2008 decision are

change in conditions may also be demonstrated if “the injured employee is been classified as a change in the claimant’s earning capacity. Id. Finally, a remained unchanged.” Woodmansee, 150 N.H. at 67. This type of change has change in conditions, “even though claimant’s physical condition may have that he was “self-limiting” and “capable of at least full-time sedentary work.” p. 7 determined that Carnahan’s pain complaints were “likely exaggerated,” and do.” Furthermore, based upon the weight of all of the evidence, the CAB

“that the claimant can do much more than he has testified that he is able to

October 2008 decision, the CAB found that the video clearly demonstrates

into the DOL; and (2) Carnahan setting up a backyard pool in July 2008. In its 2008 DOL hearing, Carnahan walking normally in his yard before later limping DOL, and the CAB. The video showed two images: (1) on the day of his May

vocational rehabilitation, finding that the claimant was not totally disabled and

disabled and failed to cooperate with vocational rehabilitation. Id

relate back to his condition on the date of his May 2008 hearing. physical activity than he had previously reported to his medical providers, the

earning capacity rate. Carnahan appealed that decision to the CAB. 1994, a DOL hearing officer reduced the claimant’s benefits and terminated his

total disability benefits on the grounds that the claimant was no longer totally In Staniels

that the CAB erroneously relied upon the video evidence because it did not merit. surveillance evidence to demonstrate that Carnahan was capable of more Relying upon Appeal of Staniels

DOL hearing officer then reduced Carnahan’s benefits to the diminished a full-time light duty work capacity and a significant earning capacity. The physical condition had improved, and, as a result, that Carnahan had at least

reasonably and lawfully. Woodmansee

Accordingly, and in light of the above discussion, this argument is without During the CAB’s September 2008 hearing, the carrier introduced video

diminished earning capacity rate, see

In May 2008, the DOL hearing officer concluded that Carnahan’s

III. Videotaped Surveillance Evidence language of RSA 281-A:48, and in accordance with case law, it acted Carnahan’s benefits in its October 2008 decision, as prescribed by the plain earning capacity. Because the CAB followed the proper analysis for modifying he asserts, but determined that he did not have his previous earning capacity. October 2008, the CAB did not find that Carnahan had no earning capacity, as it found that the carrier failed to establish that he had an earning capacity. In

Finally, Carnahan argues that the CAB improperly applied the

at 206.

time gainful employment; it therefore concluded that he had a diminished Carnahan no longer had his previous earning capacity, but could obtain full- p. 8 8

forthcoming in his testimony regarding his actual physical abilities.” See as of May 200 p. 8 8 and determined that the claimant had been “less than

permitted under our reasoning in Staniels

CAB properly considered the video as evidence of Carnahan’s physical capacity

video only as evidence of Carnahan’s physical condition in May 200 p. 8 8, as grounds for a new petition to the DOL. Id

hearing officer decided the same issue. See BRODERICK, C.J., and DALIANIS and CONBOY, JJ., concurred.

Affirmed. Carnahan’s physical capacity in May 200 p. 8 8. In its October 2008 decision, the

the contrary, a fair reading of this decision shows that the CAB considered the evidence to determine Carnahan’s physical condition as of October 200 p. 8 8. On claimant’s condition as a result of the 1995 surgery could only constitute nothing in the CAB’s October 2008 decision that suggests that it used the video ours, to weigh the evidence in the first instance” (quotation omitted)). There is Woodmansee, 150 N.H. at 68 (finding that “[i]t is the board’s province, not

as relevant only to the issue of the claimant’s condition in 1994, when the DOL

Here, the issue decided by the DOL hearing officer in May 200 p. 8 8 was

future condition” (quotations omitted)). We further held that any change in the [employee] at the time it was entered and is not a judgment as to the claimant’s officer’s decision is “an adjudication as to the condition of the injured

We held that the CAB properly limited its consideration of this evidence

matter. Id. The claimant appealed. Id. claimant’s condition in 1994, when the DOL hearing officer first considered the Id. at 796. The CAB considered this evidence only as it related to the evidence of his 1995 back surgery to establish his currently disabled condition. CAB. Id. During the CAB’s 1996 de novo hearing, the claimant introduced lacked motivation to improve. Id. Both parties appealed this decision to the