2016-0038, Appeal of Jason Malo

sufficient to allow meaningful appellate review. We affirm. capacity; and (3) failing to make specific findings of fact and rulings of law determining that the change in his physical condition affected his earning improved since he sustained the original, compensable, work - related injury; (2) he argues that the CAB erred by: (1) finding that his physical condition had (2010),:48 (Supp. 2016); see also N.H. Admin. Rules, Lab 510.03. On appeal, disability rate to the diminished earning capacity rate. See RSA 281 - A:28 the rate at which his indemnity benefits are paid from the temporary total decision of the New Hampshire Compensation Appeals Board (CAB) reducing DALIANIS, C. J. The petitioner, Jason Ma lo (the claimant), appeals a

and orally), for the respondent s. Trombley & Kfoury, PA, of Manchester (Paul R. Kfoury, Jr. on the brief

brief and orally), for the petitioner. Normandin, Cheney & O ’ Neil, PLLC, of Laconia (James F. Laf rance on the

(New Hampshire Compensation Appeals Board)

No. 2016 - 0038 Compensation Appeals Board

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

and assessed his pain complaints as “subjective.” Lewis observed that the diagnosed the claimant with “[l] umb osa cral, facet, sacroiliac, piriformis strain” November p. 2 2014; the second IME was in June 2015. In the first IME, Lewis by David B. Lewis, D. O. See RSA 281 - A:38 (Supp. 2016). The first IME was in The claimant underwent two independent medical examinations (IMEs)

surgery at t hat time. narcotics” and is “deconditioned,” Salerni did not consider him a candidate for noted, was “fusion”; however, because the claimant is taking “high dose claimant’s original work injury. The claimant’s only surgical option, Salerni continued “to have refractory low back pain,” which Salerni attributed to the discectomy would not help him.” Salerni noted that the claimant has that the claimant did not have any “severe nerve compression, so [a] simple Salerni, M.D. in June p. 2 2015. Based upon the May 2015 MRI, Salerni observed surgery is not indicated. The last such evaluation was conducted by Anthony Three doctors have evaluated him for surgery and have opined that

avail. physical therapy, group therapy, acupuncture, an d opiate narcotics, all to no and received epidural steroid injections, “lumb a r medial branch blocks,” From April p. 2 2014 to September 2015, the claimant saw several providers

sided disc herniation” at L4 - L5. bulging disc annulus with a superimposed relative ly small posterolateral right post ero lateral left - sided disc herniation” at L3 - L4 and “a degenerating mildly in May p. 2 2015 showed that the claimant has “a small to moderate sized hepatis protrusion with associated annular tear,” also at L4 - L5. A second MRI . . . consistent with some degenerative disease” at L4 - L5, and a “small porta space, causing “likely mass effect upon the left L4 nerve root,” “disc desiccation posterolateral/foraminal disc protrusion” at the L3 - L4 intervertebral disc radi c ulitis.” An April 2014 MRI showed that he had a “prominent left The claimant’s injury was diagnosed as a lumbar strain with “left sided

the temporary total disability rate. i ndemnity benefits from respondent Acadia Insurance Co mpany (the carrier) at work again in late April p. 2 2014 because of pain. Thereafter, h e began receiving and, subsequently, was released to work with modifications. The claimant left that day and for the rest of the week, left work for treatment in early March, on an excavator using a large wrench and a blow torch. He continued working related, compensable injury. On that day, he injured his back while working equipment repair. On February 18, 2014, the claimant sustained a work respondent MB Tractor & Equ ipment (the employer), in July 2011, to do heavy mechanic for approximately 20 years before becoming employed full - time by has worked as a mechanic for most of his working life. He was a marine He completed the 11th grade and has a high school equivalency diploma. He The relevant facts follow. The claimant is approximately 4 p. 3 3 year s old. 3

on the respondents’ request in June 2015. In July, the hearing officer ruled in Lewis in November 2014. A department of labor hearing officer held a hearing weekly indemnity benefits,” based, in part, upon the work release provided by 2015, requesting a hearing “on the issue of the claimant’s ongoing eligibility for The respondents initiated workers’ compensation proceedings in April

psychologically deal with the back pain” and that he has “pain magnification.” work with his pain.” Jorgensen opined that the claimant is unable “to claimant] has extremely poor coping skills and that may explain his inability to stated that t here “has been discussion by other practitioners that [the not particularly concordant with the amount of pain that he has.” Jorgensen “truly seems to be disabling him completely,” the MRI, taken in April 2014, “is January 2015, Jorgensen observed that although the claimant’s back pain to the claimant’s physical condition “seems to be inhibiting his r ecovery.” In the pain itself.” Jorgensen noted that the “significant psychological overl [a] y” [his] psychologic[al] unwillingness to work through the pain and to get beyond opined in December 2014 that “a majority of [the claimant’s] problem [s] [are] Similarly, the claimant’s treating physician, Nathan Jorgensen, M.D.,

evaluated the claimant for surgery again in August 2015. st imulus [was] present.” Dirksmeier made identical observations when he elicit pain when [the claimant was] distracted,” and that “[o]verreaction to claimant’s “Waddell’s test was positive,” that the “[s]traight leg raise [did] not M.D., who evaluated the claimant for surgery in July 2014, observed that the some of Lewis’s findings and observations. For instance, Pete r J. Dirksmeier, Other clinicians who have examined the claimant have concurred with

duty work, “lifting in the 15 - 20# range occasionally.” claim ant to be at maximum medical improvement, capable of full - time light behaviors without evidence [of] true neurological deficits.” Lewis found the discontinued. Lewis observed that the claimant was exhibiting “greater pain t rue improvement,” is not working and that the narcotics should be “essentially medications including. . . an escalati ng dose of narcotics without “worsening.” He opined that the claimant’s current treatment, which is In the second IME, Lewis noted that the “Waddell signs” were

occasionally.” determined that the claimant could work “full t ime, lifting . . . 15 - 20# stability,” which makes “the situation worse.” Following the first IME, Lewis “is so focused on his pain that he is not allowing himself to improve his that “the findings on the MRI are mostly mild.” Lewis opined that the claimant examination of the claimant did “not show any sort of neurological deficit” and likely to be of psychological origin.” Lewis further observed that his physical occasionally used to identify patients whose back pain is not organic, i.e. more signs.” The respondents define “Waddell signs” as “[a]ny group of clinical tests claimant has a “heightened pain response” and that he exhibited “Waddell p. 4 4

The CAB denied the claimant’s motion, and this appeal followed. findings were insufficient as a matter of law because they were conclusory. longer classified as totally disabled.” The claimant also argued that the CAB’s “[e]vidence of a work release or work capacity does not establish tha t [he] is no the CAB’s finding that he is no longer totally disabled, observing that instead of at the temporary total disability rate. The claimant also challenged sufficient to justify paying him benefits at the diminished earning capacity rate, failed to identify any change in his physical condition or his economic condition The claimant moved for rehearing, asserting that the CAB’s decision

compensation.” claimant “continues to be eligible for the Diminished Earning Capacity rate of a re [sic] not upheld by any objective findings.” The CAB determined that the claimant] is totally disabled is completely bas ed on [his] subjective feelings and found during objective testing.” The CAB stated that “[t]he claim that [the a surgical candidate” and that “there are no anatomic issues that have been release and is not totally disabled.” The CAB observed that the claimant “is not submitted medical records, the CAB found that “the claimant has a work sole witness. Based upon its review of the claimant’s testimony and the conducted a de novo hearing in November 2015 at which the claimant was the The claimant appealed the hearing officer’s decision to the CAB, which

disability rate t o the diminished earning capacity rate. decision, the claimant’s benefits were reduced from the temporary total basis of medical and other evidence”). As a result of the hearing officer’s disabled person” that applies “in the absence of work opportunity and on the (defining the diminished earning capacity rate of benefits for a “partially the diminished earning capacity rate. See N.H. Admin. Rules, Lab 510.03 work opportunity,” the claimant was still entitled to compensation, but only at history, and the work release provided by Dr. Lewis, and the lack of evidence of that “[b]ased on the claimant’s testimony, educat ional background, work Having found a change in condition, the hearing officer then determined

provided by Lewis in November 201 p. 4 4. in the claimant’s physical conditi on based, in part, upon the work release condition.” See RSA 281 - A:48, I. The hearing officer impliedly found a change demonstrate that such a reduction or termination is warranted by a change in indemnity benefits, the carrier [or employer] bears the burden of proof to stated that “[i]n a request to reduce or terminate workers’ compensation disability rate to the diminished earning capacity rate. The hearing officer reduce the rate at which his benefits are paid from the temporary total sought either to terminate the claimant’s weekly indemnity b enefits, or to favor of the respondents. The hearing officer explained that the respondents p. 5 5

Appeal of Hiscoe, 147 N.H. 223, 231 (2001) (distinguishing between what must much as he or she earned at the t ime of injury.” Id. (quotation omitted); see “now able to earn, in suitable work under normal employment conditions, as that the claimant’s physical condition has improved such that he or she is his or her ability to perform work, the carrier or employer must demonst rate terminate a claimant’s benefits based upon a change of conditions related to of injury.” Appeal of Carnahan, 160 N.H. 73, 79 (2010) (quotation omitted). To under normal employment conditions, as much as he or she earned at the time compensation is whether the worker is now able to earn, in suitable work “The initial test for determining whether a claimant is entitled to

case is that there was a “change in conditions.” R SA 281 - A:48, I, III. The parties also agree that the respondents’ theory in this

employment. perform his or her regular work or is able to engage in gai nful medical evidence that the injured employee is physically able to compensation, the petitioner shall submit along with the petition III. If a petitioner files for reducing or for ending

. . . .

injury or disability, fraud, undue influence, or coercion. change in conditions, mistake as to the nature or extent of the review. . . an award of compensation. . . upon the ground of a I. Any party at interest. . . may petition the commissioner to

provides, in pertinent part: The parties agree that this case is governed by RSA 281 - A:48, which

16 p. 5 5 N.H. 226, 230 (2013). deferentially,” and “its statutory interpretation de novo.” Appeal of Phillips, court pursuant to RSA 541.”). “Thus, we review the factual findin gs of the CAB aggrieved by any order or decision of the [CAB] may appeal to the supreme RSA 541:13 (2007); see RSA 281 - A:43, I(c) (2010) (“Any party in interest

evidence before it, t hat such order is unjust or unreasonable. unless the court is satisfied, by a clear preponderance of the from shall not be set aside or vacated except for errors of law, facie lawful and reasonable; and the order or decision appealed questions of fact prop erly before it shall be deemed to be prima unreasonable or unlawful, and all findings of the [CAB] upon all any order or decision of the [CAB] to show that the same is clearly [T]he burden of proof shall be upon the party seeking to set aside

Our standard of re view is established by statute: p. 6 6

pertaining to [his] ability to compete in the labor market was his testimony that and entire work history as a mechanic, the only evidence in the record Alternatively, the claimant asserts that, “[a]side from his age, education

uphold it. See id. condition has improved is supported by competent evidence in the record, we has improved. Thus, because the CAB’s finding that the claimant’s phy sical experiences, support the CAB’s finding that the claimant’s physical condition MRI was not concordant with the amount of pain that the claimant January 2015 examination of the claimant after which he concluded that the that the claimant had significant psychological overlay, and (3) Jorgensen’s straight leg raise when distracted, (2) the December 2014 opinion of Jorgensen Dirksmeie r that the claimant was positive for Waddell signs and could do the Here, the IMEs conducted by Lewis, together with (1) the opinion of

could have been made.” Id. (quotation and brackets omitted). competent evidence in the record, upon which the CAB’s decision reasonably “The CAB’s findings of fact will n ot be disturbed if they are supported by record.” Appeal of Phillips, 1 p. 6 65 N.H. at 235 (quotation and brackets omitted). determine whether the findings are supported by com petent evidence in the diffe rently than did the CAB, or to reweigh the evidence, but rather to the CAB’s findings, our task is not to determine whether we would have found treating physician s was that his condition had become worse.” “In reviewing physical condition has improved. He contends that “the evidence from his The claimant first argues that the CAB erred when it found that his

the time of injury.” Appeal of Carnahan, 1 p. 6 60 N.H. at 80 (quotation omitted). work under normal employment conditions, as much as he or she earned at or employer need not s how that the claimant is “now able to earn, in suitable which his benefits are paid. To reduce a claimant’s compensation, the carrier terminate the claimant’s compensation, but rather seek to reduce the rate at However, on appeal, the respondents explain that they no longer seek to

education and job training.” Id. (quotation, brackets, and ellipsis omitt ed). overall value in the marketplace, taking into account such variables as his age, Determining a claimant’s earning capacity requires considering “the worker’s measure of a worker’s ability to earn wages.” Id. (quotation omitted). market. Appeal of Woodmansee, 150 N.H. p. 6 63, 68 (2003). It is “an objective “Earning capacity” refers to a claimant’s ability to compete in the labor

her p revious “earning capacity.” work, a carrier or employer must show that the claimant has regained his or to terminate a claimant’s benefits based upon his or her ability to perform disability is no longer causally related to her workplace injury). In other words, and what must be proved to terminate benefits because the claimant’s be proved to terminate benefits because the claimant is able to return to work p. 7 7

the claimant had a diminished earning ca pacity). that he was capable of gainful employment were tantamount to a finding that CAB’s findings that the claimant no longer had his prior earning capacity and earning capacity. Cf. Appeal of Carnahan, 160 N.H. at 80 - 81 (determining that compensation” are equivalent to a finding that the claimant has a diminished he “continues to be eligible for the Diminished Earning Capacity rate of Similarly, the CAB’s findings that the claimant “has a work release” and that finding is akin to a finding that the claimant’s physical condition has improved. conditio n s,” it found that the claimant was no longer “totally disabled.” This earning capacity.” Although the CAB did not use the phrase “change in condition s and because it “made no analysis or findings with respect to [his] The claimant faults the CAB for failing to make a finding of a change in

findings of fact and rulings of law sufficient to permit appellate review. CAB’s decision is not a paragon of clarity, we conclude that it sets forth specific of fact and conclusio ns of law, separately stated.” In this case, although the (1994). RSA 541 - A:35 (200 p. 7 7) requir es an agency decision to “include findings permit meaningful judicial review. See Appeal of Kehoe, 139 N.H. 24, 27 of law because it contains insufficient findings of fact and rulings of law to Finall y, the claimant argues that the CAB’s decision is flawed as a matter

claimant ha s a diminished earning capacity. hold that such evidence was sufficient to support the CAB’s finding that the evidence of his work capacity, age, education, and job training. Moreover, we whether the claimant now has a diminished earning capacity, given the id. Thus, the CAB was entitled to rely upon its own judgment to determine is able to compete in the open labor market is beyond the ken of the CAB. See that, because of his job skills and education, the determination o f whether he The claimant has not argued, and we cannot conclude as a matter of law,

CAB.” Appeal of CNA Ins. Co., 148 N.H. 31 p. 7 7, 324 (2002). whether he . . . can compete in the open labor market is beyond the ken of the “when, due to a claimant’s job skills and education, the determination as to establish a claimant’s earning capacity, although such testimony is required carrier or employer “generally does not need to rely upon expert testimony” to 80; see also Appeal of Woodmansee, 150 N.H. at 68. We have also held that a has regained hi s prior earning capacity. S e e Appeal of Carnahan, 160 N.H. at capacity, age, education, and job training is relevant to determine whether he To the contrary, we have held that evidence of a claimant’s work

establish that he has a diminished earning capacity. his work capacity, age, education, and “entire work history” is insufficient to MB Tractor [& Equipment].” In this w ay, the claimant implies that evidence of he ha d not looked for other work because he wanted to return to his job with p. 8 8

HICKS, CONBOY, and LYNN, JJ., concurred.

necessary to permit meaningful judicial review. credible or that it disbelieved his testimony.” However, s uch findings are not Jorgensen” and bec ause it “did not say or intimate that [the claimant] was not [sic] how it may have resolved the conflicting claims with respect to Dr. have adopted the opinion of Dr. Lewis over all the other medical providers, nor The claimant also faults the CAB because it “failed to explain how it may