In this recent decision from the New Hampshire Supreme Court, TKCK was able to uphold a Compensation Appeals Board (“CAB”) decision which limited the employee’s entitlement to partial disability. Attorney James O’Sullivan handled the case at the Department of Labor and the Compensation Appeals Board, and Attorney Robert Martin handled the case on appeal to the New Hampshire Supreme Court.
The Court's significant findings were:
(1) an issue on appeal not properly preserved by the employee must be dismissed;
(2) once the insurer shows the employee is medically released to work, the employer is
required to show that alternative work is available
for a diminished earnings capacity finding
The employee injured his shoulder at work in February 2018. The employer and insurer denied the case from the outset. At the underlying Department of Labor (“DOL”) hearing, the employee was awarded total disability. We appealed the DOL decision, and the case was tried
before the Compensation Appeals Board. At CAB, we introduced medical evidence from the treating physician which released the employee to modified duty work. However, this medical record was dated
the initial DOL hearing. Following the
hearing, CAB issued a decision awarding the employee only partial disability benefits as of the date of the treating physician’s work release, based on a finding of a diminished earnings capacity. The employee appealed the CAB hearing to the New Hampshire Supreme Court.
At the Supreme Court, the employee argued that he was entitled to total disability, and that CAB erred on a number of issues including CAB’s reliance on the treating physician’s medical record post-dating the initial DOL hearing, the reduction of the employee’s benefits to partial disability, and the finding of a diminished earnings capacity without a job offer. Relying on Supreme Court jurisprudence regarding the rules of appellate procedure, we were able to procedurally dismiss almost all of the employee’s appellate issues. We argued that the employee had failed to properly preserve a number of the issues that he raised on appeal by failing to specify those issues in his motion for reconsideration at CAB. The Supreme Court agreed, finding that the employee’s appeal was limited only to the specified grounds stated in his motion for reconsideration. Thus, the Court found that the issues regarding the admission of the medical record post-dating the DOL hearing and the scope of the hearing notice were waived by failure to preserve.
The Court then addressed the one properly preserved issue on appeal—whether CAB erred by awarding only partial disability based on a diminished earnings capacity. The Court found that there was sufficient evidence for CAB to find a diminished earnings capacity, including evidence of the employee’s work capacity, age, education, and job training. The employee argued that his benefits could not be reduced to partial unless the employer proves that work within his restrictions is readily available. In response, we argued that medical evidence of a work release is sufficient alone to find a diminished earnings capacity. The Court agreed with our argument, finding “[W]hen there is sufficient medical evidence that an employee’s work-related injury has ameliorated to the point where he is released for work, the employer is not required to establish that suitable alternative work is available.” This decision comports with long-standing case law that the burden is on the employee to prove extent of disability, and underscores the importance of properly preserving issues for appeal.
Congratulations to Attorneys James O'Sullivan and Robert Martin!