In re Hiscoe

Citation786 A.2d 96,147 N.H. 223
Decision Date26 November 2001
Docket NumberNo. 99–825.,99–825.
CourtSupreme Court of New Hampshire
Parties Appeal of Lois HISCOE (New Hampshire Compensation Appeals Board).

McKible & Johnstone, of Concord (Andrew D. Johnstone on the brief and orally), for the petitioner.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael R. Mortimer on the brief and orally), for the respondents.

DALIANIS, J.

The petitioner, Lois Hiscoe, appeals a decision of the New Hampshire Compensation Appeals Board (board) denying her an award for permanent impairment, see RSA 281–A:32, IX (1999), and terminating her weekly disability benefits, see RSA 281–A:48 (1999). We affirm.

On May 25, 1992, while working for the New Hampshire State Hospital (hospital) as a human resources assistant, the petitioner injured her lower back while attempting to open a file drawer. Following the injury, the petitioner saw various physicians who diagnosed her condition as a lumbar strain

, with no evidence of disc herniation. She also exhibited signs of lumbar disc degeneration.

The petitioner received temporary total disability benefits, commencing from the time of her injury. She attempted to return to work later in 1992, but could not perform her duties on a full-time basis without experiencing back pain. She voluntarily retired later that year.

On April 26, 1995, Doctor C.M. Husted conducted a permanent impairment evaluation on the petitioner. He concluded that she had a seven percent whole person permanent impairment because of her lumbar spine, and that her condition at that time was caused by her 1992 workplace injury. He also noted that the petitioner had disc degeneration. On April 2, 1997, Doctor Husted reevaluated the petitioner and concluded that she had reached a medical endpoint, but could begin doing light work.

In 1998, the petitioner filed a claim with the department of labor (DOL) for a permanent impairment award. See RSA 281–A:32, IX. The respondents requested that the DOL add the issue of extent of disability, see RSA 281–A:48, to the petitioner's permanent impairment award hearing. After the DOL initially denied this request, the respondents' counsel sent a letter to the DOL stating:

The [Independent Medical Examiner's] report indicates that the condition from which the claimant suffers and which causes her disability is no longer causally related to the original injury. My understanding is that the Department considers this to be an extent issue rather than a causal relationship issue under § 2; hence, the request for the addition of this issue. On this basis, I renew my request for the addition of § 48 as an issue at the hearing scheduled for September 2, 1998.

The respondents sent a copy of this letter to the petitioner's attorney. The DOL issued a notice adding "Review of Eligibility for Compensation and Extent of Disability" to the hearing agenda.

The DOL conducted a hearing on October 1, 1998. At the hearing, the respondents argued, among other things, that the petitioner's 1992 injury was not compensable because it was a soft tissue injury. In addition, they argued that her initial lumbar strain

had resolved and that any disability at the time of the hearing was caused by her degenerative disc disease. Most of the medical reports introduced at the hearing indicated that the lumbar strain that had been caused by the petitioner's 1992 injury had resolved, and that her continuing condition was caused by her pre-existing degenerative disc disease.

The DOL denied the petitioner a permanent impairment award because a soft-tissue injury is not compensable under RSA 281–A:32, IX. The DOL also denied the respondents' request to terminate benefits under RSA 281–A:48, finding that "the self-insured has failed to provide sufficient medical evidence that a change in condition has occurred and the claimant's current symptoms are unrelated to the May 25, 1992 work injury." The DOL further stated that, based upon the medical evidence, "it [wa]s difficult to determine that the self-insured provided sufficient medical evidence to prove that the claimant's condition is no longer related [to the 1992 workplace injury]." Both parties appealed the decision to the board.

A hearing was held on September 30, 1999, during which the board reviewed the medical evidence presented to the DOL, as well as a report from Doctor William Boucher, who examined the petitioner on April 20, 1999. In his report, Doctor Boucher concluded that the petitioner's physical condition remained unchanged since her 1992 injury, but that there was no causal relationship between her disability at that time and her workplace injury. He reported that his examination revealed no evidence of ongoing injury and that her condition was caused entirely by osteoarthritis

of the lumbosacral spine, which had been significant since 1986.

Prior to the hearing, the board's chairman informed the petitioner's attorney that the respondents would be allowed to argue that the petitioner's condition was not causally related to the 1992 workplace injury The board affirmed the DOL decision denying the petitioner a permanent impairment award on the ground that her injury was a soft tissue injury and therefore excluded under RSA 281–A:32, IX. In addition, the board ruled that the petitioner was not entitled to a permanent impairment award because she failed to prove by a preponderance of the evidence that her work related injury caused an aggravation of her underlying degenerative disc disease

. The board reversed the DOL decision not to terminate the petitioner's disability benefits, finding that "the administrator [proved] a change of condition by a preponderance of the evidence that there [wa]s no causal relationship between the claimant's current disability and her work related [injury] of May 25, 1992." The petitioner filed a motion for rehearing, which the board denied. This appeal followed.

"We will not disturb the board's decision absent an error of law, or unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable." Appeal of Bergeron, 144 N.H. 681, 683, 749 A.2d 296 (2000) ; see RSA 541:13 (1997). We consider the board's findings of fact to be prima facie lawful and reasonable. See RSA 541:13. We begin by addressing the board's decision to terminate the petitioner's disability benefits under RSA 281–A:48.

I. Extent of Disability / Termination of Benefits

The petitioner first argues that the board deprived her of due process when it terminated her disability benefits under RSA 281–A:48 because it required her to prove that her condition was causally related to her 1992 workplace injury. She argues that causation was not a noticed issue before the board and that the respondents were required to request a separate hearing before the DOL to challenge causation.

"The fundamental requisite of due process is the right to be heard at a meaningful time and in a meaningful manner." Appeal of Portsmouth Trust Co., 120 N.H. 753, 758, 423 A.2d 603 (1980). To that end, we have held that adequate notice is that which is reasonably calculated to give the parties actual notice of the issue or issues to be decided at the hearing. See Town of Swanzey v. Liebeler, 140 N.H. 760, 763, 674 A.2d 968 (1996). In the context of workers' compensation hearings, the DOL is required to specify the issues to be addressed at the hearing. N.H. Admin. Rules, Lab 204.1. Due process, however, does not require perfect notice, but only "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Douglas v. Douglas, 143 N.H. 419, 423, 728 A.2d 215 (1999) (quotation omitted). Thus, our inquiry focuses upon whether notice was fair and reasonable under the particular facts and circumstances of each case. Berube v. Belhumeur, 139 N.H. 562, 567, 663 A.2d 598 (1995).

First, contrary to the petitioner's assertion, the board did not place the burden of proving causation upon her when it terminated disability benefits under RSA 281–A:48. Rather, it placed the burden correctly upon the respondents. See Appeal of Elliott, 140 N.H. 607, 610, 675 A.2d 204 (1996). Thus, to the extent the petitioner claims she was not notified she would have the burden of proving causation in order to continue receiving benefits, her due process claim is without merit.

Prior to the DOL hearing, the respondents sent a letter to both the DOL and the petitioner's attorney requesting that the issue of extent of disability be added to the permanent impairment hearing. In that letter, the respondents explained that they were challenging the causal relationship of the petitioner's then current condition to the 1992 workplace injury. The petitioner does not dispute receiving this letter. Further, the record of proceedings before the DOL indicates that the respondents argued that the petitioner's condition was no longer causally related to her 1992 injury, in that her lumbar strain

had resolved and her condition was caused by her degenerative disc disease. The DOL also addressed the issue of causal relationship in its decision.

Moreover, the petitioner discussed the causal relationship issue with the respondents and the board during a pre-hearing colloquy and did not object to the board's consideration of the issue. Prior to closing arguments, the chairman of the board again addressed the causal relationship issue, stating

the fact that [causal relationship of injury to employment] was not noticed as an issue for this hearing does not prevent Attorney Mortimer from arguing that there has been a change of conditions that warrants determination [sic ] of or reduction of benefits on the basis that the claimant's disability is no longer causally related to her work related injury. Similarly, he will be allowed to argue ... that any permanent partial impairment is not causally related to the work related injury under RSA 281–A:3
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