Appeal of Elliott

• Decision Date: 31 January 1996
• Docket Number: No. 94-360,94-360
• Citation: 675 A.2d 204,140 N.H. 607
• Parties: Appeal of Erlon ELLIOTT (New Hampshire Compensation Appeals Board).
• Court: New Hampshire Supreme Court

Page 204

675 A.2d 204

140 N.H. 607

Appeal of Erlon ELLIOTT (New Hampshire Compensation Appeals Board).

No. 94-360.

Supreme Court of New Hampshire.

Jan. 31, 1996.

As Modified on Denial of Rehearing

May 15, 1996.

Cooper, Hall, Whittum & Shillaber, P.C., Rochester (Daniel J. Harkinson, on the brief and orally), for claimant.

Sulloway & Hollis, Concord (W. Kirk Abbott, Jr., on the brief and orally), for respondents, Facemate, Inc. and CNA Insurance Companies, Inc.

BROCK, Chief Justice.

The claimant, Erlon Elliott, appeals the decision of the compensation appeals board (board) reducing his workers' compensation benefits from temporary total disability benefits to diminished earning capacity rate benefits. We reverse and remand.

The claimant suffered a repetitive trauma injury to his wrists during 1986 while employed by respondent Facemate, Inc. Facemate and its insurance carrier, respondent CNA Insurance Companies, Inc. (CNA), voluntarily began paying temporary total disability benefits shortly thereafter. With the exception of a brief period in 1986, the claimant continued to receive temporary total disability benefits until the order in this case and had not returned to work.

In 1988, the department of labor rendered a decision making a permanent partial impairment award to the claimant based on his injuries. As part of that decision, the department calculated the claimant's "correct temporary total disability rate." Neither party appealed this decision.

In 1992, the respondents requested a review of the claimant's eligibility for benefits. The department of labor did not act upon this request because it failed to include new medical documentation indicating a change in the claimant's medical condition. In February 1993, the respondents renewed their request for review, submitting a medical evaluation rendered after the 1992 request that, according to the request, was "consistent" with medical evaluations performed in 1987.

In its reply to the February 1993 request, the department of labor noted there was limited new medical information, and asked the respondents to forward "all new medical reports and 'specifically ' refer to the reports that [the respondents] feel indicate a 'change in condition.' " In March 1993, the respondents replied, stating that

[t]here are no new medical reports in this case. You are correct in your observation that the most recent medical exam was conducted on April 14, 1992. However, ... I believe that the report of Dr. O'Neil is sufficient for the Department of Labor to take action under the unique circumstances of this case.

The reply then referred to the April 1992 medical evaluation, reviewed by Dr. O'Neil, which concluded:

At this time based on this evaluation, it is difficult to assess the patient's status secondary to the many inconsistencies that were seen. Based on the presentation on this date the patient appears to have at least a minimal work capacity. The patient may be a candidate for a work capacity evaluation to further delineate any inconsistencies.

The letter concluded by repeating the respondents' position that the 1992 report was "consistent with an earlier report" that had previously been rendered, and by noting that "[b]oth these reports indicate Mr. Elliott is capable of light duty work."

The department of labor held a hearing in May 1993. The hearing officer held that the claimant bore the burden of proving continued disability, and concluded that the claimant failed to meet this burden, noting that he had "been released to some degree of work capacity since 1988." The officer stated:

Based upon the ruling that the claimant, who is requesting benefits, bears the burden of proving entitlement to those benefits, the complete lack of medical justification for ongoing medical disability, and the serious question as to whether the claimant presented a sincere effort when an attempt was made to test his capacity, disability benefits are terminated....

The claimant appealed to the board, which held a de novo hearing. The board agreed with the hearing officer's conclusion regarding the burden of proof. Further, the board concluded that "no determination regarding continuing eligibility for compensation and extent of disability ha[d] ever been rendered by the Department of Labor prior to the decision appealed from." Therefore, it took "the view that any change in condition from the time the carrier accepted the claim may be considered ... in reaching its determination." The board found the claimant no longer temporarily totally disabled and awarded him compensation at the diminished earning capacity rate based on its conclusion that he had "a sedentary to light-duty work capacity."

On appeal, the claimant contends that the respondents should have been required to bear the burden of proving a change in condition and that the board erred in considering evidence of the claimant's condition prior to the department of labor's 1988 decision. Because we agree with the claimant on these points, we need not address his other arguments.

To succeed on appeal, the claimant bears the burden of demonstrating that the board's decision is unlawful or unreasonable. RSA 541:13 (1974); see Appeal of Gamas, 138 N.H. 487, 490, 642 A.2d 925, 927 (1994). We will not disturb the board's findings of fact if they are supported by competent evidence in the record, although we will reverse for an error of law. RSA 541:13; see Appeal of Lambrou, 136 N.H. 18, 20, 609 A.2d 754, 755 (1992).

RSA chapter 281-A authorizes any party, whether claimant, employer, or insurer, to petition the department of labor to review a denial or an award of compensation. RSA 281-A:48, I (Supp.1995). A party may make such a petition "upon the ground of a change in conditions, mistake as to the nature or extent of the injury or disability, fraud, undue influence, or coercion." Id.

Although they concede that the hearing in the instant case was held pursuant to RSA 281-A:48, the respondents argue that they had no obligation to demonstrate a change in conditions because there was no previous "Department decision" entitling the claimant to temporary total disability benefits. We disagree. For purposes of review under RSA 281-A:48, "an agreement between an insurance carrier and an injured party that benefits are payable has the same legal effect as an award for purposes of interpreting the statute." Coulombe v. Noyes Tire Co., 125 N.H. 765, 767, 484 A.2d 1220, 1221 (1984) (applying prior law); see N.H.Admin. Rules, Lab 506.02(b) (where insurance carrier voluntarily has paid benefits for longer than three weeks, it "may request relief as provided by RSA 281-A:48"). Accordingly, even if we were to agree with the respondents' argument that the 1988 department of labor decision granting a partial permanent impairment award and calculating the claimant's "correct temporary total disability rate," was not a "decision" regarding the claimant's entitlement to temporary total disability payments, we would conclude that the respondents' voluntary continuation of payment of such benefits constituted a "decision" for purposes of the review hearing. Coulombe, 125 N.H. at 767, 484 A.2d at 1221.

The respondents concede that when a petition for a hearing, pursuant to RSA 281-A:48, is predicated upon a "change in conditions," the petitioner, claimant, or workers' compensation insurer has the burden of demonstrating such a change. We agree. "The burden of proof of showing a change in condition is normally on the party, whether claimant or employer, asserting the change, although, in...