N.H. College Veep’s Change of Condition Leads to Cut in Benefits

Center Sandwich, NH (WorkersCompensation.com) -- To what extent does a worker's change in medical condition also present a change in earning capacity?

According to the New Hampshire Supreme Court in Appeal of Fran Rancourt, No. 2021-0153 (N.H. 08/16/23), when a worker was released to modified duty work, the carrier could terminate benefits.

A vice president of a community college experienced an injury when she slipped on ice, hitting her head. She was taken to the hospital and received 11 staples to close a wound on her head. She was taken out of work for 10 days.

Three months later, the vice president was assessed by an independent medical examiner who recommended "partial duty modified work part-time" and physical therapy.

Later, at a revaluation, this examiner opined that the vice president had not reached maximum medical improvement and did not have the ability to return to full duty work.

About two months later, the vice president was visiting a friend in Maine when she fell stepping into a boat. As a result of the fall, which the vice president attributed to problems with her depth perception related to her head injury, she severely injured her hamstring, requiring surgery.

Nearly three years after the vice president's work injury, the examiner concluded that she had reached MMI and could work full-time modified duty.

The carrier requested a hearing, seeking to terminate the temporary total disability indemnity benefits the vice president had been receiving. The hearing officer granted the carrier's request to reduce benefits, which the vice president appealed.

On appeal, the New Hampshire Compensation Appeals Board upheld the hearing officer's decision, prompting the vice president to appeal to the New Hampshire Supreme Court, where she contended that the CAB erred in concluding that she had a change in work and earning capacity justifying a reduction in benefits.

In New Hampshire, to justify a reduction in benefits, a carrier must show:

(1) The claimant experienced a change in condition.
(2) The changed condition affected the claimant's earning capacity.

A change in condition may be demonstrated if the injured employee is physically able to perform her regular work or is able to engage in “gainful employment," which means “employment that reasonably conforms with the employee’s age, education, training, temperament and mental and physical capacity to adapt to other forms of labor than that to which the employee was accustomed.”

Workers' Comp 101: Do "gainful employment" and "earning capacity" mean the same thing in New Hampshire? Not according to In re Carnahan, 993 A.2d 224 (N.H. 2010), which clarified that “earning capacity” is “an objective measure of a worker's ability to earn wages” and deals with “whether the worker is now able to earn, in suitable work under normal employment conditions, as much as she earned at the time of injury.” On the other hand, "gainful employment,” or "work capacity" does not require a finding that the claimant is able to earn as much as she earned at the time of injury.

In affirming the hearing officer's and CAB's decisions, the court noted that the CAB:

--> Determined that the vice president had a change in condition based on the examiner's report.
--> Determined that the vice president's change in condition, which was her ability to return to full-time modified duty, would warrant the reduction of the indemnity benefits.

The court found that these determinations were supported by the record, and thus the CAB did not err in ruling in the carrier's favor.

"Because the CAB relied on competent evidence in the record, and is authorized to make credibility determinations when rendering findings of fact, we find no error," the court wrote.

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