Appeal of Jason Malo
169 N.H. 661
| N.H. | 2017Background
- Claimant (Jason Malo), a 43-year-old mechanic, injured his back at work on Feb 18, 2014; diagnosed with lumbar strain and left-sided radiculitis with disc protrusions at L3-4 and L4-5 on MRIs.
- After conservative treatments (injections, PT, medications) failed, three surgeons concluded he was not a surgical candidate; one surgeon recommended fusion but deferred due to high-dose narcotics and deconditioning.
- Two IMEs by Dr. David Lewis (Nov 2014, Jun 2015) found Waddell signs, no objective neurological deficits, maximum medical improvement, and capacity for full-time light duty (lifting 15–20 lbs); Lewis recommended stopping narcotics.
- Treating and consulting physicians (Drs. Jorgensen, Dirksmeier) noted psychological overlay, pain magnification, and Waddell signs supporting nonorganic contributions to pain.
- Employer/carrier petitioned to reduce/terminate benefits under RSA 281-A:48; a hearing officer reduced benefits to the diminished earning capacity rate; the CAB affirmed after de novo review, finding claimant not totally disabled and eligible for diminished earning capacity benefits.
Issues
| Issue | Malo's Argument | Respondents' Argument | Held |
|---|---|---|---|
| Whether claimant's physical condition improved since injury | Malo: treating docs showed worsening condition; no improvement proven | Respondents: IMEs and other records show improvement/ability to work light duty | CAB findings of improvement upheld as supported by competent evidence |
| Whether change in condition affected earning capacity | Malo: evidence insufficient to prove diminished earning capacity; he did not seek other work | Respondents: age, education, work history and work release support diminished earning capacity | Court: CAB may rely on claimant's work capacity, age, education, training to find diminished earning capacity; finding upheld |
| Whether carrier needed expert testimony to prove earning capacity | Malo: implied need for vocational/expert evidence | Respondents: expert not required where CAB can assess market competitiveness | Court: expert not required here; CAB within its ken to assess earning capacity |
| Whether CAB’s findings were sufficiently specific for appellate review | Malo: CAB decision conclusory, failed to state change in condition or analyze earning capacity | Respondents: CAB’s findings (work release; not totally disabled; eligible for diminished rate) are adequate | Court: CAB’s findings were sufficient to permit meaningful review; affirmed |
Key Cases Cited
- Appeal of Phillips, 165 N.H. 226 (2013) (standard of review for CAB factual findings and statutory interpretation)
- Appeal of Carnahan, 160 N.H. 73 (2010) (termination vs reduction of benefits; test for regaining prior earning capacity)
- Appeal of Woodmansee, 150 N.H. 63 (2003) (definition and assessment of earning capacity in labor market)
- Appeal of CNA Ins. Co., 148 N.H. 317 (2002) (when expert testimony is required to determine earning capacity)
- Appeal of Hiscoe, 147 N.H. 223 (2001) (distinguishing termination bases: return-to-work vs loss of causal relation)
- Appeal of Kehoe, 139 N.H. 24 (1994) (agency decisions must contain findings and conclusions to permit review)