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In re Appeal of Cote8/28/2001
Compensation Appeals Board
(New Hampshire Compensation Appeals Board)
The petitioner, Louis Cote, appeals a decision of the New Hampshire Compensation Appeals Board (board) regarding his permanent impairment award. We vacate and remand.
The relevant facts follow. In February 1985, the petitioner injured his back while working as a towel machine operator for the respondent, James River Corporation. The petitioner's entitlement to workers' compensation benefits was decided by this court in Appeal of Cote, 139 N.H. 575 (1995). The current dispute concerns the calculation of the petitioner's permanent impairment award.
On June 9, 1997, Dr. James Forbes, one of the petitioner's former treating physicians, prepared a permanent impairment report at the request of the respondent's claims adjuster. Dr. Forbes reported that the petitioner had reached maximum medical improvement and assigned him a ten percent whole person impairment rating based upon Table 75 of the American Medical Association's Guide to the Evaluation of Permanent Impairment (Guide), which is within the range of motion model section of the Guide.
On October 29, 1997, Dr. Bruce Myers prepared a report entitled "Permanent Impairment Rating" on behalf of the petitioner. After reviewing the petitioner's medical records and performing a physical evaluation, Dr. Myers evaluated the petitioner's permanent impairment rating at twenty percent based upon the range of motion model in the Guide.
In May 1998, the department of labor (DOL) held a hearing at the petitioner's request regarding his eligibility for a permanent impairment award. The DOL found that the petitioner was entitled to a ten percent permanent impairment award at the compensation rate of sixty percent of his average weekly wage. The petitioner appealed to the board for a de novo hearing. The board heard testimony from the petitioner, Dr. Myers and Dr. Gerald DeBonis. Additionally, the board had before it the permanent impairment evaluations from both Dr. Forbes and Dr. Myers.
At the hearing, Dr. Myers reiterated his opinion that the petitioner had a twenty percent permanent impairment rating based upon the range of motion model in the Guide. He further testified that with the petitioner's injury, the range of motion model was the preferable method to use in determining permanent impairment.
Dr. DeBonis testified on behalf of the respondent. Dr. DeBonis had not examined the petitioner, but testified that based upon his review of the petitioner's medical records, the injury model should have been used in determining the petitioner's permanent impairment, thus contradicting Dr. Myers' opinion. Dr. DeBonis testified that according to the injury model, the petitioner was entitled to a permanent impairment rating of five percent.
On February 23, 1999, the board issued its unanimous decision finding that the petitioner did not meet his burden of establishing entitlement to a permanent impairment award of twenty percent. Specifically, the board found Dr. DeBonis' opinion that the petitioner's permanent impairment assessment should be based upon the injury model "far more persuasive" than Dr. Myers' opinion that the assessment should be based upon the range of motion model. The board rejected the submitted permanent impairment evaluations by Dr. Forbes and Dr. Myers because both were based upon the range of motion model. The board found that while Dr. DeBonis' testimony was competent to contradict the opinion of Dr. Myers, it did "not rise to the level necessary to constitute competent medical evidence in issuing a permanent impairment rating." The board, however, stated that "it is undisp
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