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In re Appeal of Hiscoe11/26/2001
Compensation Appeals Board
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 s difficult to determine that the self-insured provide
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