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Appeal of Savage8/3/1999
Compensation Appeals Board
The petitioner, Donald E. Savage, Jr., appeals the decision of the New Hampshire Compensation Appeals Board (board) denying his claim for workers' compensation benefits against his employer, William Henry Steel Company, and its insurer, State Farm Insurance Companies (respondent). On appeal, the petitioner argues that: (1) the board held him to a heightened standard of proof in establishing legal and medical causation; (2) the board improperly rejected uncontradicted medical opinion and relied on its own interpretation of medical records; (3) he was entitled to payment of medical expenses pending the respondent's appeal to the board; and (4) the hearing officer's calculation of his weekly wage was proper. We vacate and remand.
In December 1994, the petitioner allegedly injured his back while carrying steel rods at a muddy construction site. He testified that he reported the injury to his employer the next day but did not seek immediate medical treatment because he had once "pulled a [back] muscle" which resolved on its own. In March 1995, the petitioner sought medical assistance at Franklin Regional Hospital where he was diagnosed with low back strain. He testified that his employer asked him not to report the injury as work-related and assured him the hospital bill would be paid.
In April 1995, the petitioner sought medical treatment from Dr. Gary Francke, an orthopedic surgeon, who evaluated the X rays and also diagnosed low back strain. The petitioner testified that because his symptoms continued and his employer did not pay his hospital bill, he told Dr. Francke "exactly how it happened." Dr. Francke's hand-written notes reflect that the petitioner was first injured in December 1994. Thereafter, the petitioner continued to work but attempted to lighten his duties until he was laid off as part of a seasonal slowdown in November 1995. He testified that his symptoms persisted and that he began experiencing pain in his right leg in late December 1995.
In late January 1996, he sought medical care from Dr. Noboru Murakami. A nurse examined him and concluded that he had suffered a severe back strain. Although the nurse's records document an injury "1 month ago," the petitioner explained that the date may reflect the onset of his new symptoms, and the date was later amended to December 1994 by Dr. Murakami. In February 1996, Dr. Murakami secured a CT scan of the petitioner's back, which revealed two herniated discs.
At that point, the petitioner sought a second opinion from Dr. Arnold Miller, an orthopedic surgeon, who concurred with Dr. Murakami that the herniations stemmed from the 1994 work incident and recommended surgery to remove the discs. A chiropractor and neurologist who treated the petitioner also agreed with this assessment.
The petitioner testified that, after Dr. Miller prohibited him from returning to work, he contacted his employer who advised him "to do what had to do because [the employer] wasn't going to." The petitioner filed for workers' compensation benefits, but the respondent denied his claim. Although the petitioner received a favorable decision from the department of labor hearing officer, the appeals board denied his claim based on lack of causation. At the hearing, the petitioner presented live testimony and submitted medical evidence for the board's review. The respondent produced no witnesses and offered no medical evidence of its own. The petitioner's motion for rehearing was denied, and this appeal followed.
I.
We first consider the petitioner's argument that the board failed to apply the preponderance of the evidence standard when deciding legal and me
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