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Appeal of Rainville2/8/1999
Compensation Appeals Board
(New Hampshire Compensation Appeals Board)
The petitioner Paul Rainville, appeals the decision of the New Hampshire Compensation Appeals Board (board): (1) allowing his insurance carrier to suspend payment of physical therapy expenses while its appeal to the board was pending; (2) denying his claim for medical treatment expenses; and (3) denying his claim for a scheduled permanent impairment award. We affirm in part, reverse in part, vacate in part, and remand.
The petitioner, a construction worker employed by Glen Builder's, Inc. (employer), suffered injury after operating a jackhammer over a two-week period in November 1993. He experienced upper body pain, neck pain, tremors, diaphoresis, headaches, anxiety, hoarse voice, and numbness in his arms. Except for a brief period as a supervisory foreman in early 1994, the petitioner has ceased all gainful employment and has been receiving temporary total disability payments since April 1994.
During the three years following his injury, the petitioner saw numerous medical professionals and underwent a myriad of tests and procedures, resulting in various diagnoses. In December 1994, Dr. David Nagel, his primary physician since July 1994, diagnosed multifocal myofascial pain syndrome with multiple sympathetic phenomenon and recommended physical therapy. The employer's insurance carrier, Royal Insurance (carrier), paid for the initial two rounds of physical therapy but refused to pay for subsequent therapy.
In November 1995, Dr. Nagel concluded that the petitioner had reached maximum medical improvement and that future improvement was unlikely. Referring to the AMA Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (AMA Guides), Dr. Nagel calculated an eighteen percent impairment of the whole person.
In January 1996, the petitioner submitted to the carrier's request for an independent medical examination. Dr. Kenneth O'Neil conducted the examination and concluded that the petitioner suffered from chronic pain syndrome unrelated to his November 1993 injury. Dr. O'Neil disputed Dr. Nagel's finding of permanent impairment based on the AMA Guides and found that further physical therapy was unnecessary.
Based on Dr. O'Neil's evaluation, the employer requested a hearing with the department of labor (DOL) to review the petitioner's eligibility for disability benefits under RSA 281-A:48 (Supp. 1997) (amended 1998). In addition, the petitioner requested a hearing concerning his unpaid physical therapy bills, see RSA 281-A:23 (Supp. 1998), and his eligibility for a permanent impairment award, see RSA 281-A:32 (Supp. 1998).
After a hearing held on June 7, 1996, the DOL hearing officer determined that the petitioner's condition was directly related to his November 1993 injury and that no changes had occurred to warrant a reduction or termination of his benefits. The hearing officer also determined that the petitioner's physical therapy treatments were reasonable and necessary. She denied, however, the claim for a permanent impairment award, citing Dr. Nagel's failure to explain his calculations adequately. The hearing officer ordered the carrier to continue payment of temporary total disability benefits and to pay for the petitioner's physical therapy bills and related travel expenses.
Both parties appealed to the board. While the appeal was pending, the carrier refused to pay the petitioner's physical therapy expenses, and the petitioner protested. The DOL hearing officer concluded that the carrier was not obliged to make payments for medical expenses pending appeal unless the hearing officer had expressly ordered payment "
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