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Appeal of Rhuland9/30/1998
Compensation Appeals Board
The petitioner, Theresa Rhuland, appeals a decision of the New Hampshire Compensation Appeals Board (board) determining that her claim for temporary total disability benefits from the respondent, Rockingham County Nursing Home, is time-barred. See RSA 281-A:48 (Supp. 1997). We reverse.
The petitioner is a certified nursing assistant who worked at the Rockingham County Nursing Home until she suffered pain in her back and shoulder rendering her unable to return to work after August 9, 1994. She subsequently filed a claim for workers' compensation benefits. After the respondent's insurance carrier denied her claim based on the lack of a causal relationship between her injury and her employment, the petitioner requested a formal hearing before the department of labor (DOL).
The DOL denied the petitioner's claim that either she suffered a new injury on August 9, 1994, or she suffered a recurrence in August 1994 of earlier work-related injuries. The petitioner appealed to the board, which held a de novo hearing on April 4, 1996. At the hearing, the petitioner argued, inter alia, that cumulative trauma from two prior work-related back injuries she suffered in February 1990 and January 1991 prevented her from returning to work after August 9, 1994.
In May 1996, the board ruled that the petitioner suffered from cumulative trauma arising out of and in the course of her employment, entitling her to temporary total disability benefits from August 1994 forward. In its decision, the board relied upon an independent medical examiner's observation that the petitioner's condition apparently arose from "trauma incurred in the course of work in February 1990 and had incompletely recovered when it was reaggravated by a second injury in January 1991." On July 26, 1996, the board denied the respondent's motion for rehearing, finding that "the claimant's medical condition emanates from the trauma incurred from the claimant's February 1990 work injury."
When the respondent failed to pay any workers' compensation benefits, the petitioner asked the DOL to order the respondent to pay her benefits in compliance with the board's May 1996 order. Noting the board's finding that the petitioner's "injury stemmed from a February 1990 work injury," the respondent responded for the first time that it would not pay any disability benefits because the "last disability benefits paid for that injury were more than four years prior to the claimant's filing of the petition for disability benefits which occurred on September 27, 1994." See RSA 281-A:48.
On August 26, 1996, the respondent appealed the board's May 1996 decision to this court. The notice of appeal is devoid of any reference to any defense based on the four-year filing period under RSA 281-A:48. This court subsequently declined to accept the respondent's appeal. See Appeal of Rockingham County Nursing Home, No. 96-558 (N.H. January 30, 1997).
On November 22, 1996, the DOL issued an order stating, in pertinent part: The [board] rules that the current disability stems from the February, 1990 injury. [Counsel for the Rockingham County Nursing Home] indicates [in a letter dated August 20, 1996,] that benefits from the February, 1990 incident were last paid over four years ago. Consequently, according to RSA 281-A:48 . . . there can be no payment of disability benefits as this petition exceeded the four year statute. This matter was reviewed by the [board] and they concur with this result.
Prior to issuance of this order, the petitioner was not afforded an opportunity to rebut the respondent's allegation concerning the last payment of benefits and application of the
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