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Appeal of Malo (New Hampshire Compensation Appeals Board)

Supreme Court of New Hampshire

February 17, 2017

APPEAL OF JASON MALO (New Hampshire Compensation Appeals Board)

          Argued: January 17, 2017

         Compensation Appeals Board

          Normandin, Cheney & O'Neil, PLLC, of Laconia (James F. Lafrance on the brief and orally), for the petitioner.

          Trombley & Kfoury, PA, of Manchester (Paul R. Kfoury, Jr. on the brief and orally), for the respondents.

          DALIANIS, C.J.

         The petitioner, Jason Malo (the claimant), appeals a decision of the New Hampshire Compensation Appeals Board (CAB) reducing the rate at which his indemnity benefits are paid from the temporary total disability rate to the diminished earning capacity rate. See RSA 281-A:28 (2010), :48 (Supp. 2016); see also N.H. Admin. Rules, Lab 510.03. On appeal, he argues that the CAB erred by: (1) finding that his physical condition had improved since he sustained the original, compensable, work-related injury; (2) determining that the change in his physical condition affected his earning capacity; and (3) failing to make specific findings of fact and rulings of law sufficient to allow meaningful appellate review. We affirm.

         The relevant facts follow. The claimant is approximately 43 years old. He completed the 11th grade and has a high school equivalency diploma. He has worked as a mechanic for most of his working life. He was a marine mechanic for approximately 20 years before becoming employed full-time by respondent MB Tractor & Equipment (the employer), in July 2011, to do heavy equipment repair. On February 18, 2014, the claimant sustained a work-related, compensable injury. On that day, he injured his back while working on an excavator using a large wrench and a blow torch. He continued working that day and for the rest of the week, left work for treatment in early March, and, subsequently, was released to work with modifications. The claimant left work again in late April 2014 because of pain. Thereafter, he began receiving indemnity benefits from respondent Acadia Insurance Company (the carrier) at the temporary total disability rate.

         The claimant's injury was diagnosed as a lumbar strain with "left sided radiculitis." An April 2014 MRI showed that he had a "prominent left posterolateral/foraminal disc protrusion" at the L3-L4 intervertebral disc space, causing "likely mass effect upon the left L4 nerve root, " "disc desiccation . . . consistent with some degenerative disease" at L4-L5, and a "small porta hepatis protrusion with associated annular tear, " also at L4-L5. A second MRI in May 2015 showed that the claimant has "a small to moderate sized posterolateral left-sided disc herniation" at L3-L4 and "a degenerating mildly bulging disc annulus with a superimposed relatively small posterolateral right-sided disc herniation" at L4-L5.

         From April 2014 to September 2015, the claimant saw several providers and received epidural steroid injections, "lumbar medial branch blocks, " physical therapy, group therapy, acupuncture, and opiate narcotics, all to no avail.

         Three doctors have evaluated him for surgery and have opined that surgery is not indicated. The last such evaluation was conducted by Anthony Salerni, M.D. in June 2015. Based upon the May 2015 MRI, Salerni observed that the claimant did not have any "severe nerve compression, so [a] simple discectomy would not help him." Salerni noted that the claimant has continued "to have refractory low back pain, " which Salerni attributed to the claimant's original work injury. The claimant's only surgical option, Salerni noted, was "fusion"; however, because the claimant is taking "high dose narcotics" and is "deconditioned, " Salerni did not consider him a candidate for surgery at that time.

         The claimant underwent two independent medical examinations (IMEs) by David B. Lewis, D.O. See RSA 281-A:38 (Supp. 2016). The first IME was in November 2014; the second IME was in June 2015. In the first IME, Lewis diagnosed the claimant with "[l]umbosacral, facet, sacroiliac, piriformis strain" and assessed his pain complaints as "subjective." Lewis observed that the claimant has a "heightened pain response" and that he exhibited "Waddell signs." The respondents define "Waddell signs" as "[a]ny group of clinical tests occasionally used to identify patients whose back pain is not organic, i.e. more likely to be of psychological origin." Lewis further observed that his physical examination of the claimant did "not show any sort of neurological deficit" and that "the findings on the MRI are mostly mild." Lewis opined that the claimant "is so focused on his pain that he is not allowing himself to improve his stability, " which makes "the situation worse." Following the first IME, Lewis determined that the claimant could work "full time, lifting . . . 15-20# occasionally."

         In the second IME, Lewis noted that the "Waddell signs" were "worsening." He opined that the claimant's current treatment, which is "essentially medications including . . . an escalating dose of narcotics without true improvement, " is not working and that the narcotics should be discontinued. Lewis observed that the claimant was exhibiting "greater pain behaviors without evidence [of] true neurological deficits." Lewis found the claimant to be at maximum medical improvement, capable of full-time light duty work, "lifting in the 15-20# range occasionally."

         Other clinicians who have examined the claimant have concurred with some of Lewis's findings and observations. For instance, Peter J. Dirksmeier, M.D., who evaluated the claimant for surgery in July 2014, observed that the claimant's "Waddell's test was positive, " that the "[s]traight leg raise [did] not elicit pain when [the claimant was] distracted, " and that "[o]verreaction to stimulus [was] present." Dirksmeier made identical observations when he evaluated the claimant for surgery again in August 2015.

         Similarly, the claimant's treating physician, Nathan Jorgensen, M.D., opined in December 2014 that "a majority of [the claimant's] problem[s] [are] [his] psychologic[al] unwillingness to work through the pain and to get beyond the pain itself." Jorgensen noted that the "significant psychological overl[a]y" to the claimant's physical condition "seems to be inhibiting his recovery." In January 2015, Jorgensen observed that although the claimant's back pain "truly seems to be disabling him completely, " the MRI, taken in April 2014, "is not particularly concordant with the amount of pain that he has." Jorgensen stated that there "has been discussion by other practitioners that [the claimant] has extremely poor coping skills and that may explain his inability to work with his ...


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