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In re Woodmansee9/29/2003
(New Hampshire Compensation Appeals Board)
Submitted: June 6, 2003
The petitioner, Sanford Woodmansee, appeals the order of the New Hampshire Compensation Appeals Board (board) reducing the rate at which his benefits were paid from temporary total disability to diminished earning capacity. See RSA 281-A:28, :31, :48 (1999); N.H. Admin. Rules, Lab 510.03. We vacate and remand.
The record supports the following facts. The petitioner is in his mid-forties, has a high school diploma, and has primarily worked on construction jobs as a drywaller. On December 7, 1990, while working for respondent Florida Textures, Inc. (Florida Textures), a dry wall finishing company, he injured his lower back. Since sustaining the injury, the petitioner has had four back surgeries, taken numerous pain medications and undergone physical therapy. Additionally, he has suffered from depression, has seen a psychologist and taken antidepressants for treatment.
The petitioner received temporary total disability benefits for his back injury. In March 1999, Florida Textures' insurer, respondent One Beacon Insurance (One Beacon), obtained a videotape showing the petitioner installing siding on a house. Armed with the videotape, the respondents petitioned the New Hampshire Department of Labor (DOL) to modify the petitioner's award of temporary total disability payments pursuant to RSA 281-A:48. The hearing officer ruled that the petitioner's new work capacity was a sufficient change in conditions to warrant terminating his temporary total disability benefits. The petitioner appealed this decision, and the board reversed it; neither party appealed the board's decision to this court.
In December 2000, One Beacon requested another change of conditions hearing pursuant to RSA 281-A:48. This time, the hearing officer ruled in the petitioner's favor, finding that neither his medical nor his economic condition had changed since March 8, 1999 (the date of the previous DOL hearing), and, thus, he remained entitled to temporary total disability benefits.
The respondents appealed to the board, which conducted a de novo hearing on May 29, 2002. At the hearing, the petitioner testified that since 1999, he had worked on four construction jobs. One job involved moving a mobile home from a mobile home park and relocating it on a new foundation. The contract price for this job was approximately $55,000. The petitioner's role was to build a small addition on the home and to hire subcontractors to clear the land, put in the foundation and relocate the home.
Another job involved re-roofing a home, adding insulation and vinyl siding, rebuilding some porches, and doing some electrical work. The contract price for this job was between $50,000 and $60,000. A third job also involved re-roofing a home, for which the petitioner charged between $10,000 and $12,000. The last job required the petitioner to arrange to have flooring and the hearth replaced in a home that was damaged by a chimney fire. The petitioner could not recall what he charged for this work.
The petitioner testified that because of his chronic pain he could not work either a 40-hour week or a reduced work schedule for someone else. He explained that he is homebound at least one or two days a week and that he cannot anticipate when he will be homebound because of pain.
The board also heard from the petitioner's wife, who testified that she did the paperwork for her husband's construction business in 1999 and 2000. She testified that the business lost money and that she and her husband declared bankruptcy at one point.
In addition, the respondents produced medical reports fr
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