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In re Woodmansee9/29/2003
r normal employment conditions, as much as he or she earned at the time of injury. See Appeal of CNA Ins. Co., 148 N.H. at 317. As such, a determination of whether a worker's earning capacity has been diminished or enhanced must be reached with reference to the worker's value in the marketplace, independent of the subjective measure of the worker's actual earnings. Appeal of Commercial Union Ins. Co., 145 N.H. at 358. The relevant inquiry "must include a consideration of th worker's overall value in the marketplace[,] . . . taking into account such variables as age, education and job training." Appeal of CNA Ins. Co., 148 N.H. at 323 (citations omitted).
With respect to self-employment, the determinative issue is whether the employee's skills – "be they management, computer, accounting, sales, consulting, or something else – utilized by the employee in the active operation of his own business, when considered in conjunction with the employee's impairment, age, education, and experience, would enable the employee to compete in the labor market." Lanning v. Fieldcrest-Cannon, Inc., 530 S.E.2d 54, 60-61 (N.C. 2000).
Because the board conducted the wrong inquiry, we vacate its decision and remand for a determination as to whether the petitioner experienced a change in his earning capacity that justifies reducing the rate of his benefits from temporary total disability to diminished earning capacity.
The petitioner next argues that the evidence did not support a finding that he has an earning capacity. The respondents counter that the record amply supported such a finding. We decline to reach these arguments on appeal. "It is the board's province, not ours, to weigh the evidence in the first instance." Appeal of Jackson, 142 N.H. at 207. In light of our ruling, we similarly decline to address the remainder of the parties' arguments concerning the validity of the board's decision.
Vacated and remanded.
BROCK, C.J., and BRODERICK, NADEAU and DALIANIS, JJ., concurred.
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