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In re Appeal of Fay12/8/2003
Compensation Appeals Board
Argued: October 15, 2003
The petitioner, Edward Fay, III, appeals a decision of the New Hampshire Compensation Appeals Board (board) denying him temporary partial disability benefits and ruling that the respondent, Elliot Hospital (hospital), was responsible only for certain medical bills. We vacate in part and affirm in part.
On November 12, 1999, Fay was working as a cook at the hospital when he injured his back lifting a thirty-pound box of frozen food. Fay reported the injury immediately, but did not seek medical treatment until November 22, 1999, when he visited his family physician, Dr. Albert Bourgeois. According to Dr. Bourgeois, Fay had a "full-time, full-duty work capacity."
On December 7, 1999, the hospital denied Fay's claim for workers' compensation on the basis that there was no causal relationship between the injury and his employment. Fay appealed to the New Hampshire Department of Labor. A hearing officer found that Fay sustained an injury arising out of and in the course of his employment, and thus his claim was both compensable and the responsibility of the hospital. Since Fay "did not lose any time" as a result of his injury, the hearing officer did not rule on the extent of Fay's disability.
Fay continued to work at the hospital until December 1999 when he left to work at another restaurant. Fay testified that due to his back injury, he was unable to perform fully the duties of his new job . However, he continued working at the restaurant until the spring of 2000, when he left in order to concentrate on his firewood business. Because of his back injury, he was unable to perform much of the physical labor that his business required and was forced to hire employees.
On September 10, 2001, a functional capacity evaluation indicated that Fay had a "full-time light duty work capacity." Additionally, on February 4, 2002, an independent medical evaluation was conducted by Dr. Richard Levy. Dr. Levy stated: "The medical records and the patient's subjective history certainly raise the possibility that his problem is causally related to work." Dr. Levy opined that Fay had a full-time, light-duty work capacity and that he could work as a cook. Fay, on the other hand, felt that his inability to lift heavy items precluded him from working as a cook and in his wood business.
During this time, the hospital continued to pay for the treatments related to Fay's back injury. However, when Fay was treated by Erickson Chiropractic, the hospital denied reimbursement. In addition, when Fay was treated for gastrointestinal problems, the hospital denied reimbursement for those treatments as well.
According to Fay, he began to experience emotional difficulties shortly after he was injured at work. He first suffered an anxiety attack in December 1999. When his emotional problems continued, he began treatment with Paul Foster-Smith, a mental health counselor, in September 2000. Fay was also treated by Foster-Smith's partner, Catherine Foster-Smith, a psychiatric nurse practitioner. On August 16, 2001, the hospital denied reimbursement for Fay's mental health counseling.
Fay appealed and a hearing was held at the department of labor on May 1, 2002. At issue was whether the hospital was responsible for Fay's chiropractic, gastrointestinal and mental health counseling bills. The hearing officer ruled that Fay was entitled to temporary partial disability benefits and vocational rehabilitation assistance. The hearing officer also ruled that the hospital had a continuing responsibility for the medical bills related to Fay's back injury, including his chiropractic bills. The hearing
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