In re Blake

623 A.2d 741, 137 N.H. 43, 1993 N.H. LEXIS 34
CourtSupreme Court of New Hampshire
DecidedApril 7, 1993
DocketNo. 91-518
StatusPublished
Cited by9 cases

This text of 623 A.2d 741 (In re Blake) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Blake, 623 A.2d 741, 137 N.H. 43, 1993 N.H. LEXIS 34 (N.H. 1993).

Opinion

Thayer, J.

The petitioner, Patricia J. Blake, seeks a writ of certiorari to review the decision of the New Hampshire Department of Labor granting her a whole person permanent impairment award of eight percent. She argues that the hearings officer erred by admitting a medical report into evidence and rendering a decision that was illegal, unreasonable, arbitrary and capricious, as well as an abuse of discretion. We affirm.

The petitioner worked for Laconia Shoe Company, Inc., as a shoe stitcher for eight years. Over the course of her employment, she developed a repetitive motion injury in her hand. In 1987, the petitioner began treatment with Dr. Daniel C. Wing. Dr. Wing conducted [45]*45testing and determined that the petitioner was suffering from thoracic outlet syndrome, accompanied by myofascial syndrome or fibrositis and chronic pain syndrome. On or about June 26, 1990, Dr. Wing determined that she had reached a medical endpoint, i.e., the point at which further medical treatment was unlikely to change her condition. Dr. Wing assessed a “whole person permanent impairment” (a scale which measures the degree of permanent impairment) of ninety-one percent, based on the sixty percent impairment of the right upper extremity and thirty-one percent impairment of the left upper extremity. Based on Dr. Wing’s impairment evaluation, the petitioner requested a hearing to determine the permanent impairment award.

Dr. Wing’s permanent impairment report was sent to the employer’s insurance carrier, Liberty Mutual Insurance Company (Liberty Mutual). Liberty Mutual requested an independent medical examination (IME) of the petitioner. On June 25, 1991, Dr. Kenneth O’Neil and a staff occupational therapist conducted a “work capacity evaluation” of the petitioner. Dr. O’Neil diagnosed post carpal tunnel syndrome and a possible median nerve motor branch injury to the right hand. On July 8,1991, Dr. O’Neil sent a copy of the work capacity evaluation (IME report) to Liberty Mutual along with a lengthy cover letter explaining the results and containing his conclusions and recommendations. On July 19, 1991, Dr. O’Neil sent Liberty Mutual a one-page “impairment report” that contained his calculation of five percent impairment of the right upper extremity and three percent impairment of the left upper extremity, resulting in eight percent impairment of the whole person. Liberty Mutual sent a copy of Dr. O’Neil’s impairment report to the labor department on August 23, 1991.

On August 24, 1991, Liberty Mutual sent a letter to the petitioner’s attorney enclosing a copy of the IME report and stating that Dr. O’Neil had computed whole person impairment to be eight percent. In reference to the impairment figure, Liberty Mutual’s counsel explained that he was “in the process of sending the [labor department] a copy of Dr. O’Neil’s report along with the necessary paperwork to settle this issue,” since Dr. Wing’s ninety-one percent impairment figure did “not even come close” to Dr. O’Neil’s impairment figure. The petitioner’s counsel claims that he never received a copy of the one-page impairment report.

On October 2, 1991, when the petitioner arrived at the labor department with her attorney for the hearing, the hearings officer made available the petitioner’s complete medical report. Dr. Wing [46]*46and counsel for the petitioner examined Dr. O’Neil’s impairment report. During the hearing, petitioner’s counsel objected to the introduction and consideration of the impairment report arguing, in part, that it had never been disclosed to him or the petitioner, and that he was “not aware of any evaluation done by Dr. 0’Neil[].” The hearings officer admitted the impairment report, explaining that the impairment report had been in the department’s file for two months prior to the hearing and, further, that there had been a conversation between petitioner’s counsel’s office and the labor department regarding the eight percent impairment figure contained in the report. The hearings officer allowed petitioner’s counsel to examine her expert witness, Dr. Wing, with respect to that impairment report. In addition, the hearings officer held the record open for ten days after the hearing to allow the parties to submit closing arguments. See N.H. Admin. Rules, Lab 204.06(f). On October 17,1991, the hearings officer awarded the petitioner a whole person permanent impairment award of eight percent.

Permanent impairment awards of the labor department are final under RSA 281-A:32, XII (Supp. 1992). Accordingly, certiorari is the proper remedy for review. Petition of Markievitz, 135 N.H. 455, 456, 606 A.2d 800, 801 (1992). We have consistently held that on certiorari, we will not make de novo findings or revise those already made by the department. Id. “Our standard of review on petitions for certiorari is whether the commissioner acted illegally with respect to jurisdiction, authority or observance of the law, whereby he arrived at a conclusion which could not legally or reasonably be made, or . . . abused his discretion or acted arbitrarily, unreasonably, or capriciously.” Petition of Gunzel, 124 N.H. 495, 498, 471 A.2d 1189, 1190 (1984) (quotation omitted).

The petitioner argues that the hearings officer improperly admitted Dr. O’Neil’s impairment report. First, the petitioner contends that the impairment report was an ex parte communication sent to the labor department in violation of New Hampshire Administrative Rules, Lab 203.02. Second, she argues that the report was not provided to her by the carrier, thus contravening New Hampshire Administrative Rules, Lab 204.06, 503.01, and RSA 281-A:23, V(d) (Supp. 1992).

Ex parte communication, as defined by New Hampshire Administrative Rules, Lab 201.02, “means the transmittal of evidence or statements concerning the merits of a contested case to or from a hearings officer without notice to all parties to the proceeding and [47]*47not done in their presence.” Rule 203.02 states that unless authorized by law or rules of the labor department, “no person shall make an ex parte communication to any officer or employee of the department ... who is, or may reasonably be expected to be, involved in the decisional process in a contested case . . . .” N.H. Admin. Rules, Lab 203.02. The hearings officer specifically noted, with respect to petitioner’s counsel’s objection, that the report had been “admitted to the record as it was in the Labor Departments [sic] possession prior to August, 1991.” Moreover, the hearings officer referred to a conversation between the labor department and counsel’s office in which counsel discussed his opposition to the results contained in the impairment report. The petitioner, therefore, was certainly on notice of the fact that the impairment report had been transmitted to the department. We cannot agree that such communication fits within the definition of ex parte communication that Rule 203.02 is intended to prohibit.

Turning to the petitioner’s contention that the impairment report was not disclosed to her prior to the hearing and thus its admission was error, we do not agree. In order for us to set aside the decision of the hearings officer, the petitioner must show that she suffered material prejudice from admission of the impairment report. Attitash Mt. Service Co. v. Schuck, 135 N.H. 427, 430, 605 A.2d 1067

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Bluebook (online)
623 A.2d 741, 137 N.H. 43, 1993 N.H. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-blake-nh-1993.