IME, Facebook Baking Business Conspire to Reduce Nurse's Benefits

02 Mar, 2021 Frank Ferreri

                               

Concord, NH (WorkersCompensation.com) – A worker’s reports of continued pain weren’t enough to establish that she couldn’t perform sedentary work in line with a doctor’s conclusions.

Instead, in In Re Hoff, No. 2019-0622 (N.H. 02/24/21), the New Hampshire Supreme Court explained that an independent medical exam and social media posts cut against a nurse’s claim that her benefits shouldn’t be reduced.

Medical Conclusions

A licensed practical nurse for a hospital experienced an injury at work, after which she reported lower back pain and numbness in her legs. An MRI revealed a lumbar disc protrusion. The nurse began receiving temporary disability benefits.

Following surgery, the nurse’s back pain persisted, and she reported that her leg symptoms returned. She underwent an independent medical evaluation, and the doctor performing it concluded that the nurse could do desk work but should avoid long periods of standing or walking.

After the IME, the hospital offered the nurse a temporary position as a patient access representative, which would have involved a “variety of secretarial tasks.” The nurse did not return to work nor communicate with the hospital after receiving the offer.

The nurse requested a New Hampshire Department of Labor hearing to review her benefits eligibility, and the hearing officer reduced her benefits to a fixed partial rate. She appealed the decision to the state’s appeals board, which upheld the finding to reduce the nurse’s compensation to a fixed rate.

After the board rejected the nurse’s request for reconsideration, she appealed to the New Hampshire Supreme Court.

Sedentary Work

Under New Hampshire law, courts analyzing possible reductions in workers’ benefits determine: 1) whether the worker has experienced a change of conditions; and, if so, 2) whether that change affected her earning capacity.

According to the court, the board and hearing officer’s decision were correct because medical evidence showed that the nurse could perform “a sedentary occupation which required minimal standing, walking, and lifting.”

The court noted that medical evidence showed that the nurse could perform sedentary work within her restrictions. Additionally, the court pointed out that the nurse had experience as a patient access representative.

Although the nurse argued that her condition worsened after the IME, the court found the argument “unavailing” because the nurse didn’t make her doctor aware of the hospital’s temporary, sedentary job offer. The doctor had concluded that the nurse could “tolerate full-time employment at a sedentary physical demand level.”

The court also pointed out that Facebook posts suggesting that the nurse may have been involved in a home baking business undermined her contentions that she was unable to do sedentary work and didn’t have earning capacity.

As a result, the court affirmed the board’s decision in the hospital’s favor.

 


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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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