concurring specially: Although I concur in the result mandated in the majority opinion, I do so based on the board’s *612allocation of the burden of proof and my uncertainty as to whether that allocation may have been crucial to the board’s determination of benefit status. I do not agree, however, that' evidence of the claimant’s medical condition arising from the 1987 medical examination should be unavailable to the board in its decision on remand. The majority would exclude that evidence based on the preclusive effect of a 1988 hearing award determining the appropriate amount of compensation for temporary total disability, appropriate medical, hospital and remedial care, and propriety of a scheduled permanent impairment award. The majority concludes that this award, and the carrier’s acceptance of the award, cast the temporary total disability status of the claimant in stone as of the date of the award, and make evidence of his limited work capacity prior to that date irrelevant.
There are two reasons why this should not be so. The issue before the board is whether the claimant’s current status, is one of temporary total disability or one of diminished earning capacity. There is no issue as to when a change of status took place, since there is no claim for retroactive adjustment of benefits. Thus, all evidence that is relevant to the issue of current status should be allowed. There is no preclusive effect of any determination of status, either by award or through consent. It is uncontested that at the time of award or consent, the claimant was entitled to temporary total disability benefits whether or not he had a total disability. Evidence of the absence of a total disability at the time of award or consent may still be relevant to the issue of whether the claimant is totally disabled at this time. RSA 281-A:48, III (Supp. 1995) calls for medical evidence of capacity to work without limiting such evidence to post-determination evidence.
Nor, should some preclusive res judicata, collateral estoppel, or plain estoppel effect be divined from an award or consent to status,would I hold that the 1988 hearing award, and its acceptance by the carrier, triggered such preclusion. The 1988 hearing was not concerned with status in any respect. See Petition of Gilpatric, 138 N.H. 360, 363, 639 A.2d 267, 269 (1994). Beyond issue preclusion, there is even less justification for evidence preclusion. See Olivieri v. City of Bridgeport, 10 A.2d 770, 772 (Conn. 1940).
I would allow the board to consider any evidence relevant to the current work status of the claimant.
THAYER, J., joins in the special concurrence.