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Appeal of Fournier

Supreme Court of New Hampshire

November 24, 2010

Appeal of Brenay Fournier

UNPUBLISHED OPINION

The claimant, Brenay Fournier, appeals a decision by the New Hampshire Compensation Appeals Board (CAB) finding that she failed to meet her prima facie burden of showing that the surgery for which she requested pre-approval from the employer's insurer, One Beacon Insurance Company (One Beacon), was causally related to her original compensable injury. See RSA 281-A:23, I (2010); see also Appeal of Lalime, 141 N.H. 534, 537 (1996). We reverse and remand.

We will not disturb the CAB's decision absent an error of law, or unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable. Appeal of Redimix Cos., 158 N.H. 494, 496 (2009); RSA 541:13 (2007). The appealing party has the burden of demonstrating that the CAB's decision was erroneous. Appeal of Redimix Cos., 158 N.H. at 496.

"To obtain workers' compensation benefits, a claimant has the initial burden to establish a prima facie case." Appeal of Lalime, 141 N.H. at 537 (quotation omitted). Once the claimant has met this burden, the burden of production shifts to the employer or its insurer to rebut the claims made. See id. The burden of persuasion remains with the claimant. Id.

This case involves One Beacon's responsibility to pay for surgery to the claimant's left rotator cuff. Under RSA 281-A:23, I, an employer's insurance carrier "shall furnish or cause to be furnished to an injured employee reasonable medical, surgical, and hospital services . . . for such period as the nature of the injury may require." Under this provision, "[a]n employer has a continuing obligation to provide or to pay for medical, hospital, and remedial care for as long as is required by an injured employee's condition where it bears liability for the initial injury that necessitated the subsequent health care." Appeal of Wingate, 149 N.H. 12, 15 (2002) (quotation omitted).

A claimant is entitled to compensation for medical treatment only if the condition or disability requiring the treatment is causally related to the initial compensable injury and the treatment itself is required by the original injury. Id. A condition or disability requiring treatment is causally related to the initial injury when it is the "direct and natural result" of that injury. Appeal of Bergeron, 144 N.H. 681, 684 (2000).

The injured employee also bears the burden of proving that the subsequent medical treatment is reasonable. Appeal of Wingate, 149 N.H. at 15. Determining the reasonableness of the treatment sought is not outcome dependent. Appeal of Lalime, 141 N.H. at 538. The proper analysis is whether objective evidence shows that when the shoulder surgery was sought "it was reasonable for [the claimant] to seek further treatment, be it diagnostic or palliative." Id.

The claimant argues that the CAB erred when it found that she failed to meet her prima facie burden of producing evidence that the condition that necessitated the proposed surgery is causally related to her original work-related injury, the surgery itself is required by her original injury, and that it was reasonable for her to seek further treatment. We agree.

Under a prima facie standard, the inquiry is whether the claimant has proffered evidence, which if credited, is sufficient to support the requisite findings. See Appeal of Kruzel, 143 N.H. 681, 685 (1999) (claimant met prima facie burden of producing evidence that he was totally disabled from practicing general dentistry by producing three insurance disability forms in which three treating physicians opined that he was totally disabled); Tzimas v. Coiffures by Michael, 135 N.H. 498, 501 (1992) (to meet prima facie burden of proving that original injury is legally and medically caused by work, claimant "must produce evidence to prove it is more likely than not that her injury was work-related").

The claimant presented her treating physician's December 23, 2008 letter in which the physician opined that the claimant's "left rotator cuff tendonitis and impingement syndrome . . . was felt to be related to the work injury." The physician explained that, in her opinion, the claimant's work injury, "cervical radiculopathy with weakness in C5-6 innervated muscles, " caused "some weakness about the shoulder girdle, " which led "to an impingement syndrome." The physician further opined that the claimant was not at a medical end point and that she might benefit from rotator cuff surgery, "i.e. subacromial decompression." The physician acknowledged that "[a]lthough this may not alleviate [the claimant's] symptoms altogether it would likely decrease the impingement syndrome allowing her to make further gains."

In other correspondence and notes, the claimant's treating physician similarly opined that the claimant's "impingement syndrome" was related to her original work injury. In a February 2, 2007 note, the claimant's physician opined that the claimant's "L cervical radiculopathy at C5-6 level, " which is the original work injury, caused "weakness of the L rotator cuff muscles which are C5-6 innervated." The physician noted that this was "causing mechanical changes about the L shoulder and producing an impingement syndrome of the rotator cuff with tendonitis." In a February 20, 2007 note, the physician diagnosed the claimant as having "L C5-6 radiculopathy associated with disc herniation" with associated "L rotator cuff weakness and impingement." Both of these diagnoses, the physician stated, "are associated with the work related injury/activity as outlined previously." In notes from office visits on February 22, 2007, March 15, 2007, July 2, 2007, July 18, 2007, August 15, 2007, September 12, 2007, June 4, 2008, September 5, 2008, January 9, 2009, March 6, 2009, April 17, 2009, September 9, 2009, and October 14, 2009, the treating physician states similar opinions.

Additionally, the claimant produced office notes and letters from M. Dennis Wachs, M.D. of New Hampshire Orthopaedic Surgery, P.A. In an office note from July 31, 2008, Dr. Wachs observed that although the claimant's rotator cuff was not torn, an MRI of her left shoulder showed impingement. Dr. Wachs opined that the claimant "needs to have her shoulder arthroscoped to minimize the impingement and resect the distal clavicle." Doing so, he opined, would give her "some capability with respect to employability." In a March 12, 2009 letter, Dr. Wachs summarized his opinion as follows: "To summarize, [the claimant's] initial injury, in my opinion, did injure the left shoulder at the same time that she injured her neck. She has had some other shoulder problems on the right side so I think that she may have had some pre-existing difficulty here. I do think that the injury did aggravate it. I do not think she is going to have significant improvement without something being done surgically to clear her bursitis and debride her acromion, giving her more room in the shoulder, per se."

The claimant also submitted evidence showing that her original work-related injury was not only to her neck, but also to her left shoulder. For instance, documents from the claimant's emergency room visit two days after the original injury stated that she injured her left shoulder at work while pulling a large metal cart. While an MRI taken soon after the original work injury showed no evidence of a rotator cuff tear, a note from the claimant's initial consultation with Lewis Physical Medicine Associates, P.A. stated that this same MRI "showed some impingement." A January 2, 2007 letter from the Pain Management Center at Elliot Hospital explains that the neck pain the claimant suffered from the original injury radiates "into her left shoulder." This letter confirmed that the MRI of the claimant's shoulder showed "some impingement, " although no evidence of a rotator cuff tear. Dr. Razvi, who signed the January 2, 2007 letter diagnosed the claimant as suffering form "C5-6 leftward disk herniation with left arm C5 radicular symptoms." A January 26, 2007 office note reveals the same diagnosis. In its brief, One Beacon cites to this diagnosis as the original work injury that it accepted.

This evidence was sufficient to meet the claimant's prima facie burden of producing evidence to show that the shoulder condition for which she sought rotator cuff surgery is causally related to her original work-related injury, the surgery itself is required by her original injury, and that it was reasonable for her to seek further treatment. Consequently, the CAB erred by failing to shift the burden of production to One Beacon to rebut the claimant's evidence, and then, by failing to determine ...


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