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Appeal of Fosher

Supreme Court of New Hampshire

December 2, 2013

Appeal of Robin Fosher,

Issued the following order:

The claimant, Robin Fosher, appeals an order of the New Hampshire Compensation Appeals Board (board) that denied her claim for worker's compensation benefits. She argues that the board erred in: (1) finding that she failed to establish that her condition was the product of her employment with In-Home, LLC (In-Home); and (2) disregarding the medical opinions of two treating physicians. We affirm.

We briefly restate the relevant facts in this case. In July 2010, the claimant began her employment with In-Home, a company that sold home accessories, gifts and furniture. In December 2011, In-Home's insurance carrier denied her request for worker's compensation benefits with the following explanation: "No objective evidence to substantiate a work injury arose in and out of the course and scope of employment. No evidence to support current medical treatment and disability are related to a work injury." After her request for benefits was also denied by a hearings officer at the department of labor, she appealed to the board.

The evidence before the board included that the claimant suffered pain in her right elbow and shoulder. She contended that her injury resulted from her work at In-Home, including lifting when making deliveries of furniture and rugs, and the restoration sanding and painting of furniture. In-Home noted that the claimant had been involved in a sledding accident in high school, which required surgery on her right shoulder. The claimant told her supervisor at In-Home that the injury had never "repaired properly." In-Home also argued that the claimant's extensive softball commitments, which included her role as pitcher on two adult co-ed teams, were the cause of her injury. The board denied her claim, finding in relevant part:

Two members of the Board panel have concluded that because there is no record evidence that Dr. Siegel knew of, considered or medically analyzed the claimant's actual job functions in considering his opinion but relied solely on the claimant's own medical conclusion the claimant has failed to establish by a preponderance of the evidence that her current pain experience is the product of her work for the defendant. Her claim is therefore denied.

To establish her eligibility for worker's compensation, the claimant was required to prove that her injuries arose "out of and in the course of employment." RSA 281-A:2, XI (2010). We review the board's decision under a standard established by statute. Appeal of Hartford Ins. Co., 162 N.H. 91, 92 (2011); RSA 541:13 (2007). All findings of the board upon all questions of fact properly before it are deemed prima facie lawful and reasonable. RSA 541:13. We will affirm the board's decision absent an error of law, or unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable. RSA 541:13; Appeal of Belair, 158 N.H. 273, 276 (2009). In reviewing the board's findings "our task is not to determine whether we would have found differently than did the board, or to reweigh the evidence, but rather to determine whether the findings are supported by competent evidence in the record." Appeal of Dean Foods, 158 N.H. 467, 474 (2009) (quotation omitted). As the appealing party, the claimant has the burden of demonstrating that the board's decision was erroneous. Appeal of Belair, 158 N.H. at 276.

The claimant first argues that the board erred in finding that she failed to establish that her condition was the product of her employment with In–Home. She argues that because this is not a case where the board "questioned the credibility of the claimant nor is it one where there were differing medical opinions, " the board "engaged in unsubstantiated speculation." We disagree.

In response to a written inquiry from the claimant's counsel, Dr. Siegel, her treating physician wrote: "The injuries certainly do appear to be related to work as work in the overhead position would at a minimum exacerbate this condition and more than likely did appear to cause this problem." He later wrote: "In terms of her elbow, I believe that this [is] compensatory based from her right shoulder and, therefore, also believe that this is related within a reasonable degree of medical certainty to her work." In-Home disputed that the claimant's duties required her to work in the overhead position, and argued that her treating physicians failed to conduct an independent analysis of her duties while employed by In-Home. Accordingly, the board could properly have rejected Dr. Siegel's opinion after finding that it was based upon a misconception of what the claimant's duties were. See, e.g., Appeal of Fay, 150 N.H. 321, 326 (2003). Indeed, in its ruling on the claimant's motion for rehearing, the board stated in relevant part that it did not share "the same perspective on the claimant's medical evidence as does claimant's counsel" because "the evidence at the hearing established that the claimant was not required to engage in sanding over her head as she reported to her medical providers."

For the same reason, we reject the claimant's second claim of error that the board disregarded the medical opinions of two physicians who treated the claimant. We have held that the award of worker's compensation benefits is not mandated in every case in which the claimant presents uncontroverted medical testimony on the issue of causation. See id. at 325. Rather, the board may ignore uncontradicted medical testimony but must identify the competing evidence or the considerations supporting its decision to do so. Id. Moreover, the board is free to disregard expert testimony, particularly when the expert opinion derives at least in part from the patient-claimant herself, whose credibility is thereby the subject of inquiry. Id. at 325-26.

Having reviewed the record before us, we conclude that the board's findings are supported by competent evidence in the record. Accordingly, we affirm its decision.

Affirmed.

HICKS, CONBOY, and LYNN, JJ., ...


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