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Appeal of Evans Group Inc.

Supreme Court of New Hampshire

August 29, 2014

Appeal of Evans Group, Inc.,

The petitioner, Evans Group, Inc., appeals the decision of the New Hampshire Compensation Appeals Board (board) in which the board found that the claimant, Cynthia Joyce, sustained a work-related injury on November 25, 2012, and that the petitioner is responsible for payment of indemnity and medical benefits related to the injury. The petitioner argues that the claimant failed to meet her burden to prove that work-related activities caused her injury and that the board failed to properly analyze the causal relationship between the claimant's existing medical condition and her pre-existing injuries. The petitioner also argues that the board violated its due process rights to a fair and impartial hearing by failing to consider each of the claimant's prior work-related injuries in its analysis. We affirm.

We will not disturb 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. Appeal of Redimix Cos., 158 N.H. 494, 496 (2009); RSA 541:13 (2007). The appealing party has the burden of demonstrating that the board's decision was erroneous. Appeal of Redimix, 158 N.H. at 496.

To support a claim for workers' compensation, the claimant must demonstrate that her injuries arose "out of and in the course of employment." RSA 281-A:2, XI (2010). To show this, the claimant must prove by a preponderance of the evidence that her work-related activities probably caused or contributed to her disability. Appeal of Redimix, 158 N.H. at 496. The test for causation has two prongs: legal causation and medical causation. Id. Legal causation entails a showing that the claimant's injury is in some way work-related, while medical causation requires a showing that the injury was actually caused by the work-related event or condition. Id.

We first address the petitioner's argument that the claimant failed to meet her burden to prove medical causation. "The test for medical causation requires the claimant to establish, by a preponderance of the evidence, that the work-related activities probably caused or contributed to the employee's disabling injury as a matter of medical fact." Appeal of Kehoe, 141 N.H. 412, 417 (1996) (quotation, emphasis, and brackets omitted). "Medical causation is a matter properly within the province of medical experts, and the board is required to base its findings on this issue upon the medical evidence rather than solely upon its own lay opinion." Id. (quotation and brackets omitted).

The record shows that the claimant first sought medical attention for her injury on November, 27, 2012, at Catholic Medical Center, where she was seen by Monica A. Ball, P.A. In her office note after the initial examination, Ball noted that the claimant injured her back two days earlier "after repetitively walking up and down a ladder." Ball diagnosed the condition as "[m]uscle strain in lumbar region with possible DDD [degenerative disc disease] exacerbation." She opined that "this injury and disability is a result of the injury described" in the report.

On appeal, the petitioner asserts that the claimant failed to meet her burden to prove medical causation because Ball "specifically removed" this statement of medical causation from her reports "after other medical testing was performed." Although Ball does not repeat her statement of medical causation in subsequent office notes, there is nothing in the record to support the petitioner's claim that Ball "removed" the statement of causation from her reports, or to support an inference that Ball changed her opinion on causation.

When the injury had not resolved after two weeks, Ball referred the claimant to Robert Monighetti, M.D., for an evaluation. In his December 19, 2012 note, Dr. Monighetti noted that the claimant's "problem began on 11/25/12 when while at work she was going up and down a ladder repeatedly putting up Christmas lights which had to be attached overhead." Dr. Monighetti did not attribute the claimant's condition to any cause other than the described work-related activities, and on the workers' compensation medical form, he checked the box indicating that the claimant's condition resulted from her injury at work.

The petitioner provided the board with a contrary opinion from Victor Gennaro, D.O., who, after reviewing the medical records at the petitioner's request, concluded in an August 21, 2013 report that the claimant had a preexisting, non-work-related condition, degenerative disc disease, which had not fully stabilized, and that it was unlikely that the November 25, 2012 "episode" was of a "magnitude which one would consider substantial." However, the board was not required to accept Dr. Gennaro's opinion. See Appeal of Lalime, 141 N.H. 534, 540 (1996) ("[W]e will not overturn a determination of the fact finder who is in the best position to weigh the competing evidence."). "Because a claimant's treating physicians have great familiarity with [her] condition, their reports must be accorded substantial weight." Appeal of Morin, 140 N.H. 515, 519 (1995) (quotation omitted). Accordingly, we conclude that the record supports the board's conclusion that the claimant met her burden to prove medical causation. Appeal of Redimix, 158 N.H. at 496.

We next address the petitioner's argument that the board's legal causation analysis was flawed because the board failed to determine whether the claimant's pre-existing medical condition was work-related. The legal causation test requires the claimant to show that her work conditions contributed something substantial to her disability; i.e., that work activities presented greater risks of injury than those encountered in her non-employment activities. See id. at 497. "The test to be used depends upon the previous health of the employee." Id. (quotation omitted). When a claimant has a preexisting work-related condition, "the claimant must show that the new work-related injury was an independent cause of [her] current disability." Id. at 498. To determine this requires examining whether the claimant's pre-existing condition stabilized before the new injury occurred. Id. "If the claimant's pre-existing condition stabilized, then the subsequent incident is more likely an independent cause of the resulting disability." Id. (quotation omitted).

The petitioner asserts that the claimant's pre-existing condition was degenerative disc disease, which was not work-related. However, the board, after first noting that the claimant "had had an injury 20 years earlier, " concluded that the injury had resolved many years before. The board then discussed in detail the claimant's multiple work-related injuries and found that the claimant's medical condition had stabilized prior to the November 25, 2012 injury. The board then concluded that the November 25, 2012 injury was a "substantial trauma inducing event." Although the board did not expressly find the claimant's pre-existing condition to be work-related, we conclude that its decision implicitly includes such a finding, and that the board correctly employed the legal causation test that applies when a claimant's pre-existing condition is work-related. See id.

The petitioner next argues that the board erred in concluding that the claimant met her burden to prove legal causation. To meet this burden, the claimant was required to show that the November 25, 2012 incident was an independent cause of her resulting disability. See id. Based upon Dr. Gennaro's report, the petitioner argues that the claimant's medical condition never fully stabilized after an April 19, 2011 work injury, and that the November 25, 2012 incident was not an independent cause of her disability. On April 19, 2011, the claimant felt a pull in her lower back after lifting a glass sneeze guard at work. She was treated that day at Catholic Medical Center, where she was diagnosed with acute lumbar strain and acute right sciatica and was advised to remain out of work until she was cleared by the occupational health clinic. Her follow-up visits were with Ron Lamontagne, M.S., A.P.R.N., who diagnosed a muscle strain. Following a May 26, 2011 examination, Lamontagne reported that the claimant was "[f]eeling much better, 100% better today, " and that her muscle strain was "clinically resolved." He released her to full-time, restricted duty. Kenneth Polivy, M.D., an orthopedic surgeon who reviewed the claimant's medical records at the request of a prior insurer, noted in his March 18, 2013 report that the claimant sustained a "lumbar musculoskeletal sprain as a result of a work injury on April 19, 2011." He concluded: "In my opinion, more probably than not, the injury of April 19, 2011, resolved by June 2011, after which time [the claimant] did not return for treatment until a new report of pain in December 2011."

Although Dr. Gennaro opined that the claimant had a pre-existing degenerative disc disease of her lumbar spine which predated her April 19, 2011 injury, and that her condition never fully stabilized thereafter, the board was not required to accept Dr. Gennaro's opinion. See Appeal of Lalime, 141 N.H. at 540. Accordingly, we conclude that the medical record supports the board's findings that the November 25, 2012 incident at work was a "distinct and trauma inducing event, " resulting in "[a] much more serious injury, " and that the claimant met her burden to prove legal causation. Appeal of Redimix, 158 N.H. at 498.

Finally, the petitioner argues that the board violated its due process rights to a fair and impartial hearing by failing to consider each of the claimant's work-related injuries between April 19, 2011, and November 25, 2012. The record, however, does not support the petitioner's assertion that the board failed to consider each of the claimant's work-related injuries between April 19, 2011 and November 25, 2012. The claimant sustained minor work-related back injuries on December 20, 2011, March 21, 2012, and July 8, 2012, none of which resulted in time lost from work. In its findings, the board specifically refers to each of these work-related incidents and the injuries that resulted from each incident. The board then described the November 25, 2012 injury as a "much more serious injury, " and noted that the claimant "was able to differentiate the level and type of pain from her previous injuries." We are not persuaded that the board was required ...


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