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Appeal of Secor

Supreme Court of New Hampshire

June 13, 2018

Appeal of Deborah Secor

         The claimant, Deborah Secor, appeals an order of the New Hampshire Compensation Appeals Board (board) denying her request that certain medical treatments, prescriptions, and mileage, totaling $5, 893.22, be paid by the employer, The TJX Companies, Inc. She argues that the board erred by allowing the employer to relitigate the causal relationship between her work injury and the conditions for which the New Hampshire Department of Labor (DOL) previously had approved medical care. We reverse and remand.

         We will not disturb the board's decision absent an error of law unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable. Appeal of Desmarais, 170 N.H. 134, 136 (2017); see RSA 541:13 (2007). "The [board's] factual findings are prima facie lawful and reasonable." Appeal of Dean Foods, 158 N.H. 467, 471 (2009). As the appealing party, the claimant bears the burden to show that the board's decision was erroneous. See id.

         An employer responsible for an employee's work injury has a continuing obligation to pay for medical expenses for as long as is required by the employee's condition. Appeal of Hooker, 142 N.H. 40, 44 (1997); see RSA 281-A:23, I (2010). The determination as to whether the employer is responsible for an injured employee's continuing medical expenses requires us to examine the causal relationship between the conditions for which the employee is being treated and the original work-related injury. Id.

         The record shows that, on August 13, 2008, the claimant was moving merchandise at the employer's department store when she felt a sudden onset of pain. She was diagnosed with an injury to her left arm and neck. She received temporary total disability payments for a period and, in August 2009, settled her disability claim with the employer. She did not return to work.

         In 2011, when the employer contested responsibility for payment of certain prescription medications for pain and depression, the claimant requested a hearing. The employer provided the DOL hearing officer with an October 18, 2011 report from an independent medical examiner, Dr. Glassman, who opined that the claimant had sustained a cervical strain and left shoulder strain, both of which had resolved, and that any further medication was not reasonable, necessary, or related to the work injury. Dr. Glassman further opined that the claimant's depression was unrelated to the work injury.

         In a December 9, 2011 decision, the hearing officer rejected Dr. Glassman's opinion. Based upon a March 16, 2009 nerve conduction study by the claimant's neurologist, Dr. Forrest, the hearing officer found that, as a result of her work injury, the claimant was suffering from a median neuropathy and lower trunk brachial plexopathy. Based upon medical documentation from the claimant's treating psychologist, Dr. Zimmerman, and a nurse practitioner, Kimberly Fader, the hearing officer concluded that her depression also was related to her work injury. The DOL approved the following prescriptions: Cymbalta for nerve pain; Oxycodone and OxyContin for pain control; and a generic brand of Prozac for depression. The employer did not appeal this decision.

         In 2012, the employer requested a hearing on its continuing responsibility to pay for the claimant's depression medication. In a decision dated July 27, 2012, a different hearing officer similarly rejected Dr. Glassman's opinion that the claimant's depression was unrelated to her work injury and approved the generic Prozac as reasonable, necessary, and related to the August 13, 2008 work injury. The employer did not appeal this decision.

         In 2015, the employer contested responsibility for payment of acupuncture treatment, and the claimant requested a hearing. The employer submitted an October 6, 2014 report from an independent medical examiner, Dr. Mariorenzi, who opined that, as a result of her work injury, the claimant had experienced a cervical strain and a left shoulder strain with full recovery, and that acupuncture was not required. In a March 27, 2015 decision, the hearing officer rejected Dr. Mariorenzi's opinion and accepted the opinions of the claimant's treatment providers, Drs. Giovan and Shi, that the acupuncture treatment was reasonable, necessary, and related to the work injury.

         In 2016, after the employer contested its responsibility to pay for acupuncture and mental health treatment, the claimant requested a hearing. In a January 24, 2017 decision, the hearing officer found that the claimant had sustained her burden to prove that acupuncture and mental health care remained reasonable, necessary, and related to her work injury. The employer appealed the decision to the board.

         In the proceeding before the board, the employer submitted a March 2, 2017 report from an independent medical examiner, Dr. Sabra, who opined that the claimant had never sustained a brachial plexus injury, and that, "This whole case has been built on [a] false interpretation of the EMG/nerve conduction study" from 2009. Dr. Sabra opined that the claimant sustained a muscular sprain on August 13, 2008, which had resolved. The employer also submitted a May 23, 2017 report from Dr. Bielawski, an independent medical examiner specializing in electrodiagnostic medicine, who agreed with Dr. Sabra that the 2009 EMG test results showed no evidence of a lower trunk brachial plexus injury. The claimant submitted a May 24, 2017 letter from Dr. Forrest explaining the reasons for his conclusion in 2009 that the findings from the 2009 EMG "demonstrate a moderate median neuropathy at the left wrist and suggest a concurrent left lower trunk brachial plexopathy."

         Based upon the reports of Drs. Sabra and Bielawski, the board found that "new medical evidence establishes that the diagnosis of left lower trunk brachial plexus injury is a mistake from the medical information from the 2009 EMG, " and that "the uncontested evidence is that the original injury was a minor muscle strain." Although Dr. Forrest stated that he "agree[d] with some of [Dr. Sabra's] statements and disagree[d] with others, " the board interpreted Dr. Forrest's May 2017 letter to disavow his 2009 opinion. The board concluded that the claimant failed to meet her burden to prove that the employer was responsible for the acupuncture and mental health treatment. This appeal followed.

         The claimant argues that the board erred by allowing the employer to relitigate the causal relationship between her work injury and the conditions for which the DOL had previously approved treatment. She argues that collateral estoppel precludes the board from revisiting this issue. We agree.

         The doctrine of collateral estoppel applies to final agency decisions in workers' compensation cases. Appeal of Carnahan, 160 N.H. 73, 77 (2010). The doctrine precludes parties from relitigating issues that were litigated in a prior proceeding. Appeal of Wingate, 149 N.H. 12, 15 (2002). Whether the employer is collaterally estopped from litigating causation presents an issue of law, which we review de novo. Id. at 14. For collateral estoppel to apply: (1) the issue subject to estoppel must be identical in each action; (2) the earlier action must have resolved the issue finally on the merits; (3) the party to be estopped must have appeared in the first action, or have been in privity with someone who did; (4) the party to be estopped must have had a full and fair opportunity to litigate the issue; and (5) the finding must have been essential to the first judgment. Farm Family Mut. Ins. Co. v. Peck, 143 N.H. 603, 605 (1999).

         We address the collateral estoppel factors. First, the prior proceedings involved the same parties, and the employer does not argue that, in the prior proceedings, it lacked a full and fair opportunity to litigate. In addition, the DOL's prior decisions became final after thirty days because the employer did not appeal them. See RSA 281-A:43, I(b) (2010). Thus, for purposes of collateral estoppel, the dispositive question is whether the causation issue in this action is identical to the causation issue previously decided, and whether it was essential to the prior decisions. The employer argues that the issue is not identical because this appeal involves medical treatment from November 14, 2015 to December 6, 2016, a period that was not previously addressed. However, the board did not find that the conditions for which the DOL previously had approved treatment had resolved, and, consequently, that continuing treatment no longer was reasonable or necessary; rather, it found that the claimant's work injury did not cause the conditions for which it had previously approved treatment. The employer was only responsible for medical expenses that were causally related to the work injury. See, e.g., Appeal of Sutton, 141 N.H. 348, 350-51 (1996). Thus, the DOL's prior decisions necessarily determined that a ...


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