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.
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.
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.
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.
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.
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
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.
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.
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.
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."
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.
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.
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).
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