In re Dean Foods

• Decision Date: 03 April 2009
• Docket Number: No. 2008–173.,2008–173.
• Citation: 969 A.2d 377,158 N.H. 467
• Court: New Hampshire Supreme Court
• Parties: Appeal of DEAN FOODS (New Hampshire Compensation Appeals Board).

158 N.H. 467

969 A.2d 377

Appeal of DEAN FOODS (New Hampshire Compensation Appeals Board).

No. 2008–173.

Supreme Court of New Hampshire.

Argued: Feb. 12, 2009.

Opinion Issued: April 3, 2009.

Devine, Millimet & Branch, P.A., of Manchester (James M. O'Sullivan and Elizabeth M. Murphy on the brief, and Ms. Murphy orally), for the petitioners.

Wyskiel, Boc, Tillinghast & Bolduc, P.A., of Dover (D. Lance Tillinghast on the brief and orally), for the respondent.

DUGGAN, J.

The petitioners, Gallagher Bassett Services, Inc., U.S. Fidelity & Guaranty Insurance Company and Dean Northeast, LLC d/b/a Garelick Farms, appeal the decision of the New Hampshire Compensation Appeals Board (CAB) to continue the respondent, John Eustace's, temporary total disability payments. We affirm.

The record supports the following facts. On November 7, 2003, Eustace (claimant) was injured while working as a milk delivery driver for Garelick Farms. He suffered a lower back injury after slipping on a piece of plastic while pulling a load of dairy products off a truck. He did not fall, but instead twisted his back to support the load. The claimant was initially treated at Elliot Hospital. One week later, he began treatment with Dr. Ashraf Guirgues. Dr. Guirgues restricted the claimant's driving and lifting, taking him out of work. The employer's workers' compensation insurance carrier, Gallagher Bassett, Inc., as adjusters for Fidelity and Guaranty Insurance Company (carrier), initially accepted the claim and paid temporary total disability benefits.

The claimant continued to be treated by Dr. Guirgues, but his pain persisted and Dr. Guirgues referred him to Dr. Manuel Sanchez in January 2004 for pain management. Dr. Sanchez treated the claimant with injections and medication. One year after the incident, the claimant was referred to Dr. Margaret Tilton for a permanent impairment rating. Dr. Tilton assessed the claimant as having a whole person impairment of thirteen percent.

The carrier requested a hearing, held on August 16, 2005, at the department of labor (DOL) to review the compensation and the extent of disability pursuant to RSA 281–A:48 (1999). The hearing officer ruled that the temporary total disability benefits should continue. The carrier appealed the decision to the CAB for a de novo hearing. The CAB found that the claimant remained disabled and continued disability benefits. There was no appeal from that ruling.

On September 7, 2006, the carrier requested a new hearing to review the compensation and the extent of disability. The hearing officer found a change in condition, based upon Dr. Stuart Glassman's independent medical examination, and terminated the claimant's disability benefits as of April 10, 2007. The claimant appealed to the CAB. At that hearing, Drs. Glassman and Sanchez testified in person and Dr. Tilton by deposition transcript.

Dr. Glassman testified based upon his two independent medical examinations of the claimant, one in February 2006, and a second in January 2007. In February 2006, Dr. Glassman diagnosed the claimant with lumbar strain

injury with exacerbation of pre-existing lumbar degenerative disc disease. Dr. Glassman disagreed with Dr. Tilton's impairment rating and rated the claimant as having a five percent whole person impairment based upon the AMA Guidelines to the Evaluation of Permanent Impairment. In January 2007, Dr. Glassman performed the second independent medical examination and diagnosed the claimant with a lumbar strain injury. Dr. Glassman noted that he had a non-work-related pre-existing lumbar degenerative disc disease and spondylolisthesis ; i.e., slight slippage of the vertebra above in relation to vertebra below. He read the claimant's electromyographic (EMG) study as unremarkable and found no evidence of radiculopathy

. Dr. Glassman testified that the clinical findings and diagnostic testing did not correlate with left leg radiculopathy. He stated that the claimant's current treatments were for the pre-existing condition and not the lumbar strain, which he believed had since resolved.

Dr. Sanchez testified that the claimant was referred to him for low back and leg pain in January 2004. Dr. Sanchez stated that the claimant had sensory changes to his lower extremities, with more significant numbness on the right side. Dr. Sanchez testified that the claimant has two long-standing conditions—degenerative disc disease

and spondylolisthesis. He testified that the claimant's condition was aggravated by the November 7, 2003 fall. Specifically, Dr. Sanchez testified that the incident resulted in tearing of the ligaments where the lumbar strain is, causing chronic inflammation

and pain. Dr. Sanchez initially treated the claimant with steroid injections; however, the claimant's pain continued shortly thereafter, signifying that the inflammation could not be reversed with steroids. The claimant was treated with physical therapy and medication, including narcotics. Dr. Sanchez testified that it is not unusual for low back pain to then develop into radiculopathy. Dr. Sanchez testified that an EMG may not detect radiculopathy.

Dr. Tilton testified that when she began treating the claimant, he had significant left-sided symptoms. Dr. Tilton observed the claimant with a foot drop; i.e., the inability to control the foot in the heel to toe motion. She diagnosed him with radiculopathy

, which caused the foot drop, and spondylolisthesis. Using the AMA Guidelines, Dr. Tilton evaluated the claimant with a thirteen percent impairment based upon the lumbar spine category including radiculopathy. Dr. Tilton testified that when she assesses a permanent impairment rating, she does not expect it to change to "any great extent" over time.

Dr. Tilton disagreed with Dr. Glassman's reading of the claimant's EMG. She saw an abnormality, but could not interpret the EMG as confirming the radiculopathy

. She testified that based upon the claimant's condition, he could have nerve symptoms on either side. Dr. Tilton agreed with Dr. Glassman's assessment of the claimant's pre-existing condition; however, she diagnosed the claimant's symptoms as causally linked to the November incident.

In its decision, the CAB found that "the vast majority of the evidence presented went to the issue of the claimant's medical condition and if it were related to the work injury." The CAB noted that "what was not entered into the record was any evidence whatsoever on the claimant's earning capacity." The CAB stated that both Drs. Glassman and Tilton assessed the claimant as suffering a permanent disability. The CAB found Dr. Glassman's 2007 diagnosis that the claimant's current treatment is not work-related to be "incongruous as it does not comport with the diagnosis and permanency of a year prior."

The CAB relied upon Dr. Sanchez's testimony that the claimant's current treatments are work-related, together with Dr. Glassman's 2006 diagnosis of permanent disability, to "result in a finding that at least some of the symptoms and conditions now suffered by the claimant are related to the work injury." The CAB found that the carrier failed to introduce any evidence that the claimant has an earning capacity, and thus stated: "The panel unanimously finds that the carrier has failed to prove that the claimant has an earning capacity which is required since at least some of his current condition is work-related." The carrier moved for a rehearing, which was denied. This appeal followed.

On appeal, the carrier argues the CAB erred in: (1) requiring the carrier to show earning capacity when it argued the injury was no longer work-related; (2) relying upon the first opinion of Dr. Glassman instead of his more recent opinion; (3) relying upon the treating physician, who opined that the claimant's injury was a cumulative trauma injury; and (4) finding that some of the claimant's symptoms are from the work-related injury but failing to specify which symptoms.

We will overturn the CAB's decision only for errors of law, or if we are satisfied by a clear preponderance of the evidence before us that the decision is unjust or unreasonable. Appeal of Woodmansee, 150 N.H. 63, 66, 834 A.2d 310 (2003). The CAB's factual findings are prima facie lawful and reasonable. See RSA 541:13 (2007). As the appealing party, the carrier bears the burden of proof. Woodmansee, 150 N.H. at 66, 834 A.2d 310.

We initially address the carrier's argument that the CAB erred in requiring that it prove earning capacity. The carrier maintains that because it argued that the claimant's injury ceased, it was not required to prove earning capacity. We disagree.

"We are the final arbiter of the meaning of the workers' compensation statute, and the nature and extent of compensation to the injured employee is governed by the express statutory language and that which can be fairly implied therefrom." Appeal of Hiscoe, 147 N.H. 223, 230, 786 A.2d 96 (2001) (quotation and ellipsis omitted).

RSA 281–A:48 provides, in pertinent part:

I. Any party at interest with regard to an injury occurring after July 1, 1965, may petition the commissioner to review a denial or an award of compensation ... by filing a petition ... upon the ground of a change in conditions, mistake as to the nature or extent of the injury or disability, fraud, undue influence, or coercion.

...

III. If a petitioner files for reducing or for ending compensation, the petitioner shall submit along with the petition medical evidence that the injured employee is physically able to perform his or her regular work or is able to engage in gainful employment.

(Emphases added.)

In Appeal of Jackson, 142 N.H. 204, 698 A.2d 1 (1997), we explained the meaning of "a change in conditions" within RSA 281–A:48. In Jackson, the carrier petitioned for a termination of the claimant's benefits due to a change in conditions, submitting evidence that the claimant had participated in some work. Jackson, 142 N.H. at 205, 698 A.2d 1. The CAB found that the claimant had...