Appeal of Briggs, 93-318

• Decision Date: 06 July 1994
• Docket Number: No. 93-318,93-318
• Citation: 138 N.H. 623,645 A.2d 655
• Parties: Appeal of Burleigh BRIGGS, (New Hampshire Department of Labor Compensation Appeals Board).
• Court: New Hampshire Supreme Court

Page 655

645 A.2d 655

138 N.H. 623

Appeal of Burleigh BRIGGS, (New Hampshire Department of Labor Compensation Appeals Board).

No. 93-318.

Supreme Court of New Hampshire.

July 6, 1994.

Richards, Gawryl & MacAllister, Nashua (Janine Gawryl, on the brief and orally), for petitioner.

Devine & Nyquist, Manchester (Corey Belobrow, on the brief and orally), for Manville Sales Corp.

Wadleigh, Starr, Peters, Dunn and Chiesa, Manchester (Dean B. Eggert, on the brief and orally), for B.N.Z. Materials, Inc.

THAYER, Justice.

The petitioner, Burleigh Briggs, appeals from a decision of the New Hampshire Department of Labor Compensation Appeals Board (board) denying him coverage for an osteoarthritic condition in his knees that he contends was exacerbated to the point of disability by his employment. The petitioner argues that the board erred in: (1) finding no accidental injury; (2) applying an incorrect standard of medical and legal causation; and (3) refusing to hold the record open for submission of additional medical reports after the hearing. Defendant Manville Sales Corporation (Manville) cross-appeals, arguing that it should be released from liability because it did not receive notice of the claim within the statutorily required period. We reverse in part, vacate in part, and remand.

From January 15, 1968, until the time of his disability on February 2, 1988, the petitioner worked in a plant owned first by Manville Corporation and then, from January 1, 1988, by B.N.Z. Materials, Inc. (B.N.Z.). The petitioner worked as a "dry mix man," spending eight hours each day lifting and carrying heavy weights and climbing numerous flights of stairs. Prior to his disability, the petitioner incurred several injuries to his knees. A football injury to his left knee in 1952 required surgery. He injured his left knee at work in 1969, at which time an X ray revealed mild arthritic changes. He injured his right knee in 1981 also at work, and X rays taken at the time showed "degenerative changes" in the knee. By 1987, there was evidence of arthritis in both knees, and the petitioner was treated for pain and crackling in his left knee as a result of this condition. On February 2, 1988, the petitioner's knees gave way while he was performing his usual job. He reported the incident to his B.N.Z. supervisor and then saw the company doctor, who referred him to Dr. Joseph. Dr. Joseph determined that the petitioner had severe osteoarthritis in both knees, and operated on the left knee to attempt to correct the problem. The petitioner then changed his treating physician to Dr. Lynn. He has been unable to work since February 2, 1988.

The petitioner initially sought benefits only from B.N.Z. He made no claim against and made no attempt to give direct notice to Manville until after his initial department of labor hearing against B.N.Z. on February 25, 1991. The petitioner ultimately notified Manville of his claim on December 26, 1991. His separate claims against B.N.Z. and Manville were combined for the purposes of appeal before the board.

In advance of the hearing before the board, the petitioner provided the board, B.N.Z. and Manville with medical reports from his two treating physicians, Dr. Joseph and Dr. Lynn, both of whom opined that the petitioner's heavy labor exacerbated his knee problems and caused them to become disabling. Five days before the hearing, Manville provided to the other parties and to the board the medical report of Dr. Emond, who, based upon a review of the petitioner's medical records, stated that although a specific sporting or work-related injury might be a trigger, heavy labor itself is not causally related to osteoarthritis. The petitioner at first objected to the submission of this report so close to the hearing date but withdrew his objection at the hearing. The petitioner also obtained and submitted at the hearing a report from Dr. Wolf who, based upon a review of the petitioner's medical file, disagreed with Dr. Emond's report and opined that the petitioner's "osteoarthritis is more severe as a result of his job, than it would have been had he experienced the normal aging process of a desk worker ... [and that] it is more likely than not that twenty years of heavy manual labor will aggravate a pre-existing osteoarthritic condition of the knees." The petitioner then sought to have the board hold open the record for the submission of an additional responsive report from Dr. Lynn, but the board refused to do so.

The board made numerous findings in its initial decision, the following of which form the basis for this appeal. It determined first that the petitioner, by reporting his knee injury to his supervisor at B.N.Z., "did everything he could have reasonably been expected to do in promptly reporting the incident," and that he had therefore given proper and timely notice to both B.N.Z. and Manville. The board then determined that the petitioner failed to meet his burden to prove "that the incident 2/2/88 was an incident of employment which caused the injury from a legal standpoint," or that the repeated trauma of the daily physical demands of the petitioner's job rose to the level of an accidental injury. We understand the last finding to turn on the accidental quality of the petitioner's injury rather than on a determination of medical or legal causation. The board noted that repeated trauma may result in a "compensable injury even though there was not a discreet incident," see, e.g., Kacavisti v. Sprague Electric Co., 102 N.H. 266, 269-70, 155 A.2d 183, 185 (1959), but, apparently in part because of the petitioner's preexisting degenerative condition, found that the petitioner had failed to show an accidental injury. The board found that the petitioner had had several injurious incidents at work, yet

"was able to return to work and apparently worked without missing any time thereafter because of problems with his knees. The apparent freedom from disabling injury was exhibited throughout his employment in spite of the heavy demands of the work. In light of this finding the Board was not convinced that the daily demands of the job rose to the level of an accidental injury."

After the board issued this decision, the petitioner moved for a rehearing in part because the board erroneously required a traumatic event to show an accidental injury. The board denied the motion, stating:

"While recognizing that stress at work can cause a preexisting condition to become disabling, the Board stands by its decision that the apparent freedom from disabling injury enjoyed by claimant throughout his employment in spite of the heavy demands of the work belie claimant's position that the work stressors were the precipitating factor in claimant's disability which commenced February 2, 1988."

This order suggests that the board accepted that cumulative work-related stress may have an impact on a preexisting condition so as to cause compensable disability even absent a traumatic event. Thus, the analysis may be seen as one of causation. Because the board apparently addressed both accident and causation issues in its opinions, we will address both here.

We do not overturn an agency decision or order, absent an error of law, unless it is clearly unjust or unreasonable. RSA 541:13 (1974); Appeal of Stetson, 138 N.H. 293, 295, 639 A.2d 245, 247 (1994).

We first turn to the accidental quality of the petitioner's injury. To obtain workers' compensation, the claimant must prove that the injury was accidental. New Hampshire Supply Co. v. Steinberg, 119 N.H. 223, 226, 400 A.2d 1163, 1165 (1979). Regardless of the presence of a pre-existing degenerative condition, an accidental injury within the meaning of the workers' compensation law need not be traumatic or dramatic, but rather may arise from routine activities that result in an unexpected effect. See id. at 226, 400 A.2d at 1165-66. A disability may develop gradually, and with the presence of some pain, but an acute manifestation occurring on a particular day which is so intolerable that it prevents the claimant from working is considered an accidental injury. Kacavisti, 102 N.H. at 269-70, 155 A.2d at 185. That the petitioner had experienced no loss of work time prior to the disability does not support the board's finding of no accident. Nothing in the record suggests that the injury was other than accidental, in the sense articulated by these cases, and to the extent that the board's decision was based upon the lack of an accident, we reverse.

The petitioner also argues that the board erred in determining that causation had not been proven. As we noted above, the board stated that

"the apparent freedom from disabling injury enjoyed by claimant throughout his employment in spite of the heavy demands of the work belie claimant's position that the work stressors were the precipitating factor in claimant's disability which commenced February 2, 1988."

Because this appears to be a determination that the petitioner failed to prove causation, we will address it as such. To show causation the petitioner bore the burden of proving that the cumulative work-related stress to the petitioner's knees probably caused or contributed to his disability under a two-pronged test. See Cheshire Toyota/Volvo, Inc. v. O'Sullivan, 129 N.H. 698, 531 A.2d 714 (1987); Steinberg, 119 N.H. 223, 400 A.2d 1163. Under this test, the petitioner must "prove legal causation, that is, that [his] injury is work-connected, and medical causation, that is, that [his] disability was actually caused by the work-related event." Tzimas v. Coiffures By Michael, 135 N.H. 498, 500, 606 A.2d 1082, 1083 (1992) (quotation omitted); see Averill v. Dreher-Holloway, 134 N.H. 469, 472, 593 A.2d 1149, 1151 (1991). The board's decision, based upon the petitioner's lack of time lost from work and previous disability, is incorrect under either test.

"The legal causation test defines the degree of exertion that is...