In re CNA Ins. Co.

• Decision Date: 17 September 2002
• Docket Number: No. 2000–779.,2000–779.
• Citation: 148 N.H. 317,807 A.2d 1227
• Court: New Hampshire Supreme Court
• Parties: Appeal of CNA INSURANCE COMPANY (New Hampshire Compensation Appeals Board).

148 N.H. 317

807 A.2d 1227

Appeal of CNA INSURANCE COMPANY (New Hampshire Compensation Appeals Board).

No. 2000–779.

Supreme Court of New Hampshire.

Argued June 19, 2002.

Opinion Issued Sept. 17, 2002.

Sulloway & Hollis, P.L.L.C., of Concord (James E. Owers and Derek D. Lick on the brief, and Mr. Owers orally), for the petitioner.

Patch & Fitzgerald, P.A., of Manchester (Edward F. Patch on the brief and orally), for the respondent.

Shanelaris & Schirch, P.L.L.C., of Nashua (Catherine E. Shanelaris and Jane M. Schirch on the brief) for the claimant.

DALIANIS, J.

The petitioner, CNA Insurance Company (CNA), appeals a decision of the New Hampshire Compensation Appeals Board (board). The board held that CNA, rather than the respondent, Acadia Insurance Company (Acadia), was liable for the claimant's, Charmaine Pescinski's, disability benefits. We vacate and remand.

The following facts were either found by the board or are contained in the record. The claimant worked for Delta Dental Plan of New Hampshire as a customer service representative. Prior to joining Delta Dental, she had worked in various jobs and received two years of college education, studying to be a medical assistant. Her job duties at Delta Dental included, among other things, answering as many as 100 telephone calls each day, using a computer and taking written notes. On or about November 19, 1997, the claimant began experiencing pain and swelling in her right hand and reported her symptoms to her supervisor. On December 9, 1997, she was diagnosed with atypical carpal tunnel syndrome. The record does not contain a definition of atypical carpal tunnel syndrome.

Although the claimant was not placed on medical work restriction, Delta Dental modified her job requirements on a temporary basis. These modifications alleviated her symptoms somewhat but did not result in a complete abatement of her condition. In March 1998, the claimant reported an exacerbation in her condition due to typing and writing, complaining that the pain in her hand became progressively worse during the week. Her physician opined that her condition would not improve unless her workstation were ergonomically improved, her work hours were reduced or she were moved to a different job.

On December 1, 1998, Delta Dental changed workers' compensation carriers from CNA to Acadia. The claimant did not seek medical treatment for her condition again until April 1999, when her symptoms recurred, causing pain in both her right and left wrists and forearms. In June 1999, the claimant began missing work periodically and eventually she underwent surgery in April 2000. The claimant received increases in pay after the onset of her atypical carpal tunnel syndrome.

On January 28, 2000, the New Hampshire Department of Labor (DOL) hearing officer ruled that Acadia was liable for the claimant's benefits. The hearing officer found that the claimant sustained a cumulative trauma injury, which became disabling on June 25, 1999, when she first missed time from work. On appeal, there was no dispute before the board that the claimant's atypical carpal tunnel syndrome was causally related to her employment at Delta Dental. The only issue before the board was the determination of the date of injury and, therefore, the responsible carrier. The board reversed the DOL decision, holding that CNA was the responsible carrier because "the claimant suffered a disabling injury which was manifested in November of 1997 when CNA was the employer defendant's insurer." It ruled that the claimant experienced a loss in earning capacity in November and December 1997. Following CNA's motion for rehearing, the board reaffirmed its decision.

"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 Bergeron, 144 N.H. 681, 683, 749 A.2d 296 (2000) ; see RSA 541:13 (1997). We consider the board's findings of fact to be prima facie lawful and reasonable. See RSA 541:13.

CNA argues that the board erred by finding, without the assistance of expert testimony, that the claimant suffered a diminished earning capacity in November 1997. Acadia argues, however, that it is not necessary to consider diminished earning capacity because the claimant did not sustain a cumulative trauma injury. It argues instead that the board properly determined that the claimant suffered a discrete compensable injury on November 17, 1997, that remained unstable and debilitative thereafter, making CNA the responsible carrier. Alternatively, Acadia asserts that the board did not err in finding, without the aid of expert testimony, that the claimant experienced a diminished earning capacity in November 1997.

The nature of the claimant's injury is the threshold issue in this case. If she sustained a discrete injury in November 1997, which remained unstable and debilitative thereafter, then the date of her injury would "relate back" to the November 1997 injury, rendering CNA the responsible carrier. See Appeal of Newton, 146 N.H. 186, 189, 769 A.2d 363 (2001). If, however, the claimant sustained a cumulative trauma injury, then the date of her injury would be when she sustained a diminished earning capacity. Appeal of Wausau Ins. Cos., 143 N.H. 478, 480, 727 A.2d 988 (1999). Unlike discrete injuries, cumulative traumas are not compensable until the date the disability arises, see Appeal of Briggs, 138 N.H. 623, 631, 645 A.2d 655 (1994), because it is not possible to identify a single event, occurring at a particular date and time, that caused the injury. See King v. DC Dept. of Employment Services, 742 A.2d 460, 468–69 (D.C.1999).

We disagree that the board treated the claimant's injury as a discrete injury. In its decision, the board describes the claimant's case as a cumulative trauma case and cites her diminished earning capacity as determinative of measuring her date of injury. While the board does state that the injury resulted from a sudden onset of symptoms, we do not construe its decision as finding her injury to be anything other than a cumulative trauma injury. Even assuming, however, that the board found the claimant's injury to be a discrete injury, that decision is not supported by the evidence and is legally erroneous.

Carpal tunnel syndrome is generally classified as a cumulative trauma disorder resulting from repetitive motion. See Duvall v. ICI Americas, Inc., 621 N.E.2d 1122, 1125–26 (Ind.Ct.App.1993) ; see also McCluskey, The Illusion of Efficiency in Workers' Compensation "Reform," 50 Rutgers L.Rev. 657, 776–77 (1998). Nevertheless, under certain circumstances, carpal tunnel syndrome can be caused by a single traumatic event. See Ogden Aviation Services v. Saghy, 32 Va.App. 89, 526 S.E.2d 756, 762–63 (2000) (claimant's carpal tunnel syndrome developed suddenly when he lifted fuel hose); Bond v. W.C.A.B. (Belmont Center), 711 A.2d 554, 557 (Pa.Cmwlth.1998) (claimant's carpal tunnel syndrome resulted from single incident in which he was physically abused by patients at psychiatric hospital).

The medical evidence in this case does not support a finding that the claimant's injury was caused by a single identifiable event. Rather, the evidence establishes that the claimant's carpal tunnel syndrome resulted from repetitive motion or overuse of her hands while performing her job functions. As one physician noted, the claimant's carpal tunnel syndrome was "the result of her work in which she has repetitive use of her hands, typing, writing, and answering phones." In addition, another physician opined that her condition "originally occurred in November 1997 and is causally related to her activity at that time and before that time," and that the condition in her left wrist was related to repetitive motion over several months. While the claimant's treating physician did note that she suffered a sudden onset of symptoms on November 19, 1997, neither he nor any other physician opined that the claimant's condition resulted from a single traumatic event.

While cumulative trauma cases typically involve situations in which the claimant's symptoms gradually increase over time, the fact that an injury appears to arise suddenly does not necessarily mean that the injury is not the result of cumulative trauma. See Appeal of Commercial Union Ins. Co., 145 N.H. 356, 357–58, 761 A.2d 509 (2000) (symptom of cumulative trauma was sudden onset of sharp pain in shoulder). It is the cause of the claimant's injury, not the resulting symptoms, which determines whether an injury is a discrete injury or the result of cumulative trauma. See Barker v. Home–Crest Corp., 805 S.W.2d 373, 375 (Tenn.1991). Here, there is no evidence that the claimant's carpal tunnel syndrome was caused by a single discrete incident on November 19, 1997. We conclude, therefore, that the claimant sustained a cumulative trauma injury.

We next consider whether the board erred when it ruled that the date of the claimant's injury was in November 1997. CNA argues that the board erred in ruling that the claimant suffered a diminished earning capacity in November and December 1997 because there was no evidence that the claimant was on medical work restriction and no expert testimony was offered to show how the onset of her symptoms resulted in lost earning capacity.

"[T]he appropriate date of the injury in a claim for workers' compensation involving cumulative trauma is the day the claimant's injury causes a diminished earning capacity." Wausau, 143 N.H. at 481, 727 A.2d 988.

Earning capacity is an objective measure of a worker's ability to earn wages. As such, a determination of whether a worker's earning capacity has been diminished must be reached with reference to the worker's value in the marketplace, independent of the subjective measure of the worker's actual earnings.

Appeal of Commercial Union Ins. Co., 145 N.H. at 358, 761 A.2d 509 (quotations omitted). The test used to determine entitlement...