Kruzel, In re
| Decision Date | 29 June 1999 |
| Docket Number | No. 97-290,97-290 |
| Citation | 732 A.2d 452,143 N.H. 681 |
| Parties | Appeal of Paul KRUZEL (New Hampshire Compensation Board). |
| Court | New Hampshire Supreme Court |
Perkins, Phillips & Puckhaber, P.A., of Concord (Robert J. Puckhaber, on the brief and orally), for the petitioner.
Sulloway & Hollis, P.L.L.C., of Concord (James E. Owers and David L. Harrigan, on the brief, and Mr. Owers orally), for the respondent.
The petitioner, Paul Kruzel, appeals a decision of the New Hampshire Compensation Appeals Board (board) denying him workers' compensation total disability benefits. We reverse and remand.
The petitioner, a dentist, started a private practice in general dentistry in Manchester. While developing his dental practice, the petitioner was also building a home in Canterbury. In June 1987, while working on his house, the petitioner severed his thumb from his left hand. The thumb was surgically reattached. Although the procedure was successful, the petitioner lost the ability to bend his left thumb.
Following a recovery period of approximately six to eight weeks, the petitioner returned to his dental practice. Being right hand dominant, he was able to adapt his dental techniques around his left thumb, using it as a static post against which to rest dental instruments.
In September 1989, he purchased a practice in Concord which specialized in crown and bridge work. Crown and bridge work is more exacting work than general dentistry, with long, tedious, and repetitive procedures. The practice flourished, doubling its gross income in the first year. Late in 1992, however, the petitioner began to experience symptoms consistent with carpal tunnel syndrome. Dr. Ekstrom, the surgeon who had reattached the petitioner's thumb, concluded that he was suffering from bilateral carpal tunnel syndrome. On December 18, 1992, Dr. Ekstrom performed carpal tunnel release surgery on the petitioner's left hand.
The petitioner returned to his practice within two weeks. He experienced immediate relief in his left hand following surgery. His right hand, however, continued to worsen. By the end of 1993, the pain had returned to the petitioner's left hand. Despite altering his work schedule in 1994 to allow for breaks, the pain in both hands persisted. In August 1995, he ceased practicing dentistry.
The petitioner applied for workers' compensation benefits in October 1995. His insurer, respondent CNA Insurance, denied the claim. A department of labor hearing officer found that the petitioner was entitled to temporary total disability benefits. The respondent appealed to the board. Following a hearing, the board concluded that
the claimant was injured in the course of his employment as a dentist, [and] that the injury arose out of and was suffered in the course of his employment. This injury is compensable to some extent pursuant to the provisions of N.H. RSA 281-A. It is a fact that the claimant is totally disabled from the high volume, high intensity restorative dental practice to which he aspired and ultimately achieved through his extraordinary personal commitment and effort. However, it is not a fact that the claimant is totally disabled from gainful employment. Indeed a preponderance of the evidence does not establish that the claimant is disabled from practicing dentistry. There is no adequate evidence upon which the [board] can make a determination as to the extent of the claimant's disability within the meaning of RSA 281-[A:48].
The respondent filed a motion for rehearing, see RSA 541:3 (1997), arguing that because the board determined that: (1) the petitioner had failed to establish that he was totally disabled from practicing dentistry; and (2) there was no adequate evidence to determine the extent of the petitioner's disability, he was not entitled to workers' compensation benefits. The petitioner also filed a motion for rehearing, requesting the board to reconsider its decision that he is not totally disabled from the practice of dentistry. In its subsequent order, the board found that
the claimant is not totally disabled from gainful employment within the meaning of RSA 281-A:28 and RSA 281-A:2[,] X-a [and, that this finding] is supported by evidence in the record as a whole and is not impeached by the fact that the physical harm suffered by the claimant prevents him from practicing high volume, high intensity restorative dentistry. The fact is that the claimant did not adduce evidence that he was totally disabled from gainful employment. Furthermore, it is the judgment of the [board] that in the light of the totality of the evidence, the evidence marshaled by claimant's counsel in his [motion for rehearing], does not establish by a preponderance of the evidence that the claimant is totally disabled from functioning as a dentist.
The petitioner did not file a motion for rehearing following this second order.
We first address the procedural posture of this appeal. The respondent argues that it should be dismissed because the petitioner failed to move for rehearing of the board's second order. See RSA 541:4 (1997); Appeal of White Mts. Educ. Ass'n, 125 N.H. 771, 774-75, 486 A.2d 283, 286 (1984). "When a decision on any issue is reversed on rehearing, the newly losing party must apply for a further rehearing and satisfy the requirements of RSA 541:4 before appealing to this court." Appeal of White Mts. Educ. Ass'n, 125 N.H. at 775, 486 A.2d at 286.
The board's initial decision found that the petitioner was not totally disabled from practicing dentistry. The petitioner moved for rehearing, arguing that the uncontroverted medical evidence proved that he was totally disabled from the practice of dentistry. The board's subsequent order affirmed its finding that the petitioner was not totally disabled from practicing dentistry. Thus, the board's decision on this issue was not reversed; nor was the petitioner a newly losing party. Furthermore, by filing a motion for rehearing of...
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