Town of Hudson v. Wynott

• Decision Date: 18 September 1986
• Docket Number: No. 85-505,85-505
• Citation: 522 A.2d 974,128 N.H. 478
• Parties: TOWN OF HUDSON et al. v. Lawrence WYNOTT, Jr.
• Court: New Hampshire Supreme Court

Page 974

522 A.2d 974

128 N.H. 478

TOWN OF HUDSON et al. v. Lawrence WYNOTT, Jr.

No. 85-505.

Supreme Court of New Hampshire.

Sept. 18, 1986.

Devine, Millimet, Stahl & Branch P.A., Manchester (Eileen Fox, on brief and orally), for plaintiffs.

Kozlowski, Gauthier & Parodi, Nashua (Robert M. Parodi, on brief and orally), for defendant.

BATCHELDER, Justice.

The defendant, Lawrence Wynott, Jr. (the claimant), appeals from an order of the Superior Court (Wyman, J., approving a recommendation of a Master, R. Peter Shapiro, Esq.) rejecting his claim under the Workers' Compensation Law for medical benefits, RSA 281:21, I. The court found that the claimant had failed to prove that a surgical operation that he underwent on July 20, 1983, was required by and therefore was the direct result of a work-related back injury he had sustained seven years earlier. We reverse.

The claimant was employed by one of the plaintiffs, the Town of Hudson (the employer). When on the job, on June 9, 1976, he injured his back while closing the tailgate of a dump truck. He attempted to return to the job, but the pain in his back and legs rendered him unable to work, and his employment ended.

After undergoing a series of myelograms, the claimant underwent surgery on December 5, 1977. Dr. William P. McCann performed a hemilaminectomy of two lower vertabrae and removed a ruptured disk. The claimant contracted a postoperative wound infection, and, in a second operation on January 8, 1978, Dr. McCann drained and treated the wound. The claimant remained under Dr. McCann's care through 1980. In June 1980 the claimant began a course of treatment at the Dartmouth-Hitchcock Medical Center in Hanover, and he also was referred for vocational rehabilitation. The employer's workers' compensation insurance carrier, the plaintiff Fireman's Fund Insurance Company (the insurer), provided disability compensation and medical benefits during this period.

On February 4, 1981, the New Hampshire Department of Labor approved a $29,000 lump sum agreement between the claimant and the insurer. Under the agreement, the insurer was absolved of liability for further disability compensation, but remained responsible for medical benefits. See RSA 281:33 (Supp.1985). The claimant used the money from the settlement to open a bait shop. Between September 1980 and July 1983, he did not seek medical treatment for his back.

In early July 1983, the claimant lifted a styrofoam bait pail containing about a gallon of water and felt a sharp pain that radiated up and down his spine and into his lower extremities. On July 13 he consulted Dr. Peter J. Grillo, a neurosurgeon associated with Dr. McCann. The claimant was hospitalized and underwent a battery of tests. On July 20 Dr. Grillo performed a laminectomy of two lower vertebrae and foraminotomies of two nerve roots, and excised a herniated lumbar disk.

The claimant filed a workers' compensation claim to recover the medical and hospital expenses resulting from the July 1983 surgery. The insurer denied the claim on the ground that these expenses were not causally related to the June 1976 injury. The deputy labor commissioner held a hearing and ruled in favor of the claimant. The employer and the insurer appealed to the superior court pursuant to RSA 281:37, I.

The master, finding that the July 1983 bait pail incident had a "significant effect upon [the claimant's] underlying back condition," concluded that the incident constituted a "separate intervening event" under the standard enunciated in Rumford Press v. Travelers Insurance Co., 125 N.H. 370, 480 A.2d 162 (1984) and Town of Goffstown v. Morgrage, 122 N.H. 591, 448 A.2d 385 (1982). Upon the master's recommendation, the court set aside the decision of the deputy labor commissioner and rendered judgment for the employer and the insurer. The claimant moved for reconsideration and requested a rehearing. The court denied the motion, and this appeal followed.

Before turning to the claimant's arguments, we review the applicable legal principles. RSA 281:21, I, governs this case. That statute provides that "[a]n employer ... or his insurance carrier, shall furnish to an injured employee, or cause to be furnished, reasonable medical, surgical, and hospital services, remedial care, nursing, machines, and mechanical and surgical aids,for such period as the nature of the injury may require " (emphasis added). An employer thus has a continuing obligation to provide or to pay for medical, hospital, and remedial care for as long as is required by an injured employee's condition. See Bilodeau v. Oliver Stores, Inc., 116 N.H. 83, 85, 352 A.2d 741, 743 (1976). It is undisputed that the claimant became an "injured employee" within the meaning of RSA 281:21, I, when he injured his back in June 1976. The sole issue is whether the condition that necessitated the July 1983 surgery resulted from that injury or from some other cause.

The July 1983 bait pail incident complicates matters. When an injured worker sustains a second injury to the same part of the body, it often is difficult to determine the extent to which the later incident affects the worker's underlying condition. We infer from the master's report that there was some causal relationship between the June 1976 injury and the condition of the claimant's back at the time of the July 1983 surgery. The master characterized the second injury as an "aggravation" of an "underlying condition," and not as an event unrelated to the first injury. The master did not find that any other injury contributed to the claimant's back condition. Thus, the master's resolution of this case depended upon a choice between two mutually exclusive propositions. Either the need for the July 1983 operation was the direct and natural result of the June 1976 injury, or the bait pail incident constituted an independent cause of the condition that necessitated that operation.

Professor Larson provides the following analysis of this problem:

"[O]nce the work-connected character of any injury ... has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause. This may sound self-evident, but in close cases it is sometimes easy to overlook this essentially simple principle. In a Utah case, claimant had suffered a compensable accident in 1966, injuring his back. Several years later, this condition was triggered by a sneeze into a disc herniation, for which claimant required surgery. The medical testimony was that because of the back condition, it was probable that had claimant not had the sneezing episode, some other major or minor event would have eventually necessitated surgery. The finding that the sneezing episode was the independent cause of claimant's disability, and the resultant denial of compensation, were held to be error, and benefits were awarded on appeal. This result is clearly correct. The presence of the sneezing incident should not obscure the true nature of the case, which is nothing more than that of a further medical complication flowing from a compensable injury. If the herniation had occurred while claimant was asleep in bed, is [sic] characterization as a mere sequel to the compensable injury would have seemed obvious. The case should be no different if the triggering episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury, associated with an exertion that in itself would not be unreasonable in the circumstances."

1 A. Larson, The Law of Workmen's Compensation § 13.11(a) (1985) (footnotes omitted).

In order to be regarded as an "independent nonindustrial cause," the second incident need not be a sufficient cause of the injured worker's condition. It must be, however, both a necessary and a material cause of that condition. One helpful concept in this respect is that of stabilization. See Rumford Press v. Travelers Insurance Co., 125 N.H. at 374-75, 480 A.2d at 165. If the worker's underlying condition has stabilized at the time of the second incident, that event is more likely an independent cause of the resulting disability. See, e.g., Gilbane Building Co. v. Zorabedian, 113 R.I. 129, 318 A.2d 466 (1974) (at time of second incident, claimant had no disability and had recovered from effects of earlier lower back strain). If the worker still suffers from an ongoing debilitative condition, however, the second incident must ordinarily be a distinct and extraordinary trauma-inducing event in order to qualify as an independent cause. See Rumford Press v. Travelers Insurance Co., supra at 375, 480 A.2d at 165 (construing the "most recent injurious incident" rule, RSA 231:38-a, III (Supp.1985)); see also Town of Goffstown v. Morgrage, 122 N.H. 591, 448 A.2d 385 (1982) (subsequent injury, occurring while claimant was putting on his pants, not an independent cause of disabling back condition).

The claimant points out that Rumford Press and Morgrage involve the "successive carrier" problem, see 4 A. Larson, supra § 95.11 (1986), an issue not presented here, as well as a different governing statute, RSA 281:38-a, III (Supp.1985). We think, however, that although the second injury in this case would not have been independently compensable, the principles employed in the analysis of the causation issues in Rumford Press and Morgrage are equally applicable here. See 4 A. Larson, supra § 95.23. The presence or absence of a second insurance carrier at the time of a subsequent injury does not affect the extent of the original carrier's liability. But cf. In re Compensation of Peterson, 57 Or.App. 476, 645 P.2d 567, 568 n. 1 (1982), aff'd on other grounds, 294 Or. 537, 660 P.2d 1058 (1983).

With these principles in mind, we turn to the contentions before us. The claimant argues that the evidence did...