2007-197, APPEAL OF ANHEUSER-BUSCH CO., INC.

Getman, Stacey, Schulthess & Steere, P.A.,

(New Hampshire Compensation Appeals Board) APPEAL OF ANHEUSER-BUSCH CO., INC.

No. 2007-197

heavy lifting and cleaning inside empty brew tanks. Compensation Appeals Board brewing department. His position requires significant physical labor, including The respondent has worked for Anheuser full time since August 1978 in its We recite the facts as found by the board or as presented in the record.

January 2006. We affirm in part and reverse in part. to the respondent, Douglas Bennett, following his knee replacement surgery in Compensation Appeals Board (board) requiring them to pay disability benefits and ACE USA as its insurer, appeal a decision of the New Hampshire HICKS, J. The petitioners, Anheuser-Busch Company, Inc. (Anheuser)

Gawryl & MacAllister

orally), for the respondent.

petitioners. Getman and Tracy L. McGraw on the brief, and Mr. Getman orally), for the

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as of labor on June 14, 2006, the respondent testified that increasing pain, in p. 2 respondent’s claim for disability benefits. At a hearing before the department January 25, 2006. The petitioners paid for this surgery, but denied the The respondent had “bilateral total knee replacement[ ]” surgery on

traumatic osteoarthritis.” responsibilities, complicating advancing knee symptoms secondary to post surfaces. Cumulative stress advancing arthritis. Causally related to his work respondent is] [t]roubled with repetitive stress to the traumatized joint “[t]otal joint replacement.” In November 2005, Dr. Mitchell noted: “[The associated with persistent and increased giving way” and again recommended that the respondent had “progressive and advancing degenerative osteoarthritis At a regularly scheduled visit on September 26, 2005, Dr. Mitchell found

“persistent degenerative osteoarthritic pain.” physical and clinical findings “unchanged,” although he suffered from Department. From 2000 through 2003, Dr. Mitchell found the respondent’s years for reevaluation at the behest of Anheuser’s Occupational Health The respondent continued to see Dr. Mitchell regularly over the next five

permanent impairment award was paid by the petitioners. respondent was given a 32% permanent impairment rating in 2000 and a “medical end” and that his physical restrictions at work were permanent. The In 1999, Dr. Mitchell found the respondent’s knee conditions to be at a instability” had failed, and that he “is a candidate for total joint arthroplasty.” “degenerative changes of his joint,” that “attempts to stabilize his complex In October 1998, Dr. Mitchell noted that the respondent had

giving way with associated instability and joint pain.” satisfactory,” “[r]ange of motion is satisfactory,” and “recurrent episodes of surgery, Dr. Mitchell noted the following: “mobility and function is Mitchell performed ligament reconstruction surgery. At visits following the and he sprained his ankle while coming down a ladder. For this injury, Dr. suffered a compensable work-related injury to his right knee, when it gave out time showed that he had “advancing degenerative arthritis.” In 1998, he injury” to his left knee while climbing a ladder at work. An X-ray taken at that although suffering from knee pain. In 1996, he suffered a “hyperextension The respondent opted against knee replacement and continued to work,

knees would need to be replaced. respondent was diagnosed with “degenerative osteoarthritis” and told that both November 1990, and underwent ligament reconstruction. In 1991, the respondent suffered a compensable, work-related injury to his left knee in his knees and has been treated for such by Dr. William Mitchell. The Since as early as 1988, the respondent has suffered from problems with last disability payment was made more than four years earlier. See p. 3 reinstatement of disability benefits for the recurrence of an old injury where the We have interpreted this language as a statute of limitations barring the

pursuant to RSA 281-A:40 . . . .

last payment of compensation under such award or

Appeal of Lorette

the fourth anniversary of the date of such denial or the

board’s decision reasonably could have been made.

filing a petition with the commissioner not later than

competent evidence in the record, upon which the will not be disturbed if they are supported by is unjust or unreasonable. The board’s findings of fact

compensation made pursuant to RSA 281-A:40 by

preponderance of the evidence before us that the order

commissioner to review a denial or an award of

errors of law, or if we are satisfied by a clear

occurring after July 1, 1965, may petition the

v. Noyes Tire Co., 125 N.H. 765, 766-67 (1984) (decided under prior law). This

Any party at interest with regard to an injury Coulombe

then the date of his injury would “relate back” to his previous injuries. Appeal unstable and debilitative, ultimately resulting in the knee replacement surgery, threshold issue in this case. If his knee injuries in 1990 and 1998 remained The nature of the respondent’s knee conditions in January 2006 is the four years of no compensation benefits. for reopening of workers’ compensation cases for a change in condition after September 26, 2005. The board also ruled that RSA 281-A:48, I (1999) allows suffered from a cumulative trauma injury, with a new date of injury of board, which ruled that the respondent was entitled to disability benefits as he provides, in pertinent part: benefits starting from January 25, 2006. The petitioners appealed to the that RSA 281-A:48, I, bars the payment of disability benefits. RSA 281-A:48, I, of CNA Ins. Co. The hearing officer found that the respondent was entitled to disability, 148 N.H. 317, 320 (2002). In such case, the petitioners assert

, 154 N.H. 271, 272 (2006) (quotation omitted).

replacement surgery since “the early ‘90s.” work that precipitated his surgery and that he had been told he needed knee respondent agreed that he did not suffer from a specific traumatic event at home, ultimately prompted his decision to go forward with the surgery. The conjunction with an unexpected giving-way episode of both knees while at injury or cumulative trauma.” Appeal of Bellisle p. 4 compensation benefits can recover for a new disability arising from a new acute “An employee who recovers from previous injuries resulting in workers’

on this issue upon the medical evidence . . . .” Id unreasonable. the province of medical experts, and the board [is] required to base its findings upon our review of the evidence, this finding is neither unjust nor “The medical causation of a knee injury . . . is a matter properly within board found that the respondent suffered from cumulative trauma. Based his previous injuries or an aggravation caused by cumulative trauma. The disability in January 2006 was due to a steady progression and worsening of

The issue before the board, therefore, was whether the respondent’s

degenerative condition and did not suffer a discrete traumatic injury.” Appeal finding of a new disability from cumulative trauma. compensation law. This may be so even if the claimant had a pre-existing to the record to determine whether the medical evidence supports the board’s may constitute a compensable injury under New Hampshire’s workers’. at 629. We turn, therefore, “A disability which is causally related to cumulative work-related stress

N.H. 623, 627 (1994). intolerable that it prevents the claimant from working.” Appeal of Briggs, 138 resulting in “an acute manifestation occurring on a particular day which is so injury often “may develop gradually, and with the presence of some pain,” of Gelinas be the date of first medical treatment for the aggravation.” RSA 281-A:16., 142 N.H. 295, 297 (1997) (citation omitted). A cumulative trauma injury or condition aggravated by cumulative trauma, the date of injury shall trauma, the date of injury shall be the date of first medical treatment. For an statute provides, in pertinent part: “For an injury caused by cumulative then a new date of injury applies pursuant to RSA 281-A:16 (Supp. 2006). The If, however, the surgery was necessitated by a cumulative trauma injury, second injury is claimed to be the result of cumulative trauma. 128 N.H. 478, 481 (1986). This determination becomes more difficult when the incident affects the worker’s underlying condition.” Town of Hudson v. Wynott, body, [however,] it often is difficult to determine the extent to which the later “When an injured worker sustains a second injury to the same part of the

previous injuries. benefits in this case if the respondent’s 2006 surgery relates back to his this case. Accordingly, we accept that the statute will bar recovery of disability interpretation of RSA 281-A:48, I, has not been challenged by either party in respondent is] [t]roubled with repetitive stress to the traumatized joint p. 5 pain disorder.” Dr. Mitchell also noted the following in November 2005: “[The in the “inevitable progression of his disease” and a diagnosis of “[p]rogressive the “repetitive and cumulative stress associated with his employment” resulted osteoarthritis “advanced to the point where work was no longer tolerable,” that opinion to be “persuasive.” Dr. Mitchell’s opinion states that the respondent’s The board relied upon this letter in its decision, finding Dr. Mitchell’s

related to his employment. January. This traumatic pain disorder is causally intervention with total joint arthroplasty this past

distinct new presentation of symptoms required the

been separate from the original trauma, but rather the

continuing and ongoing. Pain and stress have never

stresses associated with his occupation have been

having injured his knees in 1990 and 1998. The

cumulative stress associated with his employment,

certainty this was related to the repetitive and

of his disease. It is with a high degree of medical

from his injuries resulted in the inevitable progression

replacements on 1/25/06. Progressive pain disorder

arthroplasty where he underwent bilateral total knee

advanced state of arthritic change required total joint

the point where work was no longer tolerable. His

Post traumatic degenerative osteoarthritis advanced to

the respondent’s condition: In a letter dated May 31, 2006, Dr. Mitchell wrote the following regarding

until the pain became intolerable in 2005. respondent testified, however, that he continued to work beyond his limitations by 1999, Dr. Mitchell noted that these restrictions were permanent. The The respondent had been on restrictions at work since at least 1996 and

osteoarthritis.” noted in September 2005 that the respondent had “advancing degenerative “advancing degenerative arthritis.” (Emphasis added). Dr. Mitchell again In 1996, however, Dr. Mitchell noted that the respondent’s left knee showed process will occur, since the degenerative problem has reached an end stage.” has stabilized . . . . It is not likely that further acceleration of the degenerative that the respondent “has a degenerative knee disorder. Clearly, this problem an injury to the respondent’s left knee in November 1990, Dr. Mitchell noted treating physician, Dr. Mitchell. In a letter dated November 4, 1991, following The medical record includes numerous notations by the respondent’s p. 6 The petitioners further argue that Hudson

condition. Bellisle 6 physical exertions at work “aggravated, exacerbated, or accelerated” a previous . evidence in favor” of a conflicting medical opinion. Appeal of Commercial with his employment.” A finding of cumulative trauma is appropriate where the board’s decision does not reference this report, the board is “free to reject . . was in fact “advancing” due to the “repetitive and cumulative stress associated disorder had reached an “end stage,” in subsequent notations, he found that it employment. ultimate treatment in the form of bilateral total knee replacements.” Although Although Dr. Mitchell noted in 1991 that the respondent’s degenerative knee respondent’s osteoarthritic condition was “advancing” due to his continued indicate any new significant injury that had any bearing on the [respondent’s] restrictions, and Dr. Mitchell’s uncontroverted medical opinion found that the was further damage being done to Claimant’s knees by the ongoing work.” June 8, 2006, in which he states: “there is nothing in the medical records to found that “[t]he treating physician’s medical reports . . . show[ed] that there The petitioners rely upon a medical report submitted by Dr. Siliski on demanding employment with Anheuser, working beyond his medically-set than a natural progression or worsening of his original injuries. The board undisputed facts show that the respondent continued his physically result of continuing work-related stress and aggravation on his knees rather differ in an important respect from those in Hudson and Rumford. The conditions, which ultimately resulted in knee replacement surgery, were the by case basis. See Hudson, 128 N.H. at 483. The facts of the present case injury or condition is a question of fact, which must be determined on a case condition relates back to his previous injuries. We disagree. The nature of an Travelers Ins. Co., 125 N.H. 370 (1984), require a finding that the respondent’s

over that of Dr. Siliski. upon the opinion of the respondent’s treating physician of over eighteen years Id. at 433. Accordingly, we cannot say that the board erred in relying primarily evidence in the record even if other evidence would lead to a contrary result.” supports the board’s decision, we will not reverse a finding supported by expert saw the respondent once in November 1998. “[A]s long as competent evidence The record supports the conclusion that the respondent’s knee respondent’s treating physician, and the report indicates that Dr. Siliski only Union Ins. Co., 140 N.H. 429, 434 (1995). Moreover, Dr. Siliski is not the

upon the record before us. cannot say, therefore, that the board’s order is unjust or unreasonable based

responsibilities . . . .” surfaces. Cumulative stress advancing arthritis. Causally related to his work seeking review of a denial or award of compensation that is filed pursuant to p. 7 RSA 281-A:48, I. For the sake of clarity, however, we note that a petition erred in finding that a “change in conditions” occurred as that term is used in suffered a new injury. Accordingly, we need not consider whether the board respondent’s claim for disability benefits; the respondent is considered to have Given the new date of injury, RSA 281-A:48, I, does not bar the

date of injury. Accordingly, we reverse the board’s decision that September 26, 2005, was the occurred on January 25, 2006, when he had knee replacement surgery. respondent’s first “medical treatment” for the aggravation of his condition date of injury as “the date of first medical treatment for the aggravation.” The injury or condition aggravated by cumulative trauma, RSA 281-A:16 sets the sustained a compensable work-related injury and began treatment. For an first medical treatment was no later than April 5, 1998, when the claimant September 26, 2005. The petitioners dispute this date, arguing that the date of “the date of injury.” RSA 281-A:16. The board set the date of injury as cumulative trauma, we must next determine whether the board properly found Having agreed with the board that the respondent suffered from a 7

replacement surgery. The Rumford knee conditions to the point where the pain was intolerable, necessitating knee physician found that years of continued physical exertion at work advanced his fact distinguishes Rumford from the present case, where the respondent’s work leading up to his subsequent injuries. Id. at 375-76. The absence of this degeneration, however, was not linked to repetitive or cumulative stress at to be subject to progressive degeneration” during this time. Id. at 375. The expert testimony had established that the claimant’s back condition “continued injuries within one year of his original injury. Id. at 372-73. We held that was careful at work.”). The claimant in Rumford suffered his subsequent back condition. Rumford, 125 N.H. at 373 (“[The claimant] testified that . . . he claimant worked beyond his medically-set limitations thereby advancing his

stress on his back condition, thereby aggravating or exacerbating it. claimant’s work following his original injury placed repetitive and cumulative claimant’s condition.” Id. at 4 p. 8 85. There was also no evidence that the could have found that the bait pail incident was an independent cause of the “there was no competent medical evidence on which the master reasonably related back to his original work injury. Id. at 485-86. We further held that previous employer was liable for medical benefits because his second injury suffered an injury when lifting a pail. Id. at 480. We held that the claimant’s 479-80. He opened a bait shop and went into employment for himself until he him from returning to work and he ultimately ended his employment. Id. at In Hudson, the claimant suffered a back injury at work, which prevented 8

Affirmed in part and reversed in part

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, J J.,

2 p. 8 81-A:48, I (emphasis added). of such denial or the last payment of compensation under such award.” RSA RSA 281-A:48 must be filed “not later than the fourth anniversary of the date