2008-173, APPEAL OF DEAN FOODS

Hospital. One week later, he began treatment with Dr. Ashraf Guirgues. Dr. his back to support the load. The claimant was initially treated at Elliot pulling a load of dairy products off a truck. He did not fall, but instead twisted

Farms. He suffered a lower back injury after slipping on a piece of plastic while

total disability payments. We affirm.

(claimant) was injured while working as a milk delivery driver for Garelick

Appeals Board (CAB) to continue the respondent, John Eustace’s, temporary

The record supports the following facts. On November 7, 2003, Eustace

Garelick Farms, appeal the decision of the New Hampshire Compensation Fidelity & Guaranty Insurance Company and Dean Northeast, LLC d/b/a DUGGAN, J. The petitioners, Gallagher Bassett Services, Inc., U.S.

on the brief and orally), for the respondent. Wyskiel, Boc, Tillinghast & Bolduc, P.A., of Dover (D. Lance Tillinghast

to press. Errors may be reported by E-mail at the following address: Elizabeth M. Murphy on the brief, and Ms. Murphy orally), for the petitioners. Devine, Millimet & Branch, P.A., of Manchester (James M. O'Sullivan and

(New Hampshire Compensation Appeals Board) APPEAL OF DEAN FOODS page is: http://www.courts.state.nh.us/supreme.

No. 2008-173 editorial errors in order that corrections may be made before the opinion goes Compensation Appeals Board Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as and spondylolisthesis; p. 2 that he had a non-work-related pre-existing lumbar degenerative disc disease

and diagnosed the claimant with a lumbar strain injury. Dr. Glassman noted

2007, Dr. Glassman performed the second independent medical examination AMA Guidelines to the Evaluation of Permanent Impairment. In January the claimant as having a five percent whole person impairment based upon the resolved.

Sanchez testified in person and Dr. Tilton by deposition transcript. 2 2007. The claimant appealed to the CAB. At that hearing, Drs. Glassman and examination, and terminated the claimant’s disability benefits as of April 10,

disease. Dr. Glassman disagreed with Dr. Tilton’s impairment rating and rated pre-existing condition and not the lumbar strain, which he believed had since radiculopathy. He stated that the claimant’s current treatments were for the that the clinical findings and diagnostic testing did not correlate with left leg

in condition, based upon Dr. Stuart Glassman’s independent medical

strain injury with exacerbation of pre-existing lumbar degenerative disc

unremarkable and found no evidence of radiculopathy. Dr. Glassman testified decision to the CAB for a vertebra below. He read the claimant’s electromyographic (EMG) study as temporary total disability benefits should continue. The carrier appealed the i.e., slight slippage of the vertebra above in relation to disability pursuant to RSA 281-A:48 (1999). The hearing officer ruled that the

claimant as having a whole person impairment of thirteen percent. compensation and the extent of disability. The hearing officer found a change

that ruling. 2007. In February 2006, Dr. Glassman diagnosed the claimant with lumbar examinations of the claimant, one in February 2006, and a second in January Dr. Glassman testified based upon his two independent medical

department of labor (DOL) to review the compensation and the extent of

Margaret Tilton for a permanent impairment rating. Dr. Tilton assessed the On September 7, 2006, the carrier requested a new hearing to review the

remained disabled and continued disability benefits. There was no appeal from

initially accepted the claim and paid temporary total disability benefits. Inc., as adjusters for Fidelity and Guaranty Insurance Company (carrier), The carrier requested a hearing, held on August 16, 2005, at the

and medication. One year after the incident, the claimant was referred to Dr. 2004 for pain management. Dr. Sanchez treated the claimant with injections persisted and Dr. Guirgues referred him to Dr. Manuel Sanchez in January The claimant continued to be treated by Dr. Guirgues, but his pain

The employer’s workers’ compensation insurance carrier, Gallagher Bassett, Guirgues restricted the claimant’s driving and lifting, taking him out of work. year prior.”

p. 3 testified that an EMG may not detect radiculopathy.

“incongruous as it does not comport with the diagnosis and permanency of a

not unusual for low back pain to then develop into radiculopathy. Dr. Sanchez therapy and medication, including narcotics. Dr. Sanchez testified that it is permanent disability, to “result in a finding that at least some of the symptoms could not be reversed with steroids. The claimant was treated with physical

the claimant’s symptoms as causally linked to the November incident.

diagnosis that the claimant’s current treatment is not work-related to be suffering a permanent disability. The CAB found Dr. Glassman’s 2007 CAB stated that both Drs. Glassman and Tilton assessed the claimant as 3

extent” over time.

treatments are work-related, together with Dr. Glassman’s 2006 diagnosis of claimant’s pain continued shortly thereafter, signifying that the inflammation

assessment of the claimant’s pre-existing condition; however, she diagnosed have nerve symptoms on either side. Dr. Tilton agreed with Dr. Glassman’s radiculopathy. She testified that based upon the claimant’s condition, he could

record was any evidence whatsoever on the claimant’s earning capacity.” The

permanent impairment rating, she does not expect it to change to “any great

The CAB relied upon Dr. Sanchez’s testimony that the claimant’s current Dr. Sanchez initially treated the claimant with steroid injections; however, the ligaments where the lumbar strain is, causing chronic inflammation and pain. Specifically, Dr. Sanchez testified that the incident resulted in tearing of the drop;

She saw an abnormality, but could not interpret the EMG as confirming the

related to the work injury.” The CAB noted that “what was not entered into the presented went to the issue of the claimant’s medical condition and if it were including radiculopathy. Dr. Tilton testified that when she assesses a In its decision, the CAB found that “the vast majority of the evidence with a thirteen percent impairment based upon the lumbar spine category spondylolisthesis. Using the AMA Guidelines, Dr. Tilton evaluated the claimant

the claimant’s condition was aggravated by the November 7, 2003 fall. significant left-sided symptoms. Dr. Tilton observed the claimant with a foot

Dr. Tilton disagreed with Dr. Glassman’s reading of the claimant’s EMG.

diagnosed him with radiculopathy, which caused the foot drop, and i.e., the inability to control the foot in the heel to toe motion. She

conditions—degenerative disc disease and spondylolisthesis. He testified that Dr. Tilton testified that when she began treating the claimant, he had the right side. Dr. Sanchez testified that the claimant has two long-standing sensory changes to his lower extremities, with more significant numbness on

and leg pain in January 2004. Dr. Sanchez stated that the claimant had Dr. Sanchez testified that the claimant was referred to him for low back implied therefrom.”

p. 4 which symptoms. 4

governed by the express statutory language and that which can be fairly

upon the ground of

claimant’s symptoms are from the work-related injury but failing to specify

. . . .

or coercion. unjust or unreasonable. statute, and the nature and extent of compensation to the injured employee is nature or extent of the injury or disability, fraud, undue influence, followed. a change in conditions, mistake as to the denial or an award of compensation . . . by filing a petition . . . capacity. We disagree. after July 1, 1965, may petition the commissioner to review a I. Any party at interest with regard to an injury occurring

injury was a cumulative trauma injury; and (4) finding that some of the RSA 281-A:48 provides, in pertinent part: opinion; (3) relying upon the treating physician, who opined that the claimant’s (2) relying upon the first opinion of Dr. Glassman instead of his more recent ellipsis omitted).

satisfied by a clear preponderance of the evidence before us that the decision is “We are the final arbiter of the meaning of the workers’ compensation related.” The carrier moved for a rehearing, which was denied. This appeal

argued that the claimant’s injury ceased, it was not required to prove earning requiring that it prove earning capacity. The carrier maintains that because it We initially address the carrier’s argument that the CAB erred in

Woodmansee, 150 N.H. at 66. to show earning capacity when it argued the injury was no longer work-related; (2007). As the appealing party, the carrier bears the burden of proof. CAB’s factual findings are prima facie lawful and reasonable. See RSA 541:13

We will overturn the CAB’s decision only for errors of law, or if we are capacity which is required since at least some of his current condition is workfinds that the carrier has failed to prove that the claimant has an earning claimant has an earning capacity, and thus stated: “The panel unanimously

On appeal, the carrier argues the CAB erred in: (1) requiring the carrier

The CAB found that the carrier failed to introduce any evidence that the and conditions now suffered by the claimant are related to the work injury.” p. 5 5

carrier was “required to establish that there was a change in her physical an earning capacity. and her work-related injury. Id. The claimant appealed, arguing that the that there was no causal relationship between the claimant’s current disability may be reduced. Id. at 226. The CAB terminated the claimant’s disability benefits after finding work-related lumbar strain injury and pre-existing degenerative disc disease. related injury has ceased. Hiscoe, 147 N.H. at 230. There, the claimant had a however, in Hiscoe, we articulated an exception where the claimant’s work- Our analysis of RSA 281-A:48 has focused upon earning capacity;

capacity.” Id. at 67. claimant’s physical condition, but may be a change in the claimant’s earning necessary to justify reducing or terminating benefits need not be a change in a a ‘change in conditions,’ and, if so, whether that change affected his Id. at 64-66. We held that “the ‘change in condition’ termination of compensation benefits: “whether the claimant had experienced condition remained unchanged, but there was evidence that the claimant had

Woodmansee, 1 p. 5 50 N.H. at 67. There, the claimant’s medical

change in earning capacity, but no change in his medical condition, benefits now be capable of performing some type of In Woodmansee, we went further and held that where a claimant has a

a result of a work-connected injury.”). Act is designed to compensate workers who suffer a loss of earning capacity as Appeal of Normand, 137 N.H. 617, 621 (1993) (“The Workers’ Compensation McKay v. N.H. Compensation Appeals Bd., 143 N.H. 722, 733 (1999); see also capacity so as to justify a termination of his compensation benefits.” Id.; see

206. Thus, we articulated the following two-step analysis for reduction or that he remains unable to earn as much as he did prior to his injury.” Id. at

On appeal, we stated that, “while relevant, the fact that the claimant may

work capacity and terminated benefits. Id. at 20 p. 5 5-06. work. Jackson, 142 N.H. at 205. The CAB found that the claimant had some conditions, submitting evidence that the claimant had participated in some petitioned for a termination of the claimant’s benefits due to a change in “a change in conditions” within RSA 281-A:48. In Jackson, the carrier In Appeal of Jackson, 142 N.H. 204 (1997), we explained the meaning of

(Emphases added.)

employment. perform his or her regular work or is able to engage in gainful medical evidence that the injured employee is physically able to compensation, the petitioner shall submit along with the petition III. If a petitioner files for reducing or for ending partially work-related. Thus, unlike p. 6 as well as Dr. Sanchez’s testimony, to find that the claimant’s injury is still CAB relied upon the permanency assessments of Dr. Tilton and Dr. Glassman, 6

that [the claimant’s] work-related disability has ceased.” strain) had resolved,” here, the carrier did not meet its “burden of establishing

does not comport with the diagnosis and permanency of a year prior.” The

related injury has ceased. Because the carrier did not argue in the alternative 230. The carrier’s only argument before the CAB was that the claimant’s work-

include whether the claimant has a change in earning capacity. medical evidence that the petitioner’s original work-related condition (lumbar argues a different change in conditions has occurred, the CAB inquiry must Hiscoe, where there was “substantial

capacity.

change in conditions,” and the inquiry ends there. Glassman’s 2007 assessment, and instead found it to be “incongruous as it work-related injury had ceased. The CAB, however, was not persuaded by Dr. independent medical examination in support of its position that the claimant’s injury,” Here, the carrier introduced Dr. Glassman’s testimony and 2007

suitable alternative work is available.” Woodmansee, 150 N.H. at 67; Jackson, 142 N.H. at 206. a pre-existing condition it is not necessary that the employer prove that scenarios: (1) where the claimant’s “compensable work-related injury has See

petitioner does not argue that the work-related injury has ceased, but instead injury has ceased. See Woodmansee, 150 N.H. at 67; Jackson, 142 N.H. at 206. If the 230. If not, the CAB must address whether the claimant has an earning unrelated to the on the job injury.” See Hiscoe, 147 N.H. at exclusive. If the CAB finds that the work-related injury has ceased, there is “a has occurred, warranting termination of benefits.” Woodmansee, 150 N.H. at 68. These two scenarios are not mutually normal employment conditions, as much as he or she earned at the time of performing some type of work and “is now able to earn, in suitable work under

Hiscoe, 147 N.H. at 231; or (2) where the claimant is capable of

has ceased and any physical problems still suffered from are causally related to As discussed, RSA 281-A:48 authorizes terminating compensation in two

need not show earning capacity if it can prove that the claimant’s work-related

even though the claimant is disabled if such disability is due to causes

petitioner’s compensable work-related injury has ceased, a change in condition omitted). We explained: “If the medical evidence establishes that the

introduced sufficient medical evidence that a claimant’s work-related injury We distinguished Jackson and held “that where an employer has

employment.” Id. at 229. condition, enabling her to perform her regular work or engage in gainful work-related injury.

p. 7 weight.”

the CAB’s decision that at least some of the claimant’s symptoms are from the

is therefore unjust and unreasonable. We disagree. great familiarity with his condition, their reports must be accorded substantial

support its decision. Thus, there is sufficient evidence in the record to support further relied upon the permanency ratings of Drs. Glassman and Tilton to as a result of the pain, the claimant’s work capacity is limited. The CAB

contrary to the weight of the evidence regarding the claimant’s condition, and workers’ compensation case: because a claimant’s treating physicians have with a cumulative injury. The carrier maintains that the CAB decision was meets with him regularly. “Treating physicians are especially important in a upon Dr. Sanchez’s testimony because he incorrectly diagnosed the claimant work-related. Dr. Sanchez is the claimant’s current treating physician and

unusual for low back pain to develop into radiculopathy. He also testified that,

Glassman’s 2006 assessment instead of his current assessment, and in relying testimony to support a finding that at least part of the claimant’s symptoms are

claimant suffers pain that is very difficult to control. He testified that it is not

work-related injury. The carrier argues that the CAB erred in relying upon Dr. the claimant’s injury is work-related. The CAB relied upon Dr. Sanchez’s claimant’s symptoms are based upon a pre-existing condition and not the when the claimant initially complained of right-sided pain, shows that the unreasonable.

omitted). Dr. Sanchez testified that because of the November injury, the

Appeal of Morin, 140 N.H. 515, 519 (1995) (quotation and brackets could have been made.”

competent evidence in the record, upon which the board’s decision reasonably

in the record.” rather to determine whether the findings are supported by competent evidence have found differently than did the board, or to reweigh the evidence, but We first address whether the medical evidence supports a finding that

argues that the medical evidence, such as development of left-leg radiculopathy can demonstrate, by a clear preponderance of the evidence, that it is unjust or Sutton, 141 N.H. at 351 (quotation omitted). factfinders are free to disregard or accept, in whole or in part, that testimony.” (2008) (quotation omitted). “When faced with conflicting expert testimony, . . .

“The board’s findings of fact will not be disturbed if they are supported by

Appeal of Sutton, 141 N.H. 348, 350 (1996) (quotation omitted).

reviewing the CAB’s findings, “our task is not to determine whether we would

Appeal of Fay, 150 N.H. 321, 324 (2003). Moreover, in

the claimant’s symptoms are a result of the work-related injury. The carrier As set forth above, we will affirm the CAB’s decision unless the carrier

The carrier’s fallback position, however, is that the CAB erred in finding

meet this burden. that the claimant had an earning capacity, it did not introduce any evidence to increased thickness of his joints and his bones started to grow.

p. 8 claimant suffered a decompensation of adjusting mechanisms in his back,

chronic inflammation. Dr. Sanchez further clarified that with the incident, the

any back pain or require medication prior to the November 7, 2003 injury.

record.”

response. November injury and the claimant’s current symptoms. We cannot conclude

November incident aggravated the condition, tearing the ligaments resulting in claimant’s pre-existing degenerative condition involves an instability and the a cumulative injury on November 7, 2003. Dr. Sanchez explained that the weeks, he could return to work without issue. The claimant did not experience claimant, however, further testified that after receiving treatment for three claimant testified that he experienced a prior work-related injury in 1998. The 8 Glassman’s 2007 assessment is “supported by competent evidence in the

cumulative trauma-type injury.” At the CAB hearing, Dr. Sanchez clarified his including answering in the affirmative that the claimant’s condition is “a considering the evidence it did in finding a causal relationship between the questionnaire to Dr. Sanchez. Dr. Sanchez completed the questionnaire,

although the claimant’s pre-existing condition is cumulative, he did not suffer

explanation that he did not suffer a cumulative injury in November 2003. The impairment assessment. Thus, the CAB’s decision not to consider Dr. suffered a permanent disability, as well as Dr. Tilton’s thirteen percent CAB also considered its own finding in the prior decision that the claimant had

After a careful review of the record, we find that the CAB did not err in claimant’s injury as cumulative. On March 5, 2007, the claimant submitted a

conditions—degenerative disc disease and spondylolisthesis. He testified that

Moreover, the claimant testified consistently with Dr. Sanchez’s

one year earlier, that the claimant had a five percent impairment rating. The

considered Dr. Sanchez’s evaluation because Dr. Sanchez described the injury had resolved.

Dr. Sanchez testified that the claimant has two long-standing

“incongruous.” The CAB based this decision upon Dr. Glassman’s assessment,

Third, we address the carrier’s argument that the CAB should not have were a result of pre-existing injury, and that the lumbar strain work-related percent. One year later, Dr. Glassman found that the claimant’s symptoms Sutton, 141 N.H. at 350. claimant twice. Initially, he evaluated the claimant’s impairment rating as five

The CAB found Dr. Glassman’s most recent assessment to be

assessment instead of his current evaluation. Dr. Glassman examined the Second, we address the CAB’s decision to consider Dr. Glassman’s 2006 the work-related injury was not unjust or unreasonable.

p. 9 these findings, the CAB’s decision not to specify which symptoms were from

spine and left lower extremity based upon the November injury. In light of narrowing; and (5) the claimant sustained a permanent injury to his lumbar involvement, spondylolisthesis, spinal stenosis and bilateral neuroforaminal

person impairment rating based upon radiculopathy with motor and sensory

that was asymptomatic; (4) the claimant was assessed a thirteen percent whole muscular strain; (3) the claimant has a pre-existing degenerative disc disease claimant had not received any treatment for low back pain other than the 1998

injury.

back injury after slipping on a piece of plastic; (2) prior to that date, the

CAB to make specific findings as to which symptoms are from the work-related

following findings of fact: (1) on November 7, 2003, the claimant suffered a low

(Supp. 2008). The carrier does not cite a statutory provision that requires the of fact and rulings of law within 30 days of the hearing.” RSA 281-A:43, I(b) provides: “The board shall make its decision or order setting forth its findings The CAB further granted certain requested rulings of law as well as the testimony in finding that the claimant’s work-related injury had not ceased. relied upon the assessments of permanent disability and Dr. Sanchez’s

BRODERICK, C.J.