2009-265, Petition of Martin J. Dunn

Ransmeier & Spellman Professional Corporation

(New Hampshire Retirement System)

No. 2009-265

Original him as a group II member of NHRS. See psychological evaluation and background examination. This position qualifies was hired as the chief of police in the Town of Jaffrey following a satisfactory The following facts appear in the administrative record. In 2002, Dunn

remand. application for accidental disability retirement (ADR) benefits. We vacate and respondent, the New Hampshire Retirement System (NHRS), denying his CONBOY, J. The petitioner, Martin J. Dunn, appeals a decision of the

(defining group II members to include permanent policemen).

THE SUPREME COURT OF NEW HAMPSHIRE the respondent.

Mullen on the brief and orally), for the petitioner.

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 make an appointment. p. 2 “became ill from just reading that e-mail,” and called his physician that day to containing derogatory statements about Dunn and questioning his sanity. He a selectman sent to various parties, and apparently inadvertently sent to him, lawsuit against him. In February 2006, Dunn received an email message from Dunn’s employment troubles also became fodder for the letter-writer’s ongoing chief, but was unable to fire him because he had not yet done anything wrong. selectmen stated in an editorial that the board did not want Dunn as police After his return to work, Dunn’s stressors continued. One of the

including frequent diarrhea, insomnia, and intense and frequent headaches. months earlier. During this time, Dunn’s stress symptoms became severe, warning for an incident of insubordination that allegedly took place eighteen subsequently reinstated to his position, although he was given a letter of with pay, and conducted a month-long investigation of him. Dunn was The next day, December 8, 2005, the town manager suspended Dunn

letter he sent the U.S. Attorney. Attorney, and on December 7, he provided the town manager a copy of the 2005, Dunn informed the town manager that he had contacted the U.S. him to suspect impropriety on the part of the town manager. On December 6, in November 2005, Dunn’s separate investigation of a federal loan matter led manager that he would have to refer the matter to the county attorney. Then, neighboring town regarding the town manager. Dunn informed the town initiated the investigation following a complaint from the police chief of a supervisor, the town manager of Jaffrey, who was also town counsel. Dunn During the fall of 2005, Dunn also undertook an investigation of his

headaches, neck pain, and insomnia, but did not seek medical treatment. time, Dunn started suffering physical symptoms of stress, including then obtained union representation and filed a grievance against Dunn. At this town. Around October/November 2005, Dunn discharged a police officer, who 2005, Dunn applied unsuccessfully for a chief of police position in another shortages and department in-fighting were stressful for Dunn. In September selectmen over the police department budget. Throughout 2005, staffing In the summer of 2005, Dunn engaged in a public dispute with Jaffrey

the internet attacks continued. Although the letter-writer’s lawsuit against Dunn was dismissed in late 2006, in the courts and on the internet between Dunn and the letter’s author. sue him and the police department. This began a lengthy dispute waged both In December 2004, Dunn received a letter on NAACP stationery threatening to beginning in 2004 and continuing through his final day of work in July 2006. In addition to budgetary challenges, Dunn faced a number of stressors depressed mood,” and explaining, “Stress associated with work conflict and [its] p. 3 statement diagnosing Dunn with “Adjustment Disorder with mixed anxiety and connection with the application, Dr. Kimmel filed a treating physician’s had four years and four months of creditable service in his position. In On February 1, 2007, Dunn applied for ADR benefits, at which time he

him, and with the consequence of this to himself and his family.” Disorder started about the time of his suspension and the investigation against with the Town Manager and then the Board of Selectmen. The Adjustment appears to have arisen as a result of personnel issues, particularly conflicts work at the Town of Jaffrey.” Instead, Dr. Drukteinis noted, “[Dunn’s] stress depressed mood,” but opined that Dunn’s disorder “is not due to his police symptoms were consistent with “Adjustment Disorder with mixed anxiety and his pending workers’ compensation claim. Dr. Drukteinis agreed that Dunn’s conducted an independent psychiatric evaluation of Dunn in connection with employment with the town. On November 28, 2006, Dr. Albert M. Drukteinis it did not find a causal relationship between Dunn’s medical condition and his compensation benefits pending an independent medical examination, because On August 11, 2006, Primex denied Dunn’s application for workers’

expired, Dunn was terminated. compensation insurer. In October 2006, when his authorized leave time 2006, Dunn submitted a similar report to Primex, the town’s workers’ December 8, 2005, and by July 9, 2006, was totally disabled. On July 27, report of disability, claiming that he had become partially disabled on because his symptoms had not improved. On July 22, 2006, Dunn filed a vacation time and then left on indefinite sick leave on his doctors’ advice Dunn continued to work until July 2006, when he used two weeks’

Kimmel, a psychologist, in early May 2006, and has continued to see him. regular basis. On Dr. Benton’s suggestion, Dunn began seeing Dr. Melvin prescribed medications, and recommended that Dunn seek counseling on a from “Adjustment Disorder with Mixed Anxiety and Depressed Mood.” He associated with on going job conflict,” and determined that he was suffering psychiatrist. Dr. Benton agreed that Dunn was experiencing “severe stress Frechette’s recommendation, Dunn also met with Dr. Christopher Benton, a a rash, Dr. Frechette prescribed medications for anxiety and diarrhea. On Dr. In early April 2006, after Dunn’s symptoms intensified and he developed

complied. related. He suggested that Dunn take two weeks off from work, and Dunn conducting various tests, he concluded that Dunn’s symptoms were stressvomiting. Dr. Frechette was aware of Dunn’s job-related issues and, after and complained of insomnia, frequent headaches, diarrhea, nausea and On February 13, 2006, Dunn saw his physician, Dr. Richard Frechette, from police duties or his interactions with the Town Manager and

p. 4 experiences but does not distinguish whether those problems arose

frequently and notes that he has problems as a result of his related injury. The applicant’s treating psychologist has seen him

NHRS, also concludes that the applicant does not have a workby Dr. Drukteinis, an IME who frequently evaluates cases for the work-related injury. The IME for workers’ compensation, written that concludes that the applicant has a personnel issue, not a case, Dr. Sack, the system’s IME[,] has written a 16 page opinion bears the burden of proof that his injury is work-related. In this

has been denied by the workers’ compensation carrier, the member

When a member accepts a lump sum settlement of a claim that

benefits. The recommendation stated: 2007 recommendation of the NHRS hearings examiner to deny Dunn ADR On October 9, 2007, the NHRS board of trustees approved the October 9,

treatment. memorandum refuting Dr. Sack’s opinion regarding Dunn’s diagnosis and as the doctors believed. On September 4, 2007, Dr. Kimmel prepared a that position in 2005, prior to the onset of his disability, rather than in 2006, a police chief. However, evidence in the record indicates that Dunn applied for position in a neighboring town as evidence that he could perform the duties of received Dr. Drukteinis’s report, pointed to Dunn’s application for a police chief inability to work with his bosses.” Both Dr. Drukteinis and Dr. Sack, who his duties as Police Chief that brought about his illness; rather, it is his duties of a police chief, stating, “I am of the very strong opinion that it is not features.” Dr. Sack opined that Dunn is not incapacitated from performing the disorder, not otherwise stated, with marked obsessive and narcissistic stated, with depressive, anxiety and psychosomatic features” and a “Personality report diagnosing Dunn with a “Major Depressive Disorder, not otherwise conduct an additional independent psychiatric evaluation of Dunn, issued his On August 7, 2007, Dr. Joseph Sack, a psychiatrist retained by NHRS to

disability at 21 [years] life expectancy.” handwritten notation reads, “This is a settlement premised on permanent total expenses. On the area of the agreement form marked “Social Security offset,” a amount of $95,000, $19,000 of which represented attorney’s fees and lump sum settlement agreement between Dunn and the Town of Jaffrey in the In May 2007, Dunn’s workers’ compensation petition was resolved by a

psychological symptoms which are likely to be permanent. Dunn’s “job related stress” has resulted in continuing physical and and occupational impairment in functioning.” Dr. Kimmel also opined that aftermath continues to be experienced in the form of personal, physical, social as he kept trying to meet the challenges of his job. However, there p. 5 testified that he suffered from headaches, neck pain, and insomnia of the way the town manager performed his duties. The applicant lack of officers, the grievance by the union, and his growing dislike lawsuit . . ., his difficulties in hiring officers, overtime due to the

He testified to a number of stressful events in 2005 including the gradual degeneration occurring in the actual performance of duty. The applicant posits that his injury arises from repeated trauma or

gradual degeneration” injury, the hearings examiner reasoned: Dunn. In rejecting Dunn’s claim that he suffered a “repeated trauma or accepted the hearings examiner’s recommendation to deny ADR benefits to original petition. On March 10, 2009, the board of trustees of NHRS again same NHRS hearings examiner who had recommended denial of Dunn’s In December 2008, a second two-day hearing was conducted before the

during the two years since his evaluation. been providing “ongoing medical, psychiatric, and psychological treatment” another setting, he likewise deferred to Dunn’s treating physicians, who had that issue.” As to Dunn’s abilities to perform work as a chief of police in resolve the factual matter of work-relatedness, I would defer my opinion on [his] duties of Police Chief.” Dr. Drukteinis stated that “[s]ince this appears to work related” and that the “injury/illness rendered [Dunn] unable to perform statement that “[i]t has been determined that this injury/illness was deemed that he had learned of Dunn’s workers’ compensation settlement and Primex’s information that became available after his evaluation of Dunn. He indicated On November 7, 2008, Dr. Drukteinis revised his position based on

the foreseeable future. from job-related conflict” and that Dunn was unable to work at that time or for of the opinion that Dunn’s disability was the result of “severe stress stemming “intrusive recollections of traumatic job-related events.” Dr. Kimmel remained otherwise specified, which included many of the same symptoms, as well as disorder with mixed anxiety and depressed mood to an anxiety disorder, not Dunn on fifty-eight occasions. His diagnosis changed from adjustment diagnosis, treatment, and prognosis. By this time, Dr. Kimmel had met with On February 5, 2008, Dr. Kimmel updated his 2007 summary of Dunn’s

Dunn moved for reconsideration in November 2007.

deny the application for accidental disability retirement.

not personnel-related and recommends that the Board of Trustees burden of proof that his psychological injury is work-related and

Hearings Examiner finds that the applicant has not met his

the Selectmen. Based upon the evidence in the record, the words ‘a settlement premised on total and permanent disability p. 6 [workers’ compensation] lump sum settlement but there is no evidence that the his burden of proving medical causation. She stated, “There is a large The hearings examiner ultimately found that Dunn had not sustained

investigation.” She also noted other potential causes for the suspension.

November and December. . . . Budget issues may have triggered the which means that the town manager would have been finalizing the budget in chief,” and took “judicial notice that Jaffrey is a traditional town meeting town triggered an examination of the conduct of the applicant in his role as police his disability was the result of a single event, rather than repeated trauma or hearings examiner referred to “a number of events . . . that might have On appeal, Dunn asserts that the hearings examiner erred by: (1) finding one day after Dunn had reported him to the U.S. Attorney. Instead, the argument that the town manager had acted in bad faith by suspending him manager on 12/8/05.” Moreover, the hearings examiner rejected Dunn’s applicant’s Adjustment Disorder was his unexpected suspension by the town concluded that “the identifiable psychosocial stressor that caused the disciplining [Dunn] wasn’t the stress.” The hearings examiner nonetheless attributable to a specific set of stresses,” and that “it wasn’t the discipline . . . its heart of “emotional symptoms and behavioral symptoms that can be directly adjustment disorder with which he had originally diagnosed Dunn consists at Dr. Kimmel had testified before the hearings examiner that the

incapacity and permanency. A:6.” Having reached this conclusion, she did not address the issues of work-related injury and he does not qualify for [ADR benefits] under RSA 100- Anxiety and Depressed Mood which resulted from the suspension is not a under RSA 281-A:2, XI, the applicant’s Adjustment Disorder with Mixed against the town manager. She ultimately concluded that, “as a matter of law whom Dunn reported the town manager’s behavior had launched proceedings revised opinion. She also pointed out that none of the prosecutorial officials to reference to Dr. Drukteinis’s 2006 report, but made no reference to his 2008 medical finding.” (Emphasis in original.) She supported this conclusion by benefits. ’ are based on a prepared in connection with his petitions for workers’ compensation and ADR listing December 8, 2005, as the date of injury, including the forms Dunn town manager.” She based this finding on documentary evidence in the record suffered an occupational disease as a result of his 12/8/05 suspension by the She found, “The weight of the evidence supports a finding that the applicant

psychiatric injury. suspension on 12/8/05 to support a gradual trauma medical or

is no medical evidence in the record from before the applicant’s of and peculiar to the particular trade, occupation or employment,” or “the p. 7 of the employee’s employment and due to causes and conditions characteristic defines an occupational disease as “an injury arising out of and in the course definition of “occupational disease.” RSA 100-A:6, II(c)(1)(C). RSA 281-A:2, XIII statute refers to RSA chapter 281–A, the workers’ compensation statute, for its The “occupational disease” section of the accidental disability retirement

he had not met his burden of proving medical causation. subsection (C), but recommended against awarding benefits because she found found that he was disabled as the result of an “occupational disease” under trauma or gradual degeneration” under subsection (B), the hearings examiner Although Dunn argued that his injury was the result of “[r]epeated

RSA 100-A:6, II(c)(1) (Supp. 2009).

RSA 281–A:17. employment as defined by RSA 281–A:2, XI, RSA 281–A:2, XIII, or (C) Any occupational disease arising out of or in the course of

of employment; or the actual performance of duty, or arising out of and in the course

(B) Repeated trauma or gradual degeneration occurring while in

at some definite time and place; or (A) An accident occurring while in the actual performance of duty

permanent incapacity for duty as the natural and proximate result of either: Dunn’s entitlement to ADR benefits requires that he establish total and

[NHRS].” Petition of Concord Teachers of certiorari is the sole remedy available to a party aggrieved by a decision of “Because RSA chapter 100-A does not provide for judicial review, a writ

N.H. 13, 16 (1981) (quotation omitted). there is competent evidence in the record.” City of Portsmouth v. Meaney, 121 disability resulting therefrom are questions of fact that will not be disturbed if “[T]he determination as to the existence of an injury . . . and the extent of the Farmington Teachers Assoc., 158 N.H. 453, 455 (2009) (quotation omitted). discretion or acted arbitrarily, unreasonably, or capriciously.” Petition of conclusion which cannot legally or reasonably be made, or abused its jurisdiction, authority or observance of the law, whereby it arrived at a standard of review is whether the board acted illegally with respect to

recommendation. trustees did not have all of the relevant information when it adopted her report on several pieces of evidence favorable to him, such that the board of that the disciplinary action was not undertaken in good faith; and (3) failing to gradual degradation; (2) concluding that he had not met his burden of proving permanent incapacity from duty.” RSA 100-A:6, II(c)(3); see p. 8 work-related injury naturally and proximately resulted in [his] total and injury of the type described in subparagraph (c)(1)(A)–(C), and also that the “to prove by a preponderance of the evidence the existence of a work-related workers’ compensation claim that had previously been denied, he is required RSA 100-A:6, II(c)(3). Because Dunn entered into a lump sum settlement of a

hearing pursuant to RSA 281–A:43.

condition.” Appeal of Kehoe the labor commissioner or the compensation appeals board after a showing that the injury was actually caused by the work-related event or insurance carrier and not found compensable by final decision of claimant’s injury is in some way work-related, while medical causation requires was at any time denied by the employer or the employer’s causation and medical causation. Legal causation entails a showing that the member enters into a lump sum settlement of an injury claim that “The test for causation has two prongs; a claimant must prove both legal

proving causation before the [NHRS] board of trustees if the The member applying [for ADR benefits] shall have the burden of matter of medical fact would be sufficient to show legal causation.” Id. preexisting condition, any work-related activity connected with the injury as a employee.” Id. (quotations and citation omitted). “Where there is no injury work-connected,” and “depends upon the previous health of the legal causation test defines the degree of exertion that is necessary to make the

causation under the workers’ compensation statute. statute as follows: related injury, see Poulicakos, 160 N.H. at ___, we look to our cases addressing Dunn’s burden of proof is set forth in the accidental disability retirement under RSA 100-A:6, II(c)(1) that the member’s incapacity be caused by a workcompensation claim generally serves as a proxy for the determination required claims). Because a final finding of compensability of a corollary workers’ thus, lack a final finding of compensability of their workers’ compensation applies to those claimants who have entered into lump sum settlements and, Poulicakos, 160 N.H. ___, ___ (decided June 30, 2010) (RSA 100-A:6, II(c)(3)

employer.” RSA 281–A:2, XI. layoff, demotion, termination, or any similar action, taken in good faith by an injury if it results from any disciplinary action, work evaluation, job transfer, pertinent part, that, “‘Injury’ or ‘personal injury’ shall not include a mental employment.” RSA 281–A:2, XIII (2010). RSA 281–A:2, XI provides, in direct result of an accidental injury arising out of or in the course of compensation law. Appeal of Anheuser-Busch Co. p. 9 case the cumulative trauma injury is compensable under our workers’ which is so intolerable that it prevents the claimant from working,” in which of some pain, resulting in an acute manifestation occurring on a particular day cumulative trauma injury often may develop gradually, and with the presence gradual trauma medical or psychiatric injury.” But we have observed that “[a] the record from before the applicant’s suspension on 12/8/05 to support a stressors and symptoms, but concluded that “there is no medical evidence in Dunn’s “gradual degeneration” claim, the hearings examiner acknowledged his standard for a “repeated trauma or gradual degeneration” injury. In evaluating It appears that the hearings examiner did not apply our well-settled

claim are not binding upon NHRS, see Kacavisti v. Sprague Electric Co., 102 N.H. 266, 269-70 (1959). Although Primex’s finding and Dunn’s settlement of his workers’ compensation (quotations omitted); see also Appeal of Briggs, 138 N.H. 623, 626-28 (1994); capabilities, and to Primex as to its finding that Dunn’s injury is work-related., 156 N.H. 677, 680 (2008) 2008, revised his 2006 report to defer to Dunn’s treating physicians as to his Kimmel, agreed that Dunn suffered from job-related stress. Dr. Drukteinis, in Dunn’s three treating physicians, Dr. Frechette, Dr. Benton, and Dr.

examiner erred as a matter of law. discipline was not taken in good faith. In so limiting her analysis, the hearings that Dunn had not met his burden of establishing that the incident of examiner limited her analysis to a single incident of discipline, and concluded the evidence did not support a finding of medical causation, the hearings medical evidence supports an occupational disease.” However, in ruling that the existence of Dunn’s injury: the hearings examiner’s report states that “the N.H. 120, 125 (1993), NHRS apparently agreed with the medical evidence as to

Appeal of Kehoe or contributed to the employee’s disabling injury as a matter of medical fact.” preponderance of the evidence, that the work-related activities probably caused “The test for medical causation requires the claimant to establish, by a

(quotations omitted). her] condition, their reports must be accorded substantial weight.” Id. “Because a claimant’s treating physicians have great familiarity with [his or rather than solely upon its own lay opinion.” Id. (quotations omitted). [NHRS is] required to base its findings on this issue upon the medical evidence causation is a matter properly within the province of medical experts, and the

, 141 N.H. at 417 (quotations and brackets omitted). “Medical

Therefore, a showing of medical causation would also establish legal causation. psychological pre-employment evaluation report of Dr. Stephen J. Seeman. Dunn established a lack of preexisting condition through the 2002 cumulative trauma claim under the correct standard is her focus on the date p. 10 Another indication that the hearings examiner did not analyze Dunn’s

effects of all the asserted stressors in evaluating Dunn’s claim. circumstances, it appears that the hearings examiner failed to consider the and the point at which he finally sought medical attention. Under these Dunn explained was a reaction to the selectman’s email attacking his sanity on February 13, 2006, referring to the “anxiety attack the week before,” which 10 cites the medical records from Dunn’s first stress-related visit to Dr. Frechette numerous others that caused the stress to continue and intensify.” She also herself reported that the suspension, “a traumatic event,” was “followed by job-related stressors after his suspension. Moreover, the hearings examiner to his December 2005 suspension indicate the presence and effects of other the hearings examiner cites in support of limiting the basis of Dunn’s disability Disorder was his unexpected suspension.” However, many of the documents the “identifiable psychosocial stressor that caused the applicant’s Adjustment Police Chief” more than six months after his suspension, she concludes that that the applicant’s stress continued until it forced him to leave his job as “the totality of the evidence,” and observes that “[t]he record contains evidence she identified that incident as Dunn’s suspension. Although she references Depressed Mood” to require the identification of a single causal incident, and Dunn’s consensus diagnosis of “Adjustment Disorder with Mixed Anxiety and and the Town’s finding of work-relatedness. She seems to have interpreted sole “accidental injury” underlying his claimed disability and rejected Primex’s petition, she apparently considered his December 2005 suspension to be the The hearings examiner here made the same error. In evaluating Dunn’s

petitioner’s impairment.” Id. at 537. with the effect of the 1988 fall, rather than with an overall evaluation of the injuries, id. at 538-40, because “[t]he hearing[s] officer was primarily concerned omitted). We vacated the department’s rulings on the carpal tunnel and neck connect this condition with a single traumatic incident.” Id. at 539 (quotation was the result of a degenerative condition and “that there was little evidence to subject of a permanent impairment award, and concluded that the neck injury petitioner’s carpal tunnel syndrome predated the fall, it was not properly the 536. In focusing on the fall, the hearings officer found that because the appeared in the petitioner’s medical records three years after the fall. Id. at job site, shoulder pain immediately after the fall, and a neck injury that first Croteau, the petitioner had suffered carpal tunnel symptoms prior to a fall at a impairment award.” Petition of Croteau, 139 N.H. 534, 538 (1995). In particular accident in evaluating the petitioner’s claim for a permanent chapter 281-A, “acted contrary to law when it considered only the effects of a have held that the department of labor, considering a petition under RSA injury constitutes legal error. See, e.g., Appeal of Briggs, 138 N.H. at 627. We Moreover, requiring a single traumatic event to establish such a claimed p. 11 Vacated and remanded

with this opinion, and need not address the petitioner’s remaining arguments. Accordingly, we vacate and remand for further proceedings consistent

employee’s disabling injury as a matter of medical fact.” Appeal of Kehoe BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, J J., concurred. evidence, that the work-related activities probably caused or contributed to the rather, it is the employee’s burden to “establish, by a preponderance of the need to establish that good faith discipline did not cause the claimed injury; the burden of proof on the issue of medical causation. An employee does not not compensable through the workers’ compensation system, it did not alter disability resulting from the stress caused by a good-faith disciplinary action is When the legislature amended RSA 281-A:2 in 2001 to provide that

personnel action from the definition of “injury” stress-related disability resulting from good faith related” injury. This distinction is not authorized by law. The statute excludes injury, and concluded that Dunn suffered from a non-compensable “personneldistinction between “work-related” and “personnel-related” psychological. Further, we note that the hearings examiner apparently made a

injury arises out of and in the course of employment). Malouin, 155 N.H. 545, 547-48 (2007) (setting forth the test for whether an N.H. at 417 (emphasis, quotations and brackets omitted); cf. Appeal of

activities. the public.” It is clear, therefore, that “police work” includes personnel-related effective working relationships with other Town officials, . . . civic leaders, and capabilities necessary for the performance of the job is the “[a]bility to maintain “personnel problems affecting any member of the Department.” Among the Board of Selectmen on any major policy changes”; and addressing any upon the needs of the Town and the Police Department”; consulting “with the “Department goals, objectives, policies, regulations, and procedures based separation, evaluation and discipline of staff.” It also includes: establishing and his July 2006 cessation of duties. police chief for the Town of Jaffrey, which includes “responsibility for hiring, personnel responsibilities. The record contains the job description for the that is “personnel-related.” Here, the petitioner’s duties specifically included

. RSA 281-A:2, XI. It does not exclude all stress-based injury

aggravating stressors occurring between Dunn’s December 2005 suspension the hearings examiner should have considered all of the additional asserted Therefore, in evaluating whether Dunn suffered a cumulative trauma injury, until the employee is unable to continue working.” Briggs, 138 N.H. at 631. “Cumulative trauma . . . does not result in injury under New Hampshire law when Dunn considered his disability to be “partial,” rather than complete.