IN RE APPEAL OF MORIN

Case No. 2016-0078.

Appeal of Ann Morin.

Supreme Court of New Hampshire.


ORDER

The claimant, Ann Morin, appeals an order of the New Hampshire Compensation Appeals Board (board) denying her request for payment of certain medical expenses and treatment. She argues that the board erred in: (1) finding that she failed to meet her burden of proof to show medical causation; (2) failing to consider evidence submitted with her motion for rehearing and reconsideration; and (3) finding that she failed to prove that the medical expenses and treatment were reasonable and necessary. She also argues that the board's decision is contrary to the weight of the evidence and seeks attorney's fees and costs on appeal. See RSA 281-A:44, I (2010). We reverse and remand.

The parties do not dispute that on December 18, 2013, the claimant, in the course of her employment as a registered nurse, injured her neck when assisting a patient at the Androscoggin Valley Hospital, her employer. A January 10, 2014 cervical spine MRI demonstrated an "acute disc herniation at the C5-6 causing mild cord deformity and moderate bilateral, right greater than left, foraminal stenosis." On February 7, 2014, the claimant's treating neurosurgeon, Anthony Salerni, M.D., performed a C5-6 anterior discectomy and fusion with hardware. In a May 9, 2014 decision, the department of labor found that the C5-6 disc herniation, the February 7, 2014 surgery, and the treatment following it, were causally related to the claimant's December 18, 2013 work injury.

After the surgery, the claimant continued to experience neck pain, shoulder discomfort, occipital headaches, arm aches, and numbness in her fingers. To address this residual pain, Dr. Salerni referred the claimant to Jan Slezak, M.D., for pain management treatment. Dr. Slezak's treatment included trigger point injections, occipital nerve blocks, and a recommendation that the claimant use a TENS unit. On April 11, 2014, the claimant was involved in a motor vehicle accident. In an August 17, 2015 letter to the claimant's counsel, Dr. Salerni opined that the motor vehicle accident "increased the symptoms temporarily," but that the increased symptomology "subsequently settled down." Between October 1, 2014, and March 5, 2015, the employer's workers' compensation insurance carrier denied three claims for pain management treatment with Dr. Slezak as well as a claim for the TENS unit. The claimant requested a hearing, and on July 14, 2015, a hearing officer denied her request for payment. At the hearing, the employer provided no medical evidence. However, based upon Dr. Salerni's reports, the hearing officer concluded that the motor vehicle accident was "an intervening injurious event that breaks the chain of causation." The claimant appealed this decision to the board, which affirmed the hearing officer's decision.

The issue presented to the board, as stated in its November 24, 2015 decision, was "whether the cost of pain management treatment, trigger point injections and occipital nerve blocks[ ] by Doctor Slezak[,] as well as provision of a TENS unit," are the responsibility of the employer. We will not disturb the board's decision absent an error of law unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable. Appeal of Phillips, 169 N.H. 177, 180 (2016); see RSA 541:13 (2007).

An employer has a continuing obligation to provide or pay for medical, hospital, and remedial care for as long as it is required by an injured employee's condition. Appeal of Wingate, 149 N.H. 12, 15 (2002); see RSA 281-A:23, I (2010). The progression of a work-related condition remains compensable as long as the worsening is not shown to have been produced by an independent, intervening cause. Appeal of Cote, 139 N.H. 575, 581 (1995). The claimant bears the burden of proving the causal relationship between her continuing medical treatment and her work-related injury. Appeal of Wingate, 149 N.H. at 15. To meet this burden, the claimant must prove the causal relationship by a preponderance of the evidence. See N.H. Admin. Rules, Lab 203.10(a). "`Proof by a preponderance of evidence' means a demonstration by admissible evidence that a fact or legal conclusion is more probable than not." N.H. Admin. Rules, Lab 202.05.

In an April 23, 2013 letter to Dr. Salerni, the claimant's counsel asked the physician for his opinion as to whether the claimant's pain management treatment was related to her December 18, 2013 work injury. Counsel advised Dr. Salerni that "[a]ny opinion that you are able to offer must expressly state that your opinion is based upon reasonable medical probability." Dr. Salerni responded in a June 3, 2015 letter stating: "It is clear that the [work-related] injury produced the herniated disc and, consequently, all treatments subsequent to that are a consequence of this injury. This includes the trigger point injections and steroid injections at the pain clinic." (Emphasis added.) The board ruled that the claimant failed to meet her burden to prove medical causation because "[t]here is no medical opinion in the record from any provider articulating that the pain management treatment subject of claimant's claim and subject of this hearing was either made necessary by or related to the claimant's December 2013 injury to a reasonable medical probability."

The carrier argues that the board's decision should be upheld because Dr. Salerni qualified his opinion in the June 3, 2015 letter by noting that the claimant's "symptoms were re-aggravated" after the April 11, 2014 motor vehicle accident. However, in the same letter, Dr. Salerni described the aggravation as "minor" and stated that "[i]t is highly unlikely that this automobile accident would have resulted in any chronic condition." Moreover, after referencing the motor vehicle accident, Dr. Salerni reiterated his opinion that "the continued pain and the discomfort in the neck and head that she had injections for were a consequence of the original work-related injury on December 18, 2013." Furthermore, in an August 17, 2015 letter, Dr. Salerni clarified his opinion, stating that by using the word "aggravation," he did not mean "to suggest that there was a new injury."

Based upon this record, we conclude that the claimant met her burden of proving medical causation by a preponderance of the evidence. Dr. Salerni opines that "[i]t is clear" that the claimant's continuing medical treatment is causally related to her work injury, and not to her motor vehicle accident. Nothing in the workers' compensation statute or the department of labor regulations requires the claimant's physician to state his opinion expressly in terms of "reasonable medical probability." The board's decision to the contrary is erroneous. See Appeal of Phillips, 169 N.H. at 180.

The record shows that the claimant moved for reconsideration of the board's decision, asserting that Dr. Salerni expressed his opinion with the necessary degree of medical certainty. The board denied the motion on other grounds, ruling that "there are no medical records in the hearing record from Dr. Slezak or Week's Medical Center providers documenting that the medical bills at issue at the hearing are reasonable, necessary and related based upon a reasonable degree of medical probability." The claimant argues that the board erred in denying her motion on this basis because the reasonableness and necessity of the treatment was not an issue in the department of labor proceedings. The carrier counters that it raised this issue in its denial letters, which were part of the record before the hearing officer.

The record shows that the carrier's letter denying the claim for the TENS unit stated: "CLAIM WAS DENIED AND TREATMENT NOTES DO NOT CONFIRM WHAT THE TREATMENT WAS FOR AND I AM NOT ABLE TO CLARIFY CAUSAL." The letters denying the claims for Dr. Slezak's treatment stated: "UNCLEAR IF TREATMENT IS CAUSALLY RELATED TO INJURY." We conclude that these letters cannot reasonably be construed to raise the issue of the reasonableness and necessity of the treatment. The words "reasonable and necessary" do not appear in the letters. Moreover, the carrier did not challenge the reasonableness and necessity of the treatment in the department of labor proceedings. "The board's de novo review is limited to issues raised in the department of labor proceedings being appealed." Appeal of Fay, 150 N.H. 321, 324 (2003). Accordingly, we conclude that the board erred in denying the appeal on this basis.

Based upon our review of the record, we conclude that the claimant met her burden to prove a causal relationship between her continuing medical treatment and her work-related injury. See Appeal of Wingate, 149 N.H. at 15. The board's contrary conclusion is not supported by any medical evidence and is clearly unreasonable. See Appeal of Phillips, 169 N.H. at 180.

In light of our conclusion, we need not consider the claimant's remaining arguments. The employer is responsible for payment of the medical expenses and treatment at issue.

The claimant is awarded attorney's fees and costs on appeal. See RSA 281-A:44, I. Within thirty days, the claimant may file with this court a motion for attorney's fees and costs incurred in connection with the appeal to this court. See Appeal of Brown, 143 N.H. 112, 121 (1998). On remand, the board shall award attorney's fees and costs incurred at the administrative level. See id. at 121-22. Any party aggrieved by the board's order on fees and costs may appeal to this court pursuant to RSA chapter 541. See id. at 122.

Reversed and remanded.

HICKS, CONBOY, and LYNN, JJ., concurred.


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