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Appeal of CNA Insurance Company1/29/2001
The petitioner, CNA Insurance Company (CNA), appeals a decision of the New Hampshire Compensation Appeals Board (board) finding it liable for the claimant's, Brian Bethune's, cumulative trauma disability claim. We vacate and remand.
We recite the facts as found by the board or as presented in the record. Bethune developed low back pain in 1987, after approximately six years as a welder at Gilchrist Metal Fabricators, Inc. (employer). He first sought medical treatment for his condition in 1994. His physician diagnosed discogenic disease and prescribed physical therapy. In December 1994, his doctor took him out of work for one week because of worsening back pain and muscle spasms. He returned to work as a welder, working at a smaller bench with lighter weights. Despite these modifications, Bethune's condition worsened.
On April 1, 1995, the employer changed workers' compensation carriers from CNA to respondent Hanover Insurance Company (Hanover). Bethune missed work again from December 1995 to January 1996. In 1996, he was given a sedentary position in purchasing. His back condition continued to worsen, and in May 1996, he left work permanently due to back pain.
The New Hampshire Department of Labor determined that CNA was the responsible carrier because it was on the risk when the claimant lost time from work in December 1994. CNA appealed to the board, which also determined that CNA was responsible because it was the carrier on the risk when the claimant "first ha to cease working because of the disability."
"We will not disturb the board's decision absent an error of law, or unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable." Appeal of Bergeron, 144 N.H. ___, ___, 749 A.2d 296, 298 (2000).
On appeal, CNA argues that the board erroneously concluded that it was the responsible carrier because: (1) the December 1994 period of disability was not caused by the cumulative trauma injury; and (2) when Bethune returned to work from his December 1994 disability, his earning capacity was not diminished. We address each argument in turn.
CNA argues that a "discrete trauma" to Bethune's back, from a physical therapy maneuver, caused his December 1994 disability. This injury, CNA asserts, was separate from Bethune's underlying cumulative trauma condition that caused him to leave work for a month in December 1995 and permanently in May 1996. We disagree.
There was no medical evidence that Bethune ever suffered a "discrete trauma" to his lower back. Rather, the uncontroverted medical evidence was that his lower back condition developed gradually, as a result of years of heavy physical labor. As his treating physician noted, "the labor [Bethune] did at [the employer] probably caused repeated stress injuries to the lower back, increasing the degeneration and wearing and tearing of the discs and probably made him more susceptible to discogenic lower back problems." As another doctor noted, Bethune had "no specific history of trauma. [His condition] slowly worsened . . . ."
Nor was there substantial medical evidence that Bethune's December 1994 back pain and spasms resulted from physical therapy treatment. The contemporaneous medical records of Bethune's treating physician and physical therapist indicated that Bethune had back pain and spasms, but did not attribute these symptoms to physical therapy. The board was entitled to give these records "substantial weight." Appeal of Kehoe, 141 N.H. 412, 417, 686 A.2d 749, 753 (1996) (quotation omitted).
Even if the physical therapy exacerbated Bethune's symptoms, the causal connections between Bethune's December 1994 disability,
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