Petition of Gilpatric3/25/1994
The petitioner, Sandra Gilpatric, challenges the decision of the New Hampshire Department of Labor (department) awarding an eight percent permanent impairment award under RSA 281-A:32 (Supp. 1993) (paragraph XII effective until Jan. 1, 1994) (amended effective Jan. 1, 1994). Gilpatric argues that the department erred in not accepting the dual diagnosis found in a previous superior court order, and in disregarding her expert's opinion as to impairment. We affirm.
Gilpatric had been employed at the International Packaging Corporation as a factory assembly-line worker for nearly fifteen years when, in early 1988, she began to experience tingling and numbness in both her hands and forearms. Her condition was diagnosed as carpal tunnel syndrome, which results from a narrowing of the space between the forearm and hand (carpal tunnel) or an enlarging of the structures within the wrist, causing compression of the median nerve. 3B R. Gray & L. Gordy, Attorneys' Textbook Of Medicine\P 100.54, at 100-72 to 100-73 (1988). After surgery on her right wrist in April 1988, Gilpatric returned to the factory. She stopped work at the end of 1988, however, because of problems in her left wrist that eventually led to surgery in March 1990.
After an August 22, 1990, hearing at the department concerning Gilpatric's cooperation with vocational rehabilitation under RSA 281-A:25 (Supp. 1989) (amended 1990) and the extent of her disability under RSA 281-A:48 (Supp. 1993) (paragraph V effective until Jan. 1, 1994) (amended effective Jan. 1, 1994), the department reduced Gilpatric's benefits from temporary total disability to the diminished earning capacity rate. The petitioner's de novo appeal to the superior court, pursuant to the then-existing appeal procedure under RSA 281-A:48, V , resulted in the reversal of the department's decision and the reinstatement of temporary total disability compensation. The court stated in its order of April 21, 1992, that the "nature of Ms. Gilpatric's injuries is bilateral carpal tunnel/overuse syndrome...."
The final hearing before the department was held on December 10, 1992, after Gilpatric made a request for a permanent impairment award pursuant to RSA 281-A:32. In this proceeding, the petitioner's expert, Dr. Rex Carr, presented a rating of thirty-one percent impairment, based on a diagnosis of bilateral carpal tunnel syndrome and overuse syndrome, while the insurance carrier's expert, Dr. Kenneth O'Neil, whose diagnosis was solely bilateral carpal tunnel syndrome, rated it as eight percent impairment. On December 21, 1992, the department determined that Gilpatric was entitled to an eight percent permanent impairment award. Her motion for reconsideration was denied.
Prior to January 1, 1994, permanent impairment awards of the labor commissioner were final, see RSA 281-A:32, XII (Supp. 1993) (effective until Jan. 1, 1994), and the appropriate remedy for a dispute was certiorari. Petition of Blackford, 138 N.H. 132, 133, 635 A.2d 501 , 502 (1993). But see Laws 1993, ch. 226 (effective Jan. 1, 1994).
Gilpatric first argues that the superior court's finding in the de novo appeal regarding her diagnosis is entitled to preclusive effect in this proceeding. We disagree.
If a prior judgment is to estop a party in a later action from relitigating an issue, then at a minimum the issue subject to estoppel must be identical in each action, the first action must have resolved the issue finally on the merits, and the party to be estopped must have appeared in the first action, or have been in privity with someone who did so. Petition of Breau, 132 N.H. 351, 360, 565 A.2d 1044, 1049 (1989). The party to be estopped must have had a ful
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