Appeal of Gamas

642 A.2d 925, 138 N.H. 487
CourtSupreme Court of New Hampshire
DecidedMay 19, 1994
DocketNo. 92-664
StatusPublished
Cited by20 cases

This text of 642 A.2d 925 (Appeal of Gamas) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Gamas, 642 A.2d 925, 138 N.H. 487 (N.H. 1994).

Opinion

Batchelder, J.

The petitioner, George Gamas, appeals the decision of the New Hampshire Department of Labor Compensation [488]*488Appeals Board (board) denying workers’ compensation benefits based upon its determination that the petitioner failed to prove that he was totally disabled. We affirm.

The petitioner was employed as a laborer by Anheuser-Busch in 1980 when he injured his lower back due to heavy lifting in the course of his employment. He was diagnosed as having a strain of the lumbar spine and a herniated lumbar disc. He developed debilitating psychological problems during the following year. According to Dr. Larry Politz, the psychiatrist who examined him at that time, the petitioner suffered from major depressive disorders secondary to his physical condition, combined with psychotic symptoms. In 1981, the petitioner was found by the Social Security Administration to be totally disabled.

The petitioner continued treatment with Dr. Donald Cusson, his orthopedic physician, and began psychiatric treatment with Dr. Politz in 1983. Against the advice of Dr. Cusson, the petitioner returned to work at Anheuser-Busch in 1985 and reinjured his back several months later. He received temporary total disability benefits until August 27, 1991, when a hearing officer for the department of labor found he was no longer totally disabled from employment. The petitioner appealed this decision to the board, which held a hearing on June 5, 1992.

At the hearing before the board, the petitioner submitted documentary evidence from four orthopedic surgeons who had examined him and provided opinions that he remained totally disabled. One of these surgeons, Dr. William Kilgus, testified at the hearing that, in his opinion, the petitioner continues to suffer from a herniated disc, causing pressure on the nerve roots to the lower legs rendering the petitioner “unable to return to any type of work.” Dr. Kilgus’ written report, based on a 1991 examination, describes “a poor range of motion of the [petitioner’s lumbosacral] spine with significant pain and spasm on motion.” On cross-examination, Dr. Kilgus acknowledged that the petitioner has no atrophy in his legs, and that he would expect to see atrophy in an individual with the petitioner’s complaints because of disuse and nerve impairment. He also testified that surgery was not indicated because of minor “objective findings” and “symptom magnification” by the petitioner.

Also submitted on the petitioner’s behalf were reports from three psychiatrists attesting to the petitioner’s seriously disabling mental depression resulting from his injury. His treating psychiatrist, Dr. Politz, testified that the petitioner still suffers from a major depressive disorder “with paranoid or psychotic features.” Dr. Politz de[489]*489scribed the petitioner as irrational, angry, paranoid, and totally preoccupied with his condition, i.e., “his pain and the whole disability process and his employer.” His treatment with Dr. Politz consists of drug maintenance on the mood-stabilizer Klonopin and monthly supportive psychotherapy sessions. In Dr. Politz’s opinion, the petitioner’s poor concentration, depression, judgment and emotional controls make it impossible “at this point in time and in the near future for him to be functioning in a work capacity.” At no time has Dr. Politz found the petitioner to be a “work malingerer.”

The employer’s orthopedic expert, Dr. Mordecai E. Berkowitz, disagreed with the petitioner’s experts, based on his review of the medical records and his own examination of the petitioner. He noted that the petitioner’s 1986 CT scan examination yielded a diagnosis of only “suspicious” for disc herniation, and that there was no observable atrophy of the legs. The leg muscles were better developed than he would have expected from someone in chronic pain for ten years, and the petitioner “had good muscle bulk.” On the whole Dr. Berkowitz opined that the petitioner’s complaints were not explainable “orthopedically and biologically,” and that while he made “some findings, there was not enough to warrant from [his] point of view... ongoing total disability . . . .” Dr. Berkowitz concluded that the petitioner was capable of resuming work “in a light duty to sedentary type work capacity in which he could lift five pounds frequently and 10 pounds on occasion to get him back into the work force . . . .”

The employer’s psychiatric expert, Dr. Robert Weiner, twice examined the petitioner and reviewed a portion of the petitioner’s records. In his opinion, the petitioner is manipulative and exaggerates his impairments, and receives from Dr. Politz a supportive forum for “ventilating] his anger, frustration, desire for vengeance, [and] his profanity . . . .” According to Dr. Weiner, “[f]rom a psychiatric point of view, in terms of mental health, it would be in his best interest to go back to work and to be active. He does not have a mental illness that would prevent him from working.”

The board, by a two-to-one vote, found that the petitioner failed to meet his burden of establishing that he continued to be totally disabled. The majority, the two lay members of the board, found that the petitioner’s objective symptoms of physical disability appeared to be minor, as shown by Dr. Kilgus’ testimony that surgery was not indicated and by the absence of leg atrophy and the presence of good muscle tone to the legs. The majority further noted that despite the petitioner’s claim of experiencing a different amount of pain in each leg, there was no accompanying disparity in muscle bulk or tone. [490]*490With respect to the petitioner’s psychological condition, the majority found that his complaints were “exaggerated and not credible,” and that he was “successfully manipulating” Dr. Politz, who saw him only monthly “in a largely ‘supportive’ role.” The majority concluded that the petitioner’s relationship with Dr. Politz “was simply maintaining [him] at a plateau of tolerance or reinforcement of his sedentary life style characterized by noninvolvement with family and friends.”

The dissenting board member, the attorney member, wrote separately to express his opinion that “[t]he combination of the depressive disorder and persistent lower back impairment render claimant unable to engage in gainful work at this time.” In support of this conclusion, the dissent pointed to evidence that at the time of his injury the petitioner suffered an “‘amputation of the nerve root at [the L4-5 disc],”’ that leg-raising tests administered by two surgeons “showed positive findings,” that the petitioner unsuccessfully attempted to return to work in 1985, and that his pre-injury mental health was normal. The dissent also noted that, of the orthopedic surgeons rendering opinions on the subject, all three who had actually treated the petitioner found him totally disabled as a result of his back injury.

The petitioner moved to reconsider the board’s decision, and, again by a two-to-one vote, the board denied the motion. This appeal followed.

The petitioner essentially argues on appeal that the overwhelming weight of the evidence presented to the board established, by a preponderance, that he was totally disabled from employment. He argues in addition that the decision of the board reflects a failure of the board members, as lay people, to appreciate and apply the correct standard of proof.

We will not overturn the board’s decision unless the petitioner has shown it to be “clearly unreasonable or unlawful . . . .” RSA 541:13 (1974).

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Bluebook (online)
642 A.2d 925, 138 N.H. 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-gamas-nh-1994.