Appeal of Redimix Companies, Inc.

969 A.2d 474, 158 N.H. 494
CourtSupreme Court of New Hampshire
DecidedApril 3, 2009
Docket2008-448
StatusPublished
Cited by2 cases

This text of 969 A.2d 474 (Appeal of Redimix Companies, Inc.) 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 Redimix Companies, Inc., 969 A.2d 474, 158 N.H. 494 (N.H. 2009).

Opinion

DALIANIS, J.

The petitioner, Redimix Companies, Inc. (Redimix), appeals a decision of the New Hampshire Compensation Appeals Board (CAB) in which the CAB ruled that the respondent, Brandon Lafond, had suffered either a new injury or an aggravation of a pre-existing condition on March 27, 2006, and was entitled to weekly benefits through his return to work on October 28, 2007. We vacate and remand.

*495 The CAB found or the record supports the following facts. Lafond has suffered from lower back pain since 1998 after he fell from a ladder. Since March 2003, he has worked for Redimix as a cement truck operator, which involves heavy-duty work.

Lafond received treatment for his lower back pain both before and after his employment with Redimix. He sought treatment in October 2000, February 2001, September 2001, April 2002, August 2002, February 2003, June 2003, December 2003 and August 2004, and on each occasion was given medicine for his pain. X-rays taken of his back in 2002 and 2003 were negative. In February 2005, Lafond again complained of lower back pain. He had similar complaints in November 2005 and February 2006. Lafond did not miss work as a result of the low back pain he experienced periodically from 1998 to February 2006.

On March 27,2006, while driving a fully loaded cement truck, Lafond hit a pothole with such force that his body lifted out of the seat, his head hit the truck’s roof and, when his body fell back to the seat, the seat bottomed out. He felt an immediate pop in his back and pain radiating down his left leg. Within hours, his left leg felt tingling, numb and cold. Lafond immediately reported the incident.

Lafond reported to work the next day, but was placed on light duty, performing only sedentary work. Several days later, at Redimix’s direction, Lafond sought medical attention at Lakes Region General Hospital where Christopher Almeida, D.O., examined him. Dr. Almeida’s examination revealed a positive sciatic stretch. A lumbar MRI showed that Lafond had degenerative disc disease at the L4-5 and L5-S1 levels, a central herniation of the L4-5 intervertebral disc, which slightly impinged on the L5 nerve roots on both sides, and a central herniation of the L5-S1 intervertebral disc, which slightly impinged on the descending SI nerve roots on both sides.

Approximately one month after the March 27,2006 incident, Lafond saw Dr. Arnold Miller, who had treated him previously for lower back pain. Dr. Miller opined that the March 27,2006 incident had caused Lafond to suffer ongoing radiculopathy down his left leg. Dr. Miller referred Lafond to a clinic for epidural injections, which did not significantly relieve his symptoms. Lafond underwent physical therapy, which made his back and left leg feel worse. Eventually, Lafond was referred to a neurosurgeon, Anthony A. Salerni, M.D., who recommended and, on December 29, 2006, performed, surgery, removing Lafond’s L4-5 and L5-S1 intervertebral discs.

Before his surgery, Lafond returned to work, performing temporary alternative work, but was suspended for thirty days in May 2006 after testing positive for cocaine. Redimix discharged Lafond for cause in October 2006 after he tested positive for methadone.

*496 In May 2007, Dr. Salerni cleared Lafond to return to light duty work with the following restrictions: (1) no lifting of more than twenty-five to thirty-five pounds; (2) no frequent lifting of more than five pounds; (3) no bending, kneeling, squatting or climbing; and (4) no more than occasional driving with the additional qualification that he be able to change position at will. In October 2007, Lafond took a position as a hazardous waste coordinator for another employer.

Redimix’s workers’ compensation insurance carrier denied workers’ compensation benefits to Lafond on the ground that his current disability was not causally related to the March 27, 2006 incident. In March 2007, a hearings officer found, to the contrary, that the March 27, 2006 incident caused Lafond to suffer a new injury or an aggravation of a pre-existing condition, which entitled him to temporary total disability payments retroactive to his December 29,2006 surgery. This decision was appealed to the CAB, which upheld it. Redimix moved for rehearing, which the CAB denied, and this appeal followed.

We will not disturb the CAB’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 Belair, 158 N.H. 273, 276 (2009); RSA 541:13 (2007). The appealing party has the burden of demonstrating that the CAB’s decision was erroneous. Appeal of Belair, 158 N.H. at 276.

To make out a claim for workers’ compensation, Lafond had to show that his injuries arose “out of and in the course of employment.” RSA 281-A:2, XI (Supp. 2008). “To show this, the claimant must prove by a preponderance of the evidence that [his] work-related activities probably caused or contributed to [his] disability.” Appeal of Kehoe, 141 N.H. 412, 416 (1996) (quotation omitted).

The test for causation has two prongs: a claimant must prove both legal causation and medical causation. Id. Legal causation entails a showing that the claimant’s injury is in some way work-related, while medical causation requires a showing that the injury was actually caused by the work-related event or condition. Id. Redimix challenges only the CAB’s finding of legal causation. At oral argument, Redimix conceded that the March 27, 2006 incident was the “straw that broke the camel’s back” in terms of causing Lafond’s condition as a medical fact.

“The legal causation test defines the degree of exertion that is necessary to make the injury work-connected.” Id. (quotation omitted). “The test to be used depends upon the previous health of the employee.” Id. When a claimant has a pre-existing disease or condition, he “must show by a preponderance of the evidence that [his] employment contributed some *497 thing substantial to [his] medical condition by demonstrating that the work-related conditions presented greater risks than those encountered in [his] non-employment activities.” Id. (quotation and brackets omitted). When the claimant does not have a preexisting condition, any work-related activity connected with the injury as a matter of medical fact is sufficient to show legal causation. Id. In the latter situation, “[a]ny employment contribution, even merely putting the employee in the place where the injury... occurred is enough” because “there is no competing personal risk to overcome.” 2 A. Larson, Larson’s Workers’ Compensation Law § 46.03[2], at 46-7 (2008). In the former situation, “the employment must contribute something substantial to increase the risk [of injury]” because “it must offset the causal contribution of the personal risk.” Id.

For example, suppose a claimant’s usual job does not involve lifting, but on one occasion she lifts a twenty pound weight on the job. Id. at 46-9. Suppose, as well, that the lift causes the claimant to suffer a heart attack as a medical fact. Id.

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Bluebook (online)
969 A.2d 474, 158 N.H. 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-redimix-companies-inc-nh-2009.