In re Croteau

658 A.2d 1199, 139 N.H. 534
CourtSupreme Court of New Hampshire
DecidedMay 26, 1995
DocketNo. 93-670
StatusPublished
Cited by8 cases

This text of 658 A.2d 1199 (In re Croteau) 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
In re Croteau, 658 A.2d 1199, 139 N.H. 534 (N.H. 1995).

Opinion

BROCK, C. J.

The petitioner, Robert Croteau, seeks a writ of certiorari to review the decision of the New Hampshire Department of Labor granting in part and denying in part his claim for a permanent partial impairment award. We affirm in part, vacate in part, and remand.

The petitioner fell from a scaffolding while working in November 1988. He currently receives temporary total disability benefits. The petitioner sought a permanent impairment award based on injuries to his shoulders, wrists, and neck pursuant to RSA 281-A:32 (Supp. 1994). After a hearing was held at the department of labor, the hearing officer granted the petitioner’s claim for a permanent impairment award for his right shoulder, but denied the petitioner’s remaining claims for permanent impairment awards based on injuries to his left shoulder and neck, and on the bilateral carpal tunnel syndrome (CTS) in his wrists, finding them not to be causally connected to his work-related injury.

The petitioner filed a timely motion for reconsideration, which was denied. This petition for certiorari followed. Because permanent impairment decisions of the department of labor before January 1, 1994, were final, RSA 281-A:32, XII (Supp. 1993), amended by Laws [536]*5361993, ch. 226, certiorari is the petitioner’s proper remedy. Petition of Gunzel, 124 N.H. 495, 498, 471 A.2d 1189, 1190 (1984).

We review the department’s decision to determine “whether the commissioner acted illegally with respect to jurisdiction, authority or observance of the law, whereby he arrived at a conclusion which could not legally or reasonably be made, or .. . abused his discretion or acted arbitrarily, unreasonably, or capriciously.” Petition of Gunzel, 124 N.H. at 498, 471 A.2d at 1190 (quotation omitted). We will not reverse a hearing officer’s findings of fact or decisions based upon such findings if they are supported by competent evidence in the record, “even if contrary testimony in the record would support another result.” Petition of Blake, 137 N.H. 43, 49, 623 A.2d 741, 745 (1993).

In September 1988, the petitioner first was treated for symptoms of CTS in both wrists; his symptoms were more severe in his right wrist. In November 1988, the petitioner fell approximately eight feet from scaffolding at a job site, landing face down on the ground. He immediately reported pain in his right shoulder and was seen in the emergency room of a local hospital.

The petitioner had suffered no difficulty with his right or left shoulder prior to this accident. He underwent surgery for a torn rotator cuff in his right shoulder in January 1989. There are several references to complaints indicating carpal tunnel problems in his physician’s treatment notes before and after the surgery. The petitioner had another surgical procedure on his right shoulder in September 1989. During physical therapy for his right shoulder injury and CTS, the petitioner injured his left shoulder and has complained of pain and limited range of movement in that shoulder since that time.

The petitioner’s complaint of neck pain is first reflected in medical records in 1991, although he contends that he has had symptoms of a cervical injury since his fall in 1988. He has been diagnosed with a cervical prolapsed disc.

The department concluded that the petitioner was entitled to a permanent impairment award based on injury to his right shoulder only. The hearing officer stated that the CTS in the petitioner’s right wrist “pre-existed the injury in question” and that the syndrome in his left wrist “developed from favoring the right hand, and as the right carpal tunnel symptoms are not related to the injury of November 28, 1988, the symptoms in the left hand cannot be so[] related.” The hearing officer determined that the petitioner’s neck injury was “a degenerative condition, with little evidence to connect this condition with a single traumatic incident” and determined that the cervical complaints could not “be related to the incident of November 28, 1988.” Finally, the hearing officer concluded that the injury the petitioner sustained to his left shoulder during the course of physical [537]*537therapy for his right shoulder had not reached any point of maximum medical improvement, and therefore declined to make a permanent impairment determination on the basis of that injury.

I. Right Shoulder

The hearing officer found the testimony of one particular examining physician, Dr. Cusson, to be “realistic and convincing” and found that the petitioner suffered a sixteen percent permanent impairment to his right shoulder based upon Dr. Cusson’s evaluation. The petitioner argues that the hearing officer acted unreasonably and arbitrarily when he chose to rely on these findings. We disagree. Other examining physicians made similar recommendations regarding the petitioner’s right shoulder. The hearing officer’s decision is supported by competent evidence in the record, even though contrary testimony in the record might support another result. Petition of Blake, 137 N.H. at 49, 623 A.2d at 745. Accordingly, we affirm that portion of the department’s decision awarding a sixteen percent permanent impairment based on the petitioner’s right shoulder injury.

II. Left Shoulder

Several physicians who had examined the petitioner noted that they were unable to assign any permanent impairment to the left shoulder. The hearing officer determined that the left shoulder injury sustained during the course of treatment for the right shoulder injury has yet to reach a maximum medical improvement, and therefore declined to make a permanent impairment award based on that injury. Because this conclusion also is supported by competent evidence in the record, we affirm this part of the department’s decision. See id. The petitioner may request another hearing after his left shoulder has reached a point of maximum medical improvement. See Petition of Markievitz, 135 N.H. 455, 457-58, 606 A.2d 800, 802 (1992).

III. Carpal Tunnel Syndrome

The hearing officer concluded that the petitioner’s CTS in his right hand predated the traumatic fall in 1988 and, therefore, was not properly the subject of a permanent impairment award. The hearing officer then stated that the CTS in the petitioner’s left hand “developed from favoring the right hand, and as the right carpal tunnel symptoms are not related to the injury of November 28, 1988, the symptoms in the left hand cannot be so[ ] related.”

The hearing officer was primarily concerned with the effect of the 1988 fall, rather than with an overall evaluation of the petitioner’s impairment. In his denial of the petitioner’s motion for reconsideration, the officer stated that the hearing “was based upon [538]*538injuries specifically suffered in a slip and fall accident on November 28, 1988” and that “an award under RSA 281-A:32 must, by all logic, relate to a specific, work-related condition, and not any degenerative condition which the claimant may have developed in his body.”

An injury for purposes of our workers’ compensation scheme is an “accidental injury . . . arising out of and in the course of employment.” RSA 281-A:2, XI (Supp. 1994).

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Bluebook (online)
658 A.2d 1199, 139 N.H. 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-croteau-nh-1995.