Compensation Appeals Board

Jonathan P Killeen
Shareholder at Boyle, Shaughnessy Law PC in Manchester, NH

No. 2019- 0464
August 12, 2020
Reversed and remanded

  • Whether the Compensation Appeals Board improperly considered therapists’ failure to submit a Workers’ Compensation Medical Form within 10 days of the first treatment as part of its determination that the petitioner failed to establish that treatment was reasonable, necessary, and related to workplace injury.

In May 2011 the petitioner injured herself working as a nurse for the respondent, Elliot Hospital, while transitioning a patient from a chair to a bed. The petitioner was subsequently diagnosed with a trapezius strain and from 2012 to 2016 consistently treated with opioids to control her pain. Beginning in 2016, the petitioner’s treating physician in New Hampshire pre- scribed chiropractic treatments and mas- sage therapy. The petitioner then moved to New York and sought treatment from an orthopedic pain specialist who ordered her to continue massage therapy. The petition- er received massage therapy while in New York from two licensed massage therapists from May 2017 to January 2018. The petitioner paid out of pocket for her treatment. Prior to the start of the petitioner’s treatments in New York, the respondent had covered the costs of her massage therapy.

The respondent submitted the bills she incurred for the New York massage treatment, which were denied. The petitioner requested a hearing with the New Hamp- shire Department of Labor which, after a hearing, denied the petitioner’s request for reimbursement. The petitioner then appealed the hearing officer’s decision to the Compensation Appeals Board (“CAB”). The CAB afforded substantial weight to the petitioner’s New York orthopedic pain specialist’s opinion that the massage treatments were reasonable and necessary in managing the petitioner’s work related in- jury. The CAB also found the petitioner’s New York orthopedic pain specialist’s opinions to be more reasonable and sounder than the respondent’s doctor’s opinions. Nevertheless, the CAB concluded that the petitioner did not meet her burden of proof that the medical treatments were reason- able, medically necessary, and causally related to the workplace injury. In doing so, the CAB noted that the New York massage therapists did not furnish a Workers’ Compensation Medical Form within 10 days of the first treatment as required by RSA 281- A:23, V(c). The CAB denied the petitioner’s request for a rehearing. The petitioner then filed an appeal to the New Hampshire Supreme Court.

On appeal, the Supreme Court found that the CAB erroneously considered non- compliance with RSA 281-A:23, V(c) in its determination of whether the petitioner’s New York treatment was reasonable, necessary, and related to her workplace injury. The Supreme Court reasoned that failure to meet the requirements of RSA 281-A:23,V(c) is irrelevant to such a de- termination. Rather, the test is whether  a petitioner presents objective evidence showing, that at the time the  treatment was ordered, it was reasonable for the petitioner to seek further treatment. Moreover, given the CBS’s factual findings and credibility determinations regarding the petitioner and her New York physician, there was no competent evidence in the record upon which to affirm the CAB’s decision that the petitioner did not meet her burden. Finally, the Supreme Court rejected the respondent’s argument that the petitioner was barred on a stand-alone basis from being reimbursed for the New York treatment because the New York massage therapists failed to comply with RSA 281-A:23 ,V(c). Rather, the Court ruled that RSA 281-A:23,V(c), which states that “there shall be no reimbursement for services rendered, un- less the health care provider or health care facility giving medical, surgical, or other remedial treatment furnishes the report required in subparagraph (b) to the employer, insurance company, or claims adjusting company within 10 days of the first treatment,” applies only to health care providers and facilities seeking reimbursement for services rendered—not to a patient- employee who is seeking reimbursement of payments she made out-of-pocket to providers for treatment received.

Mark D. Wiseman, on the brief, and Callan E. Sullivan, orally, Cleveland, Waters and Bass, P.A., of Concord, for the petitioner. Eric G. Falkenham, on the brief and orally, Devine, Millimet & Branch, Professional Association, of Manchester, for the respondent.