Appeal of Caitlyn Wittenauer

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Compensation Appeals Board
No. 2021-0369

APPEAL OF CAITLYN WITTENAUER
(New Hampshire Compensation Appeals Board)

Argued: April 14, 2022
Opinion Issued: September 7, 2022

Normandin, Cheney & O’Neil, PLLC, of Laconia (James F. LaFrance on
the brief and orally), for the claimant.

Mullen & McGourty, P.C., of Salem (Matthew J. Solomon and Craig A.
Russo on the brief, and Matthew J. Solomon orally), for Nike, Inc.

MACDONALD, C.J. The claimant, Caitlyn Wittenauer, appeals the
decision of the New Hampshire Compensation Appeals Board (CAB) denying
her workers’ compensation benefits. We affirm.

The following facts are supported by the record. On August 15, 2019,
the claimant injured her left shoulder lifting boxes at her job working for the
respondent, Nike, Inc. As a result of the injury, she experienced pain in her
shoulder and numbness into her left hand. An MRI disclosed that her “left
shoulder was dislocated, with the ball joint out of place.” She received
corrective surgery on December 17, 2019, followed by months of physical
therapy treatments. On April 21, 2020, the claimant’s treating physician
approved her return to full-time work with restrictions on lifting. She returned
to work at Nike in May. The claimant received temporary total disability
benefits beginning October 16, 2019, and ending May 4, 2020.

On September 3, 2020, the claimant reported to her treating physician
that her shoulder was feeling stiff and she was experiencing pain “when she
tries to do anything overhead.” He limited her work to five hours a day with no
other restrictions. On September 25, the claimant complained of pain in the
left side of her neck, and her treating physician took her out of work. In his
follow-up note dated October 8, the physician reported that “[e]xamination of
the shoulder . . . demonstrate[d] overall good stability and range of motion.
[The claimant] really does not appear to have any gross instability of the
shoulder, possibly some mild instability. Most of her pain is really periscapular
going up into her neck.” On October 22, the physician concluded that “[m]ost
of the problem really appears to be in her neck and around the periscapular
and trapezial musculature. At this point, the shoulder itself does not seem too
bad.” On November 19, the physician reported that his examination of the
claimant did not demonstrate “any overt shoulder instability” and noted that
the shoulder was “really significantly better since surgery and really no
evidence of any gross instability.”

The claimant sought temporary partial disability benefits for the period
September 4, 2020 to September 25, 2020, and temporary total disability
benefits beginning September 26, 2020. Nike’s insurance carrier denied
benefits on grounds that the “9/25/2020 medical- Neck is not compensable to”
the August 15, 2019 shoulder injury, as there was no causal relationship to
employment.

The claimant challenged the carrier’s denial by requesting a hearing
before the Department of Labor. Following a hearing on December 9, 2020, the
hearing officer determined that the claimant did not meet her burden of
proving that her “symptoms after September 25, 2020, are more probably than
not related to the initial work injury.” The hearing officer noted that after
determining in September 2020 that the claimant was totally disabled again,
the treating physician “recorded her problem as pain in the left side of her neck
and upper back.” However, the hearing officer noted, the Workers’
Compensation Medical Forms (WCMF) completed by the treating physician
“[did] not contain any reference to these new symptoms.” Accordingly, the
hearing officer found that “the left sided neck and upper back pain are new
symptoms for which she did not treat from the date of injury” in August 2019
until September 25, 2020. The hearing officer concluded that “[w]ithout a more
detailed explanation and opinion from the treating physician, . . . the claimant
failed to meet her burden of proof.”

The claimant appealed to the CAB and a de novo hearing was held on
May 13, 2021. The claimant was the only witness to testify. Prior to the
hearing, the claimant’s treating physician provided a written narrative to the

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claimant’s attorney dated March 30, 2021. The narrative stated that, while the
claimant sustained a work-related injury on August 15, 2019, which resulted
in “shoulder instability,” the injury “also resulted in an injury to her cervical
spine in addition to resulting in a probable brachial plexopathy as a traction
type injury that has resulted in [her] ongoing symptoms consistent with
neurogenic type pain” and that her “ongoing neurogenic type pain as a result of
the neck injury and probable brachial plexopathy is causally related to the”
August 15, 2019 accident.

The CAB ruled that the claimant did not meet her burden of proving by a
preponderance of the evidence “that the medical treatments starting on
9/3/2020 and out of work order by [the treating physician] [was] causally
related to the work injury on 8/15/2019.” The CAB found that the physician
“ha[d] not provided any medical explanation for the new mention of a ‘neck
injury’ and related ‘probable brachial plexopathy’ when neither had been part
of the medical record before the 3/30/2021 narrative.” As the CAB explained,

The notes from the provider and Claimant’s testimony provide no
specific information of a new work injury or an aggravation of the
surgically repaired left shoulder. Worker’s compensation panels
are cautioned to leave complex medical issues to the competent
medical personnel. Expert testimony is required whenever the
matter to be determined is so distinctly related to some science,
profession, business or occupation as to be beyond the ken of the
average layman. A sound medical opinion will be based on the
adequate facts from the record that, would here allow a connection
from the first injury and treatments to the second, similar painful
treated area. Here, there is no adequate connection between the
two conditions.

(Quotation and citation omitted.) The CAB denied the claimant’s request for
reconsideration. This appeal followed.

On appeal, the claimant argues that the CAB erred: (1) by placing a
burden upon her to demonstrate another work incident occurring between her
return to work in May 2020 and her second onset of disability in September
2020; and (2) in failing to analyze and make findings as to whether her
disability in September 2020 was due at least in part to the work injury she
suffered in August 2019.

We will overturn the CAB’s decision only for errors of law, or if we are
satisfied by a clear preponderance of the evidence before us that the decision is
unjust or unreasonable. Appeal of Dean Foods, 158 N.H. 467, 471 (2009). The
CAB’s factual findings are prima facie lawful and reasonable. Id.; see RSA
541:13 (2021). In reviewing the CAB’s findings, our task is not to determine
whether we would have found differently than did the board, or to reweigh the

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evidence, but rather to determine whether the findings are supported by
competent evidence in the record. Appeal of Dean Foods, 158 N.H. at 474. As
the appealing party, the claimant bears the burden of proof. Id. at 471.

In a workers’ compensation case, the claimant must prove both legal and
medical causation by a preponderance of the evidence. Appeal of Newcomb,
141 N.H. 664, 666 (1997). Proof of legal causation requires demonstrating that
the injury is work-connected. Id. at 667. To prove medical causation, the
claimant must show that the work-related activities either caused or
contributed to her disability as a matter of medical fact. Appeal of Briggs, 138
N.H. 623, 629 (1994).

Medical causation is a matter properly within the province of medical
experts, and the CAB is required to base its findings on this issue upon the
medical evidence rather than solely upon its own lay opinion. Appeal of
Demeritt, 142 N.H. 807, 810 (1998). In accord with that requirement, the CAB
reviewed the medical evidence, including the WCMFs and the treating
physician’s office notes. After doing so, the CAB determined that “[w]hile [the
treating physician’s] narrative certainly described the initial injury and
treatment with a strong medical foundation, he ha[d] not provided any medical
explanation for the new mention of a ‘neck injury’ and related ‘probable
brachial plexopathy’ when neither had been part of the medical record before
the 3/30/2021 narrative.”

The CAB is not bound to accept any uncontradicted evidence, even
expert testimony, Appeal of Lambrou, 136 N.H. 18, 20 (1992), unless “the
complexity of the . . . issues involved, the unequivocal nature of the testimony,
and the absence of any articulated reason to discount it” compel its
acceptance, Town of Hudson v. Wynott, 128 N.H. 478, 486 (1986). If the CAB
“declines to accept uncontroverted evidence, it must state its reasons for doing
so.” Appeal of Lambrou, 136 N.H. at 20. Here, the CAB did not accept the
treating physician’s statement that in August 2019 when the claimant injured
her shoulder at work, she also injured her cervical spine and neck, because the
claimant’s medical record never mentioned either injury.

Our review of the record supports the CAB’s determination. The initial
WCMF dated August 21, 2019, states the diagnosis of the claimant’s work
injury as “Pain in left shoulder, Left Shoulder; biceps tendonitis.” The
subsequent WCMFs contain the same diagnosis, and the physician’s notes
record the claimant’s “Chief Complaint” as “follow up of left shoulder.” On this
record it was not unreasonable for the CAB to determine that because there
was no “medical explanation” for the treating physician’s “new mention of a
‘neck injury’ and related ‘probable brachial plexopathy’ when neither had been
part of the medical record before the 3/30/2021 narrative,” the medical
causation element “ha[d] not been met by a preponderance of the medical
evidence.”

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 Accordingly, we need not address the claimant’s argument that, to prove
legal causation, the CAB improperly applied a burden of proof requiring her to
establish a new workplace injury. See Appeal of Newcomb, 141 N.H. at 666
(explaining that the claimant must prove both legal and medical causation).

Affirmed.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

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