Appeal of Peter Southworth

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0544, Appeal of Peter Southworth, the
court on January 30, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal and has determined to resolve this case by way of this order. See
Sup. Ct. R. 20(2). The claimant, Peter Southworth, appeals an order of the New
Hampshire Compensation Appeals Board (CAB) denying his claim for workers’
compensation benefits. We vacate and remand.

The record includes the following facts. The claimant was hired by
Proctor Academy as an English teacher in 1985. In September 2015, he was a
faculty supervisor for a multi-day school camping trip into the White
Mountains. On or about September 4, during the trip, either “an insect bite or
a slip with a cut leg occurred,” resulting in a small area at the back of his right
thigh that, after his return from the camping trip, appeared to be inflamed or
cut. On September 28, Dr. Richer, the claimant’s primary care physician,
treated the claimant for a skin infection by opening and cleaning his wound on
his right thigh. On September 29, Dr. Bears saw the claimant for further
treatment – lab cultures collected from his right thigh lesion confirmed the
presence of Methicillin Resistant Staph Aureus (MRSA). Thereafter, despite
treatment, the claimant’s condition worsened. In October, the claimant
collapsed and went into a coma and was hospitalized at Dartmouth Hitchcock
Hospital for about a month. There he underwent several surgeries to drain a
MRSA epidural abscess that extended from his cervical spine to his lumbar
area.

The record includes a report from Dr. Richer explaining that while the
claimant was at Dartmouth Hitchcock, “an epidural abscess was found.
According to the discharge summary, this was also a methicillin-resistant
Staph aureus infection. It seems more probable than not that the source of the
epidural infection was from the initial skin infection of Mr. Southworth’s leg
just a few weeks prior.”

The claimant’s claims for workers’ compensation benefits were initially
denied by Proctor Academy’s insurance carrier, MEMIC Indemnity Company.
The claimant requested a hearing before the Department of Labor. The
Department ruled that the claimant was entitled to benefits. The insurer
appealed to the CAB. Following a hearing, the CAB stated:

The lay witnesses in this case have supported the general possibility of
the infection arising from various general sources (DHHS and OSHA
 documents). A brief summary of Claimant’s closing argument is the
allegation that because the general sources of MRSA are generally
present at the boarding school and because Claimant lives near and
attends activities at the boarding school, therefore the conclusion must
be that the school exposure must be work-related. The Panel finds no
medical expert that takes those general possibilities, with the facts from
Claimant, and finds medical causation by a preponderance of the
evidence.

The CAB concluded that the claimant “has not met his burden under RSA 281-
A:2, by a preponderance of the evidence that his regular job duties put him in
the position of and in fact did contract a work infection from MRSA on or about
9/4/2015.”

On appeal to this court, the claimant argues, inter alia, that the CAB
“erred when it concluded that [he] failed to demonstrate as a matter of law that
his MRSA injury was caused by his employment, thereby erroneously denying
his claim.”

We begin by noting that the CAB stated that it “clearly understood that
an insect bite or a slip with a cut leg occurred on [the claimant’s]
camping/hiking trip with students in the White Mountains. Clearly this was a
work-related activity.” (Bolding omitted.)1 The CAB further ruled, however,
that the claimant failed to prove that he “in fact did contract a work infection
from MRSA on or about 9/4/2015.” As the insurance carrier explains in its
brief, the CAB discounted Dr. Richer’s opinion because “Dr. Richer does not
opine that [the claimant] actually contracted MRSA at work.” (Emphasis
added.) Similarly, the carrier notes that its retained medical expert, Dr.
Crossley, opined that MRSA

is often community acquired (i.e. not acquired in a hospital or healthcare
facility) . . . . It is impossible to determine – or even to speculate about –
the relationship of acquisition of this organism to his employment. . . .
There is no way to sort this out and there is no medical literature to help
in predicting whether family or workplace would be the more likely
source of the organism.

The carrier states that the CAB “ultimately accepted Dr. Crossley’s medical
opinion addressing whether [the claimant’s] MRSA was contracted at work in
its decision.” (Emphasis added.)

It is well-established that an employer remains liable for subsequent
injuries that are the “direct and natural result” of a prior, work-related injury.

1 We further note that counsel for MEMIC stated at oral argument that it is undisputed that

the claimant suffered a leg wound or insect bite that was work-related.
See Appeal of Pelmac Indus., 174 N.H. 528, 541 (2021); see also Petition of
Croteau, 139 N.H. 534, 539 (1995) (impairment is compensable if it is the
direct and natural result of a compensable primary injury); 1 Lex K. Larson &
Thomas A. Robinson, Larson’s Workers’ Compensation Law § 10.01
(LexisNexis 2021) (“all the medical consequences and sequel[ae] that flow from
the primary injury are compensable”). Thus, it was not necessarily the
claimant’s burden to prove that he “actually contracted MRSA at work,” as
contended by the carrier. It being undisputed that the claimant suffered a
work-related injury to his thigh, it remains to be determined whether the MRSA
infection was a direct and natural result of that injury. Thus, it is not
dispositive that Dr. Richer did not opine that the claimant actually contracted
MRSA at work, or that Dr. Crossley opined that one cannot determine whether
family or workplace was the more likely source of the MRSA organism.

Our conclusion is consistent with rulings elsewhere. In Aqua Leisure
Pools, Spas & Patios, Inc. v. Greene, No. 0620-20-2, 2020 WL 6478230 at *1
(Va. Ct. App. Nov. 4, 2020) (unpublished opinion), Greene was working for
Aqua Leisure as a pool liner installer. While at work, he was bitten by a dog.
Greene, 2020 WL 6478230 at *1. The bite wound on his ankle eventually
developed MRSA. Id. at *2. In determining whether Greene was entitled to
workers’ compensation benefits, the court applied the “compensable
consequences doctrine,” which permits recovery for “all the medical
consequences and sequelae that flow from the primary injury, so long as a
direct, causal link connects the primary compensable injury with the additional
injury for which the claimant seeks compensation.” Id. at *5. Thus,
compensation would be warranted if the MRSA infection was causally linked to
the dog bite. See id.; cf. Cole v. United Parcel Serv., No. COA14-17, 2014 WL
4292054 at *6 (N.C. Ct. App. Sept. 2, 2014) (unpublished disposition) (where
injury to employee’s back from lifting a dolly predisposed employee to getting
an infection in that area, the infection was a direct and natural result of the
physical injury); West v. McBane-Brown, Inc., No. COA03-15, 2004 WL 192993
at *5 (N.C. Ct. App. Feb. 3, 2004) (unpublished disposition) (where employee
scraped elbow at work, allowing staph infection to enter his body and spread to
his knee, staph infection was “a natural and unavoidable consequence” of the
scraped elbow injury); Wilkins v. Piramal Glass USA, Inc., 540 S.W.3d 891, 898
(Mo. Ct. App. 2018) (where claimant suffered work-related calf muscle tear,
treatment for subsequent staph infection that “flowed from Claimant’s
compensable injury” was compensable).

In Streit v. Streit Construction, Inc., No. 19-0615, 2020 WL 6482729
(Iowa Ct. App. Nov. 4, 2020) (unpublished opinion), the employee alleged that
he suffered cuts and scrapes while doing construction work, which resulted in
contracting a MRSA infection. Streit, 2020 WL 6482729 at *1. His claim for
workers’ compensation benefits was denied by a commissioner because there
was no evidence that he “came in contact with MRSA at work.” Id. at *2. On
appeal, however, the court reversed, explaining: “Finding that the MRSA
exposure did not occur at the job site, we still have no conclusive answer from
the commissioner about whether [the employee] proved that the cuts and
scrapes occurred at the worksite as a work injury and whether the MRSA is a
sequela of that work injury.” Id. at *3. Accordingly, the case was reversed and
remanded for a determination as to whether the employee proved that he
“suffered cuts or scrapes at work” and whether “the MRSA infection is a
sequela of cuts or scrapes he suffered at work.” Id.

We reach a similar conclusion here. We vacate the CAB’s decision, and
remand for further proceedings, including consideration of whether the MRSA
infection and medical consequences were the direct and natural result of the
claimant’s work-related injury to his leg.

Vacated and remanded.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred; HICKS, J., sat for oral argument but did not participate in the
final vote, see N.H. CONST. pt. II, art. 78.

Timothy A. Gudas,
Clerk