Appeal of New Hampshire Department of Corrections & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0587, Appeal of New Hampshire
Department of Corrections & a., the court on December 13,
2023, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
petitioners, the New Hampshire Department of Corrections (DOC) and DOC’s
third-party administrator, Constitution State Services, appeal a decision of the
New Hampshire Compensation Appeals Board (CAB) upholding the decision of
the respondent, the coordinator of the State Special Fund for Second Injuries
(Second Injury Fund), declining to reimburse the petitioners for benefits paid to
the claimant. See RSA 281-A:54, I (2023). The petitioners argue that the CAB
erred by: (1) applying the wrong standard and requiring that the petitioners
prove that the claimant suffered a second injury, rather than a “subsequent
disability by injury”; (2) failing to provide findings regarding the issue of a
greater combined disability and, instead, relying on the opinions of doctors who
opined on the uncontested issue of causation; and (3) failing to consider
another doctor’s opinion on the issue of greater combined disability. The
petitioners also argue that the CAB’s finding of an absence of a “subsequent
disability by injury” was unsupported by the evidence. We conclude that the
CAB applied the incorrect standard as set forth in RSA 281-A:54, I, and Appeal
of CNA Insurance Cos., 143 N.H. 270 (1998), and accordingly, we vacate the
CAB’s ruling and remand.

The following facts are agreed upon by the parties or otherwise relate to
the contents of the documents in the certified record before us. On May 8,
2019, the claimant, who was employed by DOC, suffered an accidental head
injury while attending a work-related barbeque. Emergency responders
transported the claimant by ambulance to the hospital, where the emergency
room doctor diagnosed her with an unspecified head injury. Later that month,
the claimant’s primary care provider (PCP) diagnosed the claimant with a
concussion and whiplash. The claimant’s PCP noted that the claimant could
not return to work until she was re-evaluated. The claimant began weekly
follow-up visits with her PCP, and in June, she resumed working at DOC on a
part-time basis. In July, the claimant experienced persistent concussion
symptoms; her PCP diagnosed her with post-concussion syndrome and referred
her for a neurology evaluation. From August to September, the claimant’s PCP
gradually increased the claimant’s work hours. In September, the claimant
met with a neurologist, Dr. Engstrand, who confirmed the post-concussion
syndrome diagnosis, noting light sensitivity, headache, personality change,
cognitive changes, and poor short-term memory. In October, the claimant’s
PCP noted that the claimant’s prognosis was “good” and released the claimant
to full-time work duty. The claimant followed up with Engstrand in November,
who again noted headaches and cognitive changes. In December, the
claimant’s condition worsened, and her PCP reduced the claimant’s hours to
half-time. In early January 2020, Engstrand placed the claimant out of work.

Prior to the dispute in this case, the claimant and DOC litigated a
causation dispute related to the claimant’s underlying workers’ compensation
claim. As part of that dispute, Engstrand and the DOC’s medical expert, Dr.
Saris, filed opposing reports. In his March 2020 report, Saris concluded that
the claimant’s ongoing symptoms were no longer related to her May 2019
injury. In her April 2020 report, Engstrand disagreed and concluded that the
claimant’s ongoing symptoms were caused by her May 2019 injury. The CAB
considered these reports when determining whether the claimant incurred a
“subsequent disability by injury” pursuant to RSA 281-A:54, I.

In August 2021, the third-party administrator for DOC applied for
reimbursement from the Second Injury Fund pursuant to RSA 281-A:54, I,
contending that the claimant suffered a “subsequent disability by injury” in
January 2020. This application included an employer statement, a schedule of
payments issued, and a medical report entitled “Second Injury Fund
Certification by Physician,” completed by Dr. Bourne, DOC’s medical expert. In
his report, Bourne opined that the claimant incurred two distinct impairments:
(1) head injury with mild concussion and post-concussion syndrome; and (2)
adjustment disorder with anxiety and depression. He also opined that the
“combination of the two impairments cause[d] a substantially greater disability
than would have been caused by the subsequent injury alone.”

In October 2021, the Second Injury Fund denied the application, stating
that:

The Fund disagrees with [DOC and its third-party administrator’s]
position that [the claimant] had a subsequent disability by injury
on 1/3/2020. The documentation submitted supports an ongoing
issue that arose out of the 5/8/19 injury and doesn’t support that
a subsequent disability by injury that arose out of and in the
course of employment occurred.
The Fund disagrees with [DOC and its third-party administrator’s]
position that [the claimant’s] subsequent disability by injury
resulted in a compensation liability for a disability that is greater
by reason of the combined effects of the preexisting impairment
than that which would have resulted from the subsequent injury
alone.

2
 DOC and its third-party administrator appealed the denial to the CAB.
The CAB considered two issues: “(1) [w]as there a subsequent disability by
injury on January 3, 2020, or not; and (2) [w]hether there was compensation
liability for a disability that is greater by reason of the combined effects of the
pre-existing impairment than that which would have resulted from the
subsequent injury alone.”1 After a hearing, the CAB answered both questions
in the negative and denied the application for reimbursement from the Second
Injury Fund. In its decision, the CAB explained that:

We find that the medical opinions of Dr. Engstrand as being much
more reasonable, logical and persuasive than those of Dr. Saris,
the IME doctor, in determining whether there was a second injury
or disability from an injury after May 8, 2019.

On April 29, 2020 Dr. Engstrand wrote that she believed
that there was only one disability from an injury (May 8, 2019).

The CAB denied DOC’s motion for rehearing. This appeal followed.

Our standard of review of CAB decisions is established by statute.
Appeal of The Lawson Group, 175 N.H. 397, 399 (2022); see RSA 541:13
(2021). All findings of the CAB upon all questions of fact properly before it are
deemed prima facie lawful and reasonable. Appeal of The Lawson Group, 175
N.H. at 399; RSA 541:13. Accordingly, our review of the CAB’s factual findings
is deferential. Appeal of The Lawson Group, 175 N.H. at 399. As the appealing
parties, the petitioners have the burden of demonstrating that the CAB’s
decision is reversible. See id. 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

1 Additionally, to qualify for reimbursement from the Second Injury Fund, the employee must have

a “permanent physical or mental impairment, as defined in RSA 281-A:2, XIV,” and the employer
must have “knowledge of the employee’s permanent physical or mental impairment at the time
that the employee was hired or at the time that the employee was retained in employment after
the employer acquired such knowledge.” RSA 281-A:54, I & III (2023). The Second Injury Fund,
in its denial letter, only addressed two elements: (1) whether the claimant “had a subsequent
disability by injury”; and (2) whether the claimant’s “subsequent disability by injury resulted in a
compensation liability for a disability that is greater by reason of the combined effects of the
preexisting impairment than that which would have resulted from the subsequent injury
alone.” See RSA 281-A:54, I. DOC and its third-party administrator filed a motion in limine with
the CAB requesting that the CAB limit the issues on appeal to these two issues. Over the Second
Injury Fund’s objections, the CAB granted the motion, explaining that the Second Injury Fund
“may contest any elements of the carriers’ claims that it has set out in its denial letters, but is
precluded from contesting any different elements of the carriers’ respective claims for
reimbursement that are not set out in the [denial letters].” Accordingly, the CAB did not consider
whether the claimant had a “permanent physical or mental impairment” or whether DOC had
knowledge of such impairment, and thus, such questions are not before us on appeal.

3
be unjust or unreasonable. Id.; see RSA 541:13. We review the CAB’s legal
rulings de novo. Appeal of Doody, 172 N.H. 802, 805 (2020).

For context, we begin by providing a brief overview of the Second
Injury Fund. “The second injury fund was created to encourage
employers to hire or retain employees with permanent physical or mental
impairments of any origin by reducing the employer’s liability for
workers’ compensation claims.” Appeal of The Lawson Group, 175 N.H.
at 400 (quotation omitted).

The implementing statute provides:

If an employee who has a permanent physical or mental
impairment, as defined in RSA 281-A:2, XIV, from any cause or
origin incurs a subsequent disability by injury arising out of and in
the course of such employee’s employment on or after July 1,
1975, which results in compensation liability for a disability that is
greater by reason of the combined effects of the preexisting
impairment than that which would have resulted from the
subsequent injury alone, the employer or the employer’s insurance
carrier shall in the first instance pay all awards of compensation
provided by this chapter. However, the commissioner shall
reimburse such employer or insurance carrier from the special
fund created by RSA 281-A:55 for all compensation payments
subsequent to those payable for the first 104 weeks of disability.
Provided, however, that prior to the first 104 weeks of disability,
the employer shall be reimbursed 50 percent after the first $10,000
paid on all compensation for temporary total, temporary partial,
permanent partial, permanent total, medical, or rehabilitation
benefits for all injuries occurring on or after January 1, 1991.

RSA 281-A:54, I. Thus, to qualify for reimbursement from the Second
Injury Fund, a carrier must pay workers’ compensation benefits to (1) an
employee with a permanent physical or mental impairment from any
cause or origin who (2) incurs a subsequent disability by injury (3)
arising out of and in the course of employment that (4) results in a
greater workers’ compensation liability by reason of the combined effects
of the preexisting impairment than would have resulted from the
subsequent injury alone. Appeal of The Lawson Group, 175 N.H. at 401;
see also RSA 281-A:54, I; Appeal of CNA Ins. Cos., 143 N.H. at 273
(interpreting prior version of statute).

RSA 281-A:54, I, discusses “subsequent disability by injury” in general
terms and “does not distinguish among causes of future impairments.” Appeal
of CNA Ins. Cos., 143 N.H. at 273. Thus, the statute does not preclude

4
recovery from the Second Injury Fund if the “subsequent disability by injury” is
either an aggravation or recurrence of the original disability. Id. Had the
legislature intended to limit reimbursement by the Second Injury Fund to
particular causes of disability, it could have expressly provided such
limitations in the statute. Id.

On appeal, the petitioners argue that the CAB erred by applying the
incorrect standard by requiring DOC to prove that the claimant suffered a
second injury rather than a “subsequent disability by injury.” The Second
Injury Fund agrees that the standard set forth in RSA 281-A:54, I, does not
require a second injury but, rather, a “subsequent disability by injury,”
explaining that “[a]lthough reimbursement from the fund does not require that
the injured employee suffered a new and discrete injury, it does require a
subsequent disability.” The Second Injury Fund maintains that the CAB
applied the correct standard, arguing that “[i]n its decision, it is clear that the
CAB reviewed the evidence to determine whether the employee suffered a
subsequent disability not a second injury.” Specifically, the Second Injury
Fund argues that the claimant’s “second disability was not different than the
first . . . [n]or was the second period of disability an aggravation or recurrence
of the disability.” Instead, the Second Injury Fund asserts that the CAB
correctly ruled that the claimant’s “post-concussion syndrome was one, on-
going, continuous disability.” We conclude that RSA 281-A:54, I, and our
holding in Appeal of CNA Insurance Cos. require DOC to prove a “subsequent
disability by injury” rather than a second injury. We also agree with the
petitioners that the CAB applied the incorrect standard.

In Appeal of CNA Insurance Cos., we considered an earlier version of the
Second Injury Fund statute that contained nearly identical language to RSA
281-A:54, I. See Appeal of CNA Ins. Cos., 143 N.H. at 272. In that case, an
employee injured his knee while at work. Id. at 270. After he underwent
surgery, the employee returned to work. Id. at 270-71. Weeks later, while at
work, the employee fell when the same knee gave out, causing the employee to
injure his back. Id. at 271. His employer’s workers’ compensation carrier
applied for reimbursement from the Second Injury Fund. Id. The Second
Injury Fund denied the reimbursement, finding that the employee “did not
sustain a new work injury . . . but that it arose out of the prior work injury.”
Id. (quotation omitted).

The CAB agreed with the Second Injury Fund, explaining that “the
claimant, although injured, did not suffer a second work related injury arising
out of and in the course of employment.” Id. (quotation omitted). Our review of
the record on appeal revealed that the medical records “did not indicate
whether [the employee’s] permanent impairment resulted from the knee injury,
from the back injury, or from the combined effects of the two injuries.” Id. at
274. Rather, the medical evidence indicated that the employee’s condition
posed a “complicated problem,” because it was “difficult to sift out the two

5
[injuries]” because both injuries were “related to his [initial knee] injury.” Id. at
275 (quotation omitted). Accordingly, we reversed the CAB’s decision, holding
that the Second Injury Fund statute “does not require that the injured
employee suffer a new and discrete injury before reimbursement from the fund
becomes possible.” Id. at 274.

Here, the CAB found that the claimant did not suffer a disability by
injury in January 2020. In reaching this decision, the CAB first found that the
claimant suffered a “significant injury” from the May 8, 2019 accident, citing a
post-accident report from the claimant’s PCP. The CAB then concluded that
there was only one disability from injury, quoting Engstrand’s 2020 report that
stated “all of [the claimant’s] symptoms began after the trauma of 2019.” By
crediting Engstrand’s report, the CAB impliedly determined that, because the
claimant suffered from post-concussion syndrome immediately following the
May 2019 incident and then continued to suffer from post-concussion
syndrome in 2020 as a result of the May 2019 accident, the claimant did not
suffer a “subsequent disability by injury” in January 2020. We conclude that
the CAB misapplied the standard set forth in Appeal of CNA Insurance Cos. ─
in that case we rejected the argument that the subsequent disability must arise
from a condition or injury unrelated to the original injury. See id.

In Appeal of CNA Insurance Cos., we observed that the statute discusses
“subsequent disability by injury” in general terms and does not distinguish
among causes of subsequent impairment. Id. at 273 (explaining that “[had] the
legislature intended to limit the second injury fund to particular causes of
disability, it could have expressly provided such limitations in the statute”).
We then defined “subsequent” as “‘following in time: coming or being later than
something else.’” Id. (quoting Webster’s Third New International Dictionary
2278 (unabridged ed. 1961)). We also defined “disability” as “‘the inability to
pursue an occupation or perform services for wages because of physical or
mental impairment.’” Id. (quoting Webster’s Third New International Dictionary
642 (unabridged ed. 1961)). We therefore concluded that, based upon its plain
language, RSA 281-A:54, I, “does not preclude recovery from the fund if the
‘subsequent disability by injury’ is either an aggravation or recurrence of the
original disability.” Id.

In this case, the CAB relied upon the reports from the claimant’s PCP
and Engstrand to find that the claimant’s post-concussion syndrome was one
continuous disability rather than a “subsequent disability by injury.” See RSA
281-A:54, I. The CAB, however, failed to consider that the claimant received a
positive prognosis in October 2019 and returned to work full-time for three
months following her 2019 injury and then left work for a second time in
January 2020 after her symptoms began to worsen. The fact that the
claimant’s symptoms and diagnosis that resulted in the claimant’s initial
departure from work in January 2020 were the same as, or similar to, her
symptoms and diagnosis resulting from the May 2019 injury does not preclude

6
a finding that the claimant experienced a “subsequent disability by injury” in
January 2020. See Appeal of CNA Ins. Cos., 143 N.H. at 273; RSA 281-A:54, I.
Therefore, the fact that Engstrand opined, and the CAB agreed, that the
claimant’s January 2020 symptoms and diagnosis were caused by the May
2019 injury does not preclude reimbursement. See Appeal of CNA Ins. Cos.,
143 N.H. at 273-74. We agree with the petitioners that the CAB erroneously
required DOC to prove a second injury and we further conclude that, when it
considered whether the claimant incurred a “subsequent disability by injury”
pursuant to RSA 281-A:54, I, the CAB failed to apply the standard set forth in
Appeal of CNA Insurance Cos.

For the foregoing reasons, we vacate the CAB’s ruling that the claimant
did not suffer a “subsequent disability by injury” and remand for the CAB to
apply the standard set forth in Appeal of CNA Insurance Cos. and to engage in
further fact-finding as it deems necessary. If, on remand, the CAB finds that
the claimant suffered a “subsequent disability by injury,” the CAB should then
consider whether there was a “compensation liability for a disability that is
greater by reason of the combined effects of the preexisting impairment than
that which would have resulted from the subsequent injury alone.” RSA 281-
A:54, I.

Vacated and remanded.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Timothy A. Gudas,
Clerk

7