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In re Appeal of CNA Insurance Company9/17/2002
Compensation Appeals Board
Argued: June 19, 2002
The petitioner, CNA Insurance Company (CNA), appeals a decision of the New Hampshire Compensation Appeals Board (board). The board held that CNA, rather than the respondent, Acadia Insurance Company (Acadia), was liable for the claimant's, Charmaine Pescinski's, disability benefits. We vacate and remand.
The following facts were either found by the board or are contained in the record. The claimant worked for Delta Dental Plan of New Hampshire as a customer service representative. Prior to joining Delta Dental, she had worked in various jobs and received two years of college education, studying to be a medical assistant. Her job duties at Delta Dental included, among other things, answering as many as 100 telephone calls each day, using a computer and taking written notes. On or about November 19, 1997, the claimant began experiencing pain and swelling in her right hand and reported her symptoms to her supervisor. On December 9, 1997, she was diagnosed with atypical carpal tunnel syndrome. The record does not contain a definition of atypical carpal tunnel syndrome.
Although the claimant was not placed on medical work restriction, Delta Dental modified her job requirements on a temporary basis. These modifications alleviated her symptoms somewhat but did not result in a complete abatement of her condition. In March 1998, the claimant reported an exacerbation in her condition due to typing and writing, complaining that the pain in her hand became progressively worse during the week. Her physician opined that her condition would not improve unless her workstation were ergonomically improved, her work hours were reduced or she were moved to a different job.
On December 1, 1998, Delta Dental changed workers' compensation carriers from CNA to Acadia. The claimant did not seek medical treatment for her condition again until April 1999, when her symptoms recurred, causing pain in both her right and left wrists and forearms. In June 1999, the claimant began missing work periodically and eventually she underwent surgery in April 2000. The claimant received increases in pay after the onset of her atypical carpal tunnel syndrome.
On January 28, 2000, the New Hampshire Department of Labor (DOL) hearing officer ruled that Acadia was liable for the claimant's benefits. The hearing officer found that the claimant sustained a cumulative trauma injury, which became disabling on June 25, 1999, when she first missed time from work. On appeal, there was no dispute before the board that the claimant's atypical carpal tunnel syndrome was causally related to her employment at Delta Dental. The only issue before the board was the determination of the date of injury and, therefore, the responsible carrier. The board reversed the DOL decision, holding that CNA was the responsible carrier because "the claimant suffered a disabling injury which was manifested in November of 1997 when CNA was the employer defendant's insurer." It ruled that the claimant experienced a loss in earning capacity in November and December 1997. Following CNA's motion for rehearing, the board reaffirmed its decision.
"We will not disturb the board's decision absent an error of law, or unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable." Appeal of Bergeron, 144 N.H. 681, 683 (2000); see RSA 541:13 (1997). We consider the board's findings of fact to be prima facie lawful and reasonable. See RSA 541:13.
CNA argues that the board erred by finding, without the assistance of expert testimony, that the claimant suffered a diminished earning capacity in November 1997. Acadia argues,
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