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Appeal of Briand6/10/1994
The petitioner, Denise Briand, appeals from a decision of the New Hampshire Department of Labor Compensation Appeals Board (board) finding she failed to prove that her medical condition arose out of and in the course of her employment with MacMulkin Chevrolet. We reverse in part, vacate in part, and remand.
Briand had been employed at MacMulkin Chevrolet for several years in various capacities prior to January 28, 1992, when she reported to her employer her alleged neck and back injuries for which she seeks workers' compensation benefits. Briand testified that her most recent position as a shipper and receiver involved mainly the handling of parts and packages weighing up to sixty pounds. She also occasionally performed secretarial tasks and errands such as driving customers home. Her description of her job responsibilities was corroborated by her supervisor's testimony. In the two years prior to January 1992, Briand experienced tightness in her back and neck for which Dr. Lanzara, a chiropractor, treated her approximately seven times. In August 1991, Briand was examined by Dr. Khawaja Rahman, a neurologist, who advised her not to lift anything heavy and recommended physical therapy, which she began in September 1991.
On January 28, 1992, Briand first reported to her employer that her condition resulted from a work-related injury. MacMulkin Chevrolet's insurer sent Briand to three independent doctors for examinations: Dr. Donald Cusson, Dr. Richard Levy, and Dr. Leonard Emond. Dr. Levy found that Briand's injury could be work related, but Dr. Cusson and Dr. Emond determined separately that it was not. Briand also continued to see Dr. Rahman, who in his November 23, 1992, report stated his "contention" that Briand's alleged injuries were work related because of the "repetitive motions and lifting" in which she engaged. Dr. Rahman diagnosed Briand's condition as chronic pain syndrome due to cervical/lumbosacral sprains.
At the hearing before the board, Briand testified to the alleged repetitive nature of her primary duties. Briand also testified that an auto accident she experienced while a child, which she had mentioned to both Dr. Rahman and Dr. Cusson, was not serious enough to be the source of her present neck problems, and that she had suffered no neck problems for many years prior to her present employment. Dr. Emond, the employer's expert witness, whose specialty is orthopedic surgery, testified that Briand's back pain is due to degenerative disc disease of at least ten years duration, and that it was "irritated," but not "aggravated," by her employment. Dr. Emond diagnosed Briand's neck condition as torticollis (wryneck), and explained her neck pain as deriving from her pre-existing back problems, since people with back pain often sleep in a position that causes neck strain. Dr. Emond determined that because no trauma was involved, her neck condition could not have been caused by cervical sprains.
In its decision of December 18, 1992, the board unanimously denied Briand's claim for benefits under RSA 281-A:2, XI and XIII (Supp. 1993), stating that she did not prove with "reasonable medical certainty" that her employment caused aggravation to a pre-existing medical condition. Briand moved for a rehearing, arguing that the board should have applied a preponderance of the evidence standard. The board denied the motion but amended its decision. The board's original decision, which stated, "that this opinion by Dr. Rahman does not rise to the level of reasonable medical certainty ," was amended to read, "that this opinion by Dr. Rahman does not carry the claimant's burden of proof in presenting competent medical testimony which substantiates the causal relationship o
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