In re Leborgne

173 N.H. 488

242 A.3d 1215

APPEAL OF Laura LEBORGNE (New Hampshire Compensation Appeals Board)

No. 2019-0464

Supreme Court of New Hampshire.

Argued: June 3, 2020

Opinion Issued: August 12, 2020

Cleveland, Waters and Bass, P.A., of Concord (Mark D. Wiseman and Callan E. Sullivan on the brief, and Mr. Wiseman orally), for the petitioner.

Devine, Millimet & Branch, Professional Association, of Manchester (Eric G. Falkenham on the brief and orally), for the respondent.

HANTZ MARCONI, J.

The petitioner, Laura LeBorgne, appeals a decision of the New Hampshire Compensation Appeals Board (CAB) upholding the denial of her request for reimbursement for massage therapy that she received in New York to treat an injury suffered while working for the respondent, Elliot Hospital. She argues that the CAB erred in finding that she failed to satisfy her burden to prove that the treatment was reasonable, necessary, and related to her workplace injury, and in applying the requirements of RSA 281-A:23, V(c) (2010) to her case. We reverse and remand.

I

The following facts were found by the CAB or are undisputed in the record. In May 2011, while working as a nurse for the respondent, the petitioner was injured when she was transitioning a patient from a chair to a bed. The petitioner reported feeling sudden and severe pain in her jaw, neck, shoulder, and upper right side of her body. Shortly thereafter, the petitioner was diagnosed with a trapezius strain and was initially prescribed a combination of ice, physical therapy, and trigger point injections. This treatment failed to fully control the petitioner's pain, and she reported feeling as though she had "hit a wall and was not improving," and that she needed to see a specialist. She was prescribed several types of medications, including muscle relaxers and opioids, but the relief they provided was not significant enough to "resume life."

Between 2012 and 2016, the petitioner was consistently treated with opioids to control her pain though the petitioner reported that these medications did not help and she had difficulty sleeping. She was also treated with physical therapy, trigger point injections, and acupuncture during this time. As of 2016, the petitioner's treating physician in New Hampshire had diagnosed her with "chronic myofascial pain of [the] right cervical spine and shoulder girdle" and stated that he was weaning her off opioid medications. Her doctor had also prescribed chiropractic treatments and massage therapy, and reported that this regimen of treatment was "necessary to maintain her daily function."

The petitioner subsequently moved to New York, where she currently resides, and started seeing Dr. Charles Kim, an orthopedic pain specialist. He took the petitioner off opioid medications, prescribed a new muscle relaxer, and ordered the continuance of massage therapy. Not all of Kim's contemporaneous treatment notes reference massage therapy. Kim later wrote two letters summarizing the petitioner's treatment plan and stating his medical opinion that the massage therapy the petitioner had undergone was reasonable and necessary in managing the petitioner's work-related injury. In a June 2018 letter, Kim explained that he was seeing the petitioner for "treatment and management of right shoulder pain/right upper back pain" and highlighted that she had been completing weekly deep tissue massages, which in combination with other treatment provided a "significant decrease in pain." Kim further opined, "It is medically necessary that [the petitioner] continue with weekly deep tissue massages with [a] licensed massage therapist as this has been an intricate part of her rehabilitation and management of pain since 2012." In his letter dated September 2018, Kim further stated,

It is my medical opinion that the weekly massage therapy is reasonable and necessary in managing chronic shoulder pain from [the petitioner's] work related injury. Massage therapy improves mobility, circulation and helps decrease pain. Her current treatment plan has significantly improve[d] her quality of life and mental health and enables her to manage pain without the use of narcotics.

The petitioner reported to the CAB that she still experiences pain "24/7," her baseline for pain is a 4 out of 10, and she experiences flare-ups where the pain jumps to a 6 or 7 out of 10. However, the petitioner also reported that the combination of the new muscle relaxer and the continued massage therapy has led to a better quality of life, and that she can sleep now and is no longer in a "fog" due to the opioid medications. The petitioner was still being treated by Kim at the time of the CAB's hearing.

The treatments at issue are the massage therapy that the petitioner received in New York from two licensed massage therapists (LMTs) from May 2017 to January 2018. The petitioner received deep tissue massages with myofascial release in sixty-minute sessions, once a week, with a focus on her right shoulder. She reported that the massage therapy has maintained her baseline pain level of 4 out of 10 and that she tries not to miss a treatment.

Prior to the start of the petitioner's treatments in New York, the respondent had covered the cost of her massage therapy. In New York, however, the petitioner paid for her treatments out of pocket, purchasing sessions in blocks of 10 because it was less expensive, and including a customary 20% tip. In 2017, the petitioner requested reimbursement for her massage therapy treatment in New York, submitting the bills that she had paid for personally. Her claim was denied, and the petitioner requested a hearing with the New Hampshire Department of Labor to review this decision. After a hearing, the department hearing officer concluded that the petitioner's "claim for reimbursement shall remain denied." See RSA 281-A:43, I(a) (2010). The petitioner appealed the hearing officer's decision to the CAB. See RSA 281-A:43, I(b) (2010).

Prior to the department hearing, Dr. Andrew Farber met with the petitioner and conducted an Independent Medical Examination (IME). Farber spent five minutes with the petitioner and reviewed her medical records. He reported that "[t]here is no need for further physical therapy or surgical treatment," but also stated that the petitioner had not reached a "maximum medical endpoint." Farber concluded that the petitioner's ongoing massage therapy treatment was "excessive" and "[t]herefore, ... was not reasonable, related or medically necessary to her [2011] injury."

For her hearing before the CAB, the petitioner provided evidence of her medical history, including treatment records from her previous doctors, Kim's contemporaneous treatment notes and opinion letters, treatment records from the two New York LMTs, and letters from the LMTs explaining their training and qualifications. The evidence provided to the CAB also included Farber's IME report and the petitioner's testimony. Following the hearing, the CAB concluded "[o]n the issue of RSA 281-A:23, ... the [petitioner] has not met her burden of proof to show by a preponderance of the evidence that the medical treatments ... are reasonable, medically necessary, and [causally] related to her workplace injury on May 19, 2011." In its discussion, the CAB stated:

The panel finds that Ms. LeBorgne was a credible witness. It also gives Dr. Kim's medical opinions and recommendations substantial weight as a treating physician, but found the fact that massage therapy was missing from several of his notes disturbing. Dr. Kim does explain the treatment plan more clearly in two letters that were written at the request of the [petitioner]. We also find that Dr. Kim's medical opinions to be slightly more reasonable and sounder than those of Dr. Farber, who is an independent medical examiner that only spent five minutes with the [petitioner] and conducted a review of her medical records.

(Record citations omitted.) The CAB continued:

However, the [respondent] argued that the [petitioner] did not meet her burden of proof, and that the treatment was not reasonable. It further argued that it did cover [prior] massage therapy ... because those Licensed Massage Therapists ... did complete the required workers compensation form for the State of New Hampshire. However, the [respondent] argues that the claim should be denied, because the New York LMTs did not complete or submit the workers compensation form ....

The CAB discussed and applied the requirements of RSA 281-A:23, V(c), and evaluated whether the petitioner met the statute's "good cause" exception to waive the requirement for submission of the New Hampshire Workers’ Compensation Medical Form (form) within 10 days of the first treatment. The CAB determined that there was not good cause to waive the 10-day reporting requirement.

The petitioner filed a motion for a rehearing, to which the respondent objected. The CAB denied the petitioner's motion, and this appeal followed. See RSA 281-A:43, I(c) (2010).

II

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 be unjust or unreasonable. Appeal of Panaggio, 172 N.H. 13, 15, 205 A.3d 1099 (2019) ; see RSA 541:13 (2007). As the appealing party, the petitioner has the burden of demonstrating that the CAB's decision was erroneous. Appeal of Panaggio, 172 N.H. at 15, 205 A.3d 1099. All findings of the CAB upon questions of fact properly before it are deemed to be prima facie lawful and reasonable. Id. ; see RSA 541:13. Thus, we review the CAB's factual findings deferentially. Appeal of Panaggio, 172 N.H. at 15, 205 A.3d 1099. We review its statutory interpretation de novo. Id.

On appeal, the petitioner argues that the CAB erred by improperly considering the failure of her massage therapists to submit the form required by RSA 281-A:23, V(c) in making its determination that the massage therapy treatment itself was not reasonable, necessary, and related to her workplace injury. The...