2018 WL 5020121
Supreme Court of New Hampshire.
Appeal of Associated Grocers of New England, Inc.,
In Case No. 2017-0598
the court on October 17, 2018, issued the following order:
*1 The respondent, Associated Grocers of New England, Inc., appeals a decision of the New Hampshire Compensation Appeals Board (board) awarding temporary total disability and medical benefits, see RSA 281-A:23, :28 (2010 & Supp. 2017), to the petitioner, Brian Lemire, for a knee injury he sustained upon exiting the cab of a tractor trailer on May 9, 2016. We affirm.
The board found that, in exiting the cab, which is between four and five feet off the ground, the petitioner held onto a “grab bar” with his right hand, “stepped backwards down” three grated steps, and “in one fluid motion, stepped down onto the ground … onto his left leg, turned and twisted with his weight on his left knee, to change direction, heard a pop and fell to the ground.” Exiting the cab in this manner, according to the board, was something that the petitioner was required to do between ten and twenty times during an average shift. Following this incident, an MRI revealed a meniscus tear requiring surgery. In awarding compensation, the board found that the injury resulted from a “mixed risk,” see Appeal of Margeson, 162 N.H. 273, 278 (2011), that the employment was “a substantial contributing factor” to the injury, see Appeal of Kelly, 167 N.H. 489, 493 (2015), and that the May 9, 2016 incident, and not a preexisting condition, was the medical cause of the injury.
On appeal, the respondent challenges the board’s findings on causation, arguing that: (1) the evidence compelled a finding that the injury occurred when the petitioner was walking away from the truck, and not when he was stepping backward off of it; (2) the truck’s steps were not, as a matter of law, “a substantial enough contribution to outweigh [the petitioner’s] personal risk”; (3) alleged inconsistencies between the petitioner’s testimony before the board and his prior testimony and statements rendered the board’s finding on legal causation erroneous as a matter of law; and (4) the uncontradicted report of the petitioner’s treating physician was not competent to establish medical causation because the physician allegedly failed to account for, or was unaware of, other potential causes of the injury.
The burden is on the respondent to establish that the board’s decision “is clearly unreasonable or unlawful.” RSA 541:13 (2007); see Appeal of Malo, 169 N.H. 661, 666 (2017). “[A]ll findings of the [board] upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable.” RSA 541:13 (2007); see Malo, 169 N.H. at 666. Accordingly, we defer to the board as to its findings of fact. Malo, 169 N.H. at 666. Our task is not to determine whether we would have found differently than did the board or to reweigh the evidence, but to determine whether the board’s findings are supported by competent evidence in the record. Id. at 668. We will not disturb the board’s factual findings if they are supported by competent evidence upon which they reasonably could have been made. Id.
As in any appeal, the respondent, as the appealing party, has the burden of demonstrating reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our review of the board’s well-reasoned decision, the respondent’s challenges to it, the relevant law, and the record submitted on appeal, we conclude that the respondent has not demonstrated reversible error. See id.
Eileen Fox, Clerk
BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
Not Reported in Atl. Rptr., 2018 WL 5020121