THE STATE OF NEW HAMPSHIRE SUPREME COURT. In Case No , Appeal of Harriet Redmond, the court on June 5, 2018, issued the following order:

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , Appeal of Harriet Redmond, the court on June 5, 2018, issued the following order: The claimant, Harriet Redmond, appeals an order of the Compensation Appeals Board (board) denying her claim for physical therapy treatment expenses. See RSA 281-A:43 (Supp. 2017). She contends that the board erred by: (1) not making adequate findings of fact; (2) not weighing the evidence correctly; (3) holding her to a higher burden of proof (capitalization omitted); and (4) violating the New Hampshire Constitution. We affirm. An injured employee bears the burden of proving that subsequent medical treatment is reasonable and required as a result of the injury. Appeal of Wingate, 149 N.H. 12, 15 (2002). We will not disturb the board s decision absent an error of law, unless we are satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable. RSA 541:13 (2007); Appeal of Northridge Envtl., 168 N.H. 657, 660 (2016). We review the board s factual findings deferentially and review its statutory interpretation de novo. Northridge Envtl., 168 N.H. at 660. Our task is not to determine whether we would have found differently or to reweigh the evidence, but rather to determine whether the findings are supported by competent evidence in the record. Id. at 663. The board s findings of fact will not be disturbed if they are supported by competent evidence in the record, upon which its decision reasonably could have been made. Id. We first address whether the board erred by not providing adequate findings of fact. See RSA 541-A:35 (2007) (requiring decision to include findings of fact). After summarizing the testimony and evidence submitted, and the parties arguments, the board identified the medical opinions upon which it relied. To the extent that the claimant argues that the decision did not clearly identify the competing evidence it relied on to disregard the opinions of [her] treating providers, we disagree. Cf. Appeal of Fay, 150 N.H. 321, 325 (2003) (stating that board is entitled to ignore uncontradicted medical testimony, but must identify the competing evidence supporting its decision to do so). To the extent that the claimant argues that, after summarizing her treating physical therapist s testimony, the board did not state that it did not credit the therapist, such a finding is not necessary to permit meaningful judicial review. See Appeal of Malo, 169 N.H. 661, 669 (2017). Although the board s decision is not a paragon of clarity in that it summarizes the evidence under the heading Findings of Fact, we conclude that it sets forth the evidence presented and its analysis of the same sufficiently to permit appellate review. See id.

2 We next address whether the board correctly weighed the evidence before it. As the trier of fact, the board may disregard, in whole or in part, an expert s testimony when faced with conflicting expert testimony. Appeal of Rainville, 143 N.H. 624, 630 (1999). As long as competent evidence supports the board s decision, we will not reverse a finding supported by expert evidence in the record even if other evidence would lead to a contrary result. Appeal of Anheuser-Busch Co., 156 N.H. 677, 682 (2008). In this case, the claimant s treating physical therapist testified that, although she initially treated the claimant for her knee and hip, she shortly thereafter became focused on other aspects of the claimant s health. She testified that she treated the claimant for PTSD from the outset and that her craniosacral therapy (CST) treatments reduced the pressure in the claimant s injured eye. The therapist testified that she had no credentials for treating pressures in the eye. She further testified that, because of [her] skill set, [she does not] do really anything standard, that the treatments that she performed on the claimant could not be recreated from her treatment notes, and that a large percentage of her treatments were devoted to assisting the claimant in achieving calm and quiet in [her] mind. The therapist s outcome measurements consisted solely of her observations and the claimant s reports. Dr. Spindel, an eye specialist who conducted an independent medical examination of the claimant, agree[d] that a certain amount of physical therapy, initially, was helpful for [her] in recovering from the psychological shock and musculoskeletal effects of the injury by improv[ing] her confidence to ambulate. The board found that the claimant s first 12 physical therapy treatments were reasonable and necessary as a result of her injury. However, Dr. Spindel concluded that the duration of the physical therapy provided... was excessive as there is no medical indication for physical therapy to treat an injury of the eye, uveitis or glaucoma. Although the physical therapist claimed that the treatments had reduced the pressure in the claimant s eye, the claimant s treating eye specialist did not credit physical therapy or alter her medication as a result. Similarly, Dr. Sobel, an orthopedist, who reviewed the claimant s records, reported that [t]he total number of [physical therapy] visits appear to be excessive and would not meet routine benchmarks in physical therapy treatment. He also question[ed] the actual medical indications for physical therapy for the... treatment for PTSD. He noted the lack of any evaluation or referral by a psychologist or psychiatrist specifically for treatment for PTSD. The claimant argues that Sobel, as an orthopedist, was not an expert in PTSD. However, the board could have reasonably inferred that an orthopedist was an expert in the use and appropriate duration of physical therapy. The board noted that the psychiatrist who was treating the claimant for PTSD while she was receiving physical therapy did not recommend physical therapy. 2

3 The claimant s treating physical therapist testified that her treatments consisted, in large part, of CST. The board relied upon the opinion of Dr. Mart, who reviewed the claimant s records and reported that CST is not an accepted treatment for posttraumatic stress disorder and that [t]here is no reliable scientific evidence establishing any medical necessity or reasonableness for craniosacral therapy for posttraumatic stress disorder that could be used in this case. The claimant argues that the board should not have relied upon Mart s opinion because he lacked experience with adults suffering from PTSD. However, we defer to the board regarding the weight to be given to evidence. See Fay, 150 N.H. at 325. Furthermore, Mart s opinion was based upon his survey of medical studies, rather than upon his personal experience. The claimant argues that RSA 281-A:38 (Supp. 2017) requires that all doctors submitting opinions to the board be certified in and maintain a current practice in the appropriate specialty. However, RSA 281-A:38, according to its plain language, applies to health care provider[s] conducting independent medical examinations only. To the extent that the claimant argues that distinguishing between independent medical examinations and other medical opinions is absurd, we conclude that the legislature could reasonably impose higher standards upon doctors to whom an employee was required to submit for examination. The claimant also argues that the board erred by relying upon medical opinions that were not based upon a physical examination, but she does not cite, nor are we aware of, any authority precluding the board from relying upon such opinions and conferring such weight upon them as it deems suitable. The claimant argues that the board should have given her treating physical therapist s opinion substantial weight or at least some reasonable amount of weight. However, even if we were to assume, without deciding, that her treating physical therapist s opinion was entitled to weight comparable to that of a treating physician, see Petition of Dunn, 160 N.H. 613, 622 (2010), the board was still entitled to rely upon contrary medical opinions. See Appeal of Sutton, 141 N.H. 348, 351 (1996) (stating board free to reject treating health care provider s testimony in favor of other medical testimony). Moreover, the board could have reasonably concluded that much of the treating physical therapist s opinion regarding the efficacy of her treatment was based upon the claimant s subjective reports. See Fay, 150 N.H. at (stating board free to disregard expert testimony, particularly when it derives at least in part from patient-claimant s narrative). The claimant argues that the board did not justify its decision to reject her current treating psychiatrist s opinion that CST was an appropriate treatment for her. However, the claimant does not cite, nor are we aware of, any authority that the board was required to do so. The claimant argues that the board did not give her treating psychiatrist s opinion appropriate weight; however, the board was 3

4 free to reject that opinion in favor of other medical testimony. See Sutton, 141 N.H. at 351. The claimant also argues that the board improperly relied upon her treating primary care provider s (PCP) opinion that her condition did not require physical therapy, despite the fact that he subsequently prescribed physical therapy for her. However, the board could have reasonably relied upon the PCP s initial prescription for physical therapy for her knee and hip, while disregarding his subsequent prescriptions for physical therapy after the initial 12 treatments. See Rainville, 143 N.H. at 630 (stating that board may accept or reject expert medical opinion in whole or in part). Although the claimant properly criticizes the board s speculation regarding the PCP s understanding of the physical therapy prescriptions that the therapist completed and he signed, the board s decision did not turn on the presence or absence of these prescriptions for the therapy; accordingly, such speculation about the preparation of the prescriptions was not central to the board s decision. The claimant relies upon Northridge Environmental to argue that, because her physical therapy treatments were prescribed by a doctor and aided in her recovery, they were clinically related treatment. However, the issue in that case was whether the claimant s wife was a health care provider, not whether the services provided were necessary and reasonable or causally related to the workplace injury. See Northridge Envtl., 168 N.H. at 659, 663. Accordingly, the case does not support the claimant s position. The claimant argues that the board incorrectly assessed the evidence because it: (1) found that there was no note of knee or hip issues when the emergency department note from the day of the assault stated that she suffered [l]eft knee abrasion with low clinical suspicion of acute knee fracture ; (2) found that [t]here is no evidence that [the physical therapy] treatments are reasonable and necessary or causally related to the original injury, even though her psychiatrist and physical therapist opined that the treatments were reasonable, necessary, and related to the injury; and (3) did not mention her PCP s May 24, 2016 prescription for physical therapy. However, she does not explain how these points influenced the board s decision that the continued physical therapy treatments were not reasonable and necessary as a result of the injury. See Wingate, 149 N.H. at 15. Where the claimant criticizes the board s consideration of the evidence as inconsistent with the liberal construction standard that is applied to New Hampshire s workers compensation statute, that maxim applies to the construction of the statute, not to the task of weighing evidence. Appeal of Gamas, 138 N.H. 487, 491 (1994). Upon this record, we conclude that the board did not err as a matter of law in rejecting the opinions of the claimant s treating physicians and therapist, nor did it improperly substitute its own opinion. We further conclude that its decision that the claimant failed to establish that the physical therapy treatments in excess of 12 were reasonable, necessary, and causally related to her workplace 4

5 injury was not unjust, unreasonable, or legally erroneous. See Northridge Envtl., 168 N.H. at 660. We next address whether the board held the claimant to an incorrect burden of proof. She argues that the board required proof that multiple specialist medical doctors had provided an express, advance referral for all of the various injuries and/or conditions that were in any way possibly being treated with physical therapy. However, the board s decision did not rest upon the nature or lack of referrals for physical therapy; instead, it rested upon the conclusion that the claimant failed to establish that the extended course of physical therapy was reasonable, necessary, or causally related to her workplace injury. See Northridge Envtl., 168 N.H. at 664 (stating that interpretation of board s decision is question of law, which we review de novo). Finally we address the claimant s constitutional arguments. The claimant argues that: (1) injured workers being treated by physical therapists are being denied [a] legal remedy, in violation of Part I, Article 14 of the New Hampshire Constitution, because she contends that the board required referrals from a physician; and (2) requiring a particularized prior referral and an expert opinion from an MD (or similar equivalent) for a workers compensation injury violates the constitutional guarantee of equal protection under Part I, Articles 2 and 12 of the New Hampshire Constitution. However, the board s decision did not rely upon the absence of referrals; instead, it relied upon the claimant s failure to establish that the physical therapy was reasonable and required as a result of the injury. See Wingate, 149 N.H. at 15. Affirmed. LYNN, C.J., and HICKS and HANTZ MARCONI, JJ., concurred. Eileen Fox, Clerk 5