Dapheen Creasey v. Walmart Associates, Inc.– The Appellate Division affirms the ALJ’s denial of a petition for award and petition for medical benefits against Walmart, concluding the ALJ did not err by adopting the 312 IME opinions over those of treating physicians. Other petitions were granted in part. It did remand the case for the ALJ to clarify which injury caused the work restrictions, a pre-injury aww and the partial benefit level.

In Creasey v. Walmart Associates, Inc., Me. W.C.B. Dec. No. 23-15 (App. Div. 2023), Creasey was employed at times after 2016 by both Walmart and Acme Monaco (Acme). A 2021 Consent Decree provided that (1) Creasey had a 2017 work related right wrist injury with Acme, which ended in January 2018, (2) Sustained a March 2019 work related right wrist injury with Walmart, and (3) Sustained a 2020 left wrist injury with Walmart. No findings were made with regard to a 2019 right shoulder injury. Subsequently, multiple petitions were filed. In a May 2022 decision the ALJ concluded Walmart was exclusively liable for bilateral wrist injuries, Acme was responsible for a 2019 right shoulder injury, paying lost time benefits to April 12, 2021, and Walmart was required to pay total lost time benefits subsequent to 10/4/21. On a Order granting a motion for further findings of fact and conclusions of law, the ALJ denied the award of lost time benefits against Walmart because the medical records stating no work capacity were not considered by the 312 IME. The IME had found Creasey retained work capacity, and the ALJ found she did not conduct a work search while a labor market survey showed there was a stable labor market for employment within her restrictions.

On appeal Creasey argued the medical records of treating physicians stating no work capacity were subsequent to the 312 IME, updated her work restrictions and therefore should have been considered clear and convincing evidence to the contrary under sec. 312(7). The App. Division held because they were not considered by the 312 IME, they did not qualify under sec. 312(7) as clear and convincing evidence to the contrary. Further, she had testified that she could work within the 312 IME restrictions. Creasey also argued the ALJ erred by not awarding partial benefits based on the difference between her pre-injury average weekly wage and her lower post injury earning capacity. The appellate panel found the ALJ did not make adequate findings to address this on appeal, and remanded the case for the ALJ to determine the aww and to clarify which injury was the cause of the work restrictions.

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Daniel F. Gilligan