Sandra Harvey v. Affiliated Laboratories, Inc.– The Appellate Division affirms the ALJ’s decision rejecting the conclusions of the sec. 312 IME based on clear and convincing evidence to the contrary. In Sandra Harvey v. Affiliated Laboratories, Inc., Dec. No. 24-11, a prior consent decree provided protection of the Act for a July 7, 2015 respiratory injury, and awarded closed end lost time benefits. Harvey had a preexisting condition of tracheal bronchial malacia (TBM). The nature and extent of the injury was reserved. In 2019 Harvey suffered an aggravation and filed a Petition for Award seeking further benefits based on the diagnosis of unresolved reactive airways disease (RAD) resulting from the 2015 work injury. Dr. Medrano completed a sec. 312 IME and concluded the injury did cause RAD but the effects of the injury has resolved. The diagnosis of RAD was no longer active due to negative diagnostic testing. The ALJ found the opinions of Drs. Fuhrmann and Christiani to represent clear and convincing evidence to the contrary. On appeal the issue is whether the ALJ could have been reasonably persuaded by the contrary medical evidence that it was highly probable that the record did not support the IME’s findings. When the ALJ relies on clear and convincing evidence to the contrary the ALJ should state those reasons in writing. Here, the Appellate panel found the ALJ’s decisions supported both these requirements and affirmed the decision.
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