Sherry Haley v. RSU 78 – Where the employer failed to raise the issue at hearing level of whether contrary medical evidence was considered by the 312 IME as set forth in Sec. 312(7), the issue was not preserved for appeal. In Haley, the Board 312 IME concluded that the work related right knee meniscus tear did not contribute to the development or progression of the employee’s underlying arthritis, and therefore did not contribute to the need for a knee replacement. Following the 312 IME report a treating physician issued a report stating that the meniscus tear exacerbated the underlying arthritis. This report was not presented to the Board IME at a subsequent deposition, where the 312 IME stood his initial conclusions of no causation.
The employer did not object to the use of the treating doctor’s report and did not raise the issue that the report was not considered by the 312 IME. The ALJ found that the treating examiner’s report and other M-1’s constituted clear and convincing evidence to the contrary of the Board IME, and granted the petition for award and petition for payment of medical services.
On appeal, the Appellate Division held that because the employer failed to raise the issue of whether the 312 IME had considered the contrary medical evidence at hearing or in closing arguments, it was not preserved for appeal.
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