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WCB App. Div. Upholds Section 312 Decision

The Maine Workers’ Compensation Board Appellate Division has recently issued another decision upholding an ALJ’s decision based on §312 IMEs and restating the high burden that losing parties bear in trying to overturn such decisions.

In Anthony Bergeron v. Casella Waste Systems , Bergeron injured his back at work and Casella paid him incapacity benefits accordingly. Casella filed a Petition to Determine Permanent Impairment (PI), presumably to apply the 520 week limitation on partial incapacity benefits in §213. Dr. Pier had previously assessed 10% PI, and Dr. Donovan performed a §312 IME and also found 10% PI.

Bergeron was examined by Dr. Phillips, who assessed 15% physical PI and 7% psychological PI because of his “related” depression. Dr. Lobozzo performed a §312 psychological IME and found 0% psychological PI related to the injury. In her decision, Judge Knopf adopted the §312 IMEs and found 10% PI related to Bergeron's work injury.

Bergeron appealed, arguing that Judge Knopf erred in adopting the §312 IME opinions and in failing to adopt Dr. Phillips’ opinions as "clear and convincing evidence to the contrary." The Appellate Division again noted that, when an ALJ adopts a §312 IME opinion, the decision cannot be reversed on appeal unless the IME's findings are not supported by competent evidence or the ALJ’s decision has no reasonable basis.

The panel found ample evidence in the record to support the §312 IME findings and a reasonable basis for Judge Knopf's decision (e.g., Dr. Phillips is not a psychiatrist or psychologist and should not have assessed psychiatric PI), and therefore affirmed it. This decision shows the futility of appealing decisions based on the §312 IMEs, unless the IME’s findings lack any competent evidentiary support.

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Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law