Library


WCB App Div OKs Partial Rejection of §312 IME Findings

The Maine Workers’ Compensation Board Appellate Division has just issued a new decision upholding a judge’s decision to reject in part the opinions of the §312 IME doctor on the basis of “clear and convincing evidence to the contrary” provided by the employee's treating physicians.

In Darla Dunn-Morrell v. Viking Motors, Ms. Dunn-Morrell was an office worker at Viking Motors who injured her low back and right shoulder in 2003 while “handling a large box in a small space.” In a 2007 decision, the WC Board found her injuries compensable and awarded her ongoing total incapacity benefits. In 2010, she underwent a sacroiliac fusion and decompression of her sciatic nerve, and in 2013 she had additional surgery at L4-5. Viking Motors declined to pay those bills, so Ms. Dunn-Morrell filed a Petition for Payment of the bills; Viking later filed a Petition for Review of Incapacity.

Pursuant to §312, Dr. Donovan examined Ms. Dunn-Morrell and found that her right shoulder injury had resolved, but that she continued to have symptoms from her fusion surgery. He also found, however, that the 2013 disc surgery was not related to the work injury, and that 90% of her of incapacity related to her non-work conditions. In a supplemental report, Dr. Donovan also found that the sacroiliac joint fusion surgery was “controversial and not proper.”

Judge Goodnough determined that Dr. Donovan’s analysis was “sufficiently comparative… to overcome the res judicata effect of the 2007 decision” that had found her to be totally disabled; he then determined that, excluding her subsequent non-work conditions, she had only a 66% partial incapacity from her work injuries, and he reduced her benefits accordingly. He also adopted Dr. Donovan’s opinion regarding Ms. Dunn-Morrell’s right shoulder, but he rejected Dr. Donovan’s opinion regarding the prior surgeries, finding “clear and convincing evidence to the contrary” and ordering payment for the surgeries but not for treatment of the right shoulder.

Viking Motors appealed, contending that Judge Goodnough should have adopted all of Dr. Donovan’s §312 IME opinions, as the record did not contain any “clear and convincing evidence to the contrary.” The Appellate Division panel noted that the standard of review in such cases is whether the judge “could reasonably have been persuaded” by the contrary medical evidence that it was “highly probable” that the record did not support the IME’s finding.

The panel found that Judge Goodnough’s decision properly explained the reasons he rejected Dr. Donovan §312 IME opinions: Dr. Donovan thought Ms. Dunn-Morrell’s leg symptoms started in 2007, but the record showed that she complained of them in 2003, within a few months of her injury. Judge Goodnough also cited the contrary opinions of Ms. Dunn-Morrell’s treating doctors, including Dr. Barth, “the only practicing neurosurgeon to opine on the topic and … the best qualified.” (Dr. Donovan is an orthopedic surgeon; the WCB has no neurosurgeon on its IME panel.) The panel also approved of Judge Goodnough’s “separating out the effects of the subsequent non-work shoulder condition” from Ms. Dunn-Morrell’s overall total incapacity.

This decision demonstrates that parties can successfully overcome unfavorable §312 IME findings that rely on incorrect facts, such as when certain symptoms started. If you have any questions, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law