Date: October 5, 2016

Topic: Weight and reliance afforded to §312 Independent Medical Examiner opinions

Read the full text: Carol J. Bouchard v. Wal-Mart Stores, Inc.

A decision was recently issued in Bouchard v. Wal-Mart Stores by the Maine Workers’ Compensation Board Appellate Division, upholding the weight and reliance afforded to §312 Independent Medical Examiner opinions. In the report issued by Dr. Karyn Woelflein, Ms. Bouchard was found to suffer from myofascial pain syndrome, but this condition did not cause her a loss of earning capacity. At the original hearing, Administrative Law Judge David Hirtle adopted Dr. Woelflein’s opinions, allowing for Wal-Mart to cease payment of partial incapacity benefits.

Pursuant to 39-A M.R.S.A. §312, the opinions of these Independent Medical Examiners are entitled to increased weight and must be adopted absent “clear and convincing” evidence to the contrary. However, once an Administrative Law Judge has adopted these opinions at the original hearing level, prevailing on appeal of that decision requires a finding that the medical examiner’s findings were not supported by any competent evidence, or the record discloses no reasonable basis to support the decision. See Pomerleau v. United Parcel Serv., 464 A.2d 206, 209 (Me. 1983). See also Dillingham v. Great N. Paper, Me. W.C.B. No. 15-7, ¶ 3 (App. Div. 2015).

The Appellate Panel found there was competent evidence in the record to support both Dr. Woelflein’s medical opinion and the ALJ’s adoption of that opinion and affirmed.

This decision highlights the risks inherent in proceeding to hearing with an unsupportive Independent Medical Examiner opinion. The first chomp at the apple already requires a high bar of evidence to overcome, but the second, on appeal, is increased even further.