Pastula v. Lane Construction

Insurance Company

Liberty Mutual Insurance

Date Decided

June 1, 2015

Panel Members

Timothy Collier

Elizabeth Elwin

Sue Jerome


Board IME Board IME Pre-Existing Injury


IME§312 Pre-Existing Conditions Medical Evidence Average Weekly Wage

File Size

269 KB


Summary from the Troubh Heisler Attorneys

A hearing officer cannot reject an IME’s medical findings unless based on clear and convincing contrary medical evidence, not just contrary factual evidence; an injured employee who returns to work with no wage loss but then leaves work entirely for an unrelated medical problem is still entitled to lost time benefits if she later gets restrictions relating to her work injury; an employee with consistently intermittent earnings must have her average weekly calculated by using comparable employees; and a hearing officer can impute earnings to an employee during the employer’s seasonal layoff.

Pastula was a truck driver and paving equipment operator who was always laid off during the winter. She fell at work and landed on her hands and knees. She got medical treatment but remained at work on light-duty. She then left work in late summer due to a non-work-related mental health condition and never returned. Thereafter, she had surgery on her knee and both wrists. She filed petitions, and a §312 IME supported her claims, in spite of her pre-existing conditions.

H.O. Greene rejected the IME opinion, however, on the grounds that the facts at hearing differed from those assumed by the IME doctor, and that the employee had a pre-existing condition in her knees. He initially found the work injuries had resolved and did not cause ongoing incapacity. On further findings, however, he found a significant aggravation of the pre-existing condition and awarded total incapacity benefits. Both parties appealed.

The Appellate Division reversed in part, as H.O Greene “did not point to any medical evidence in the record” that contradicted the IMEs opinion. The panel upheld H.O. Greene’s finding of a work-aggravation of her wrist conditions, his award of total incapacity benefits under §201(5) and Roy v. BIW, and his calculation of the AWW under §102(4)(D) and his imputing earnings during Pastula’s annual winter layoff.

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