Allarie v. Jolly Gardener Products

Insurance Company

Peerless Insurance

Date Decided

November 8, 2016

Panel Members

Timothy Collier

David Hirtle

Evelyn Knopf


Res Judicata


Pre-Existing Aggravation Neck Law of the Case

File Size

189 KB


Summary from the Troubh Heisler Attorneys

Allarie injured his neck in a 1999 car accident, requiring a 3-level cervical fusion of C4-5-6. Four years later, he claimed a work-related aggravation injury from his heavy labor at Jolly Gardner, and Judge Goodnough issued a decision in 2006 finding that the work "lit up his pre-existing fusion site and accelerated disc degeneration at C3-4 and C6-7 levels" (the levels above and below his 1999 fusion site). He awarded Allarie partial incapacity benefits based on his imputed earning capacity. In 2012, Allarie had surgery at C3-4 and C6-7.

Jolly Gardner filed a Petition to Stop Benefits, arguing that Allarie's PI was below the 13.2% threshold and that the 520 week durational limit on partial incapacity benefits had expired. Dr. Hall performed a §312 IME and found that Allarie had 25% PI as a result of his neck condition, but that none of it related to his 2003 work injury and it was instead entirely the result of his pre-existing condition. Judge Goodnough adopted Dr. Hall 25% PI assessment but rejected his opinion that it did not relate to the work injury, because it was contrary to the findings he established in his 2006 decision. He thus denied Jolly Gardner’s petition, allowing Allarie to continue receiving WC incapacity benefits.

Jolly Gardner appealed, but the AD panel affirmed the decision, because the 2006 decree established as a matter of law that the 2003 work injury aggravated and accelerated his pre-existing condition, meaning that the impairment from the pre-existing condition must be included in the PI determination. Thus, Dr. Hall's §312 IME finding was inconsistent with that decision, which established the "law of the case," so Judge Goodnough properly declined to adopt Dr. Hall's contrary opinion regarding the cause of Allarie's PI.

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