Bouchard v. Walmart
New Hampshire Insurance Company
October 5, 2016
Myofascial IME§312 Clear and Convincing Evidence
Summary from the Troubh Heisler Attorneys
In Bouchard v. Walmart, Bouchard claimed ongoing benefits for her “myofascial pain.” Dr. Woelflein performed a §312 IME and found that Bouchard did have a work-related "myofascial pain" injury but that it did not cause her incapacity. Judge Hirtle adopted the IME opinion and allowed Walmart to discontinue benefits.
Bouchard appealed, claiming that the record contained “clear and convincing evidence to the contrary,” but the Appellate Division applied its lower standard of review in §312 cases, found “competent evidence” in the record to support Judge Hirtle’s decision, and affirmed it.
Although the panel decision failed to describe the “competent evidence” in the record, it demonstrates again that judicial decisions based on §312 IMEs are nearly impossible to overturn on appeal.