Barry v. Maine Department of Transportation

Insurance Company

Date Decided

February 14, 2018

Panel Members

Sue Jerome

Tom Pelletier

Mike Stovall


Board IME


Mental Injury Work-Related Stress IME§312 Work Capacity Earning Capacity

File Size

104 KB


Summary from the Troubh Heisler Attorneys

Mr. Barry claimed a mental stress injury from overwork doing both his prior job and a new supervisory position, and his doctor took him out of work. He testified that, before leaving work he told his boss he wanted to return to his prior job, but his boss said no; his boss testified that he did not recall that conversation and that Mr. Barry’s prior job was always available to him.

The DOT's §207 examiner opined that Mr. Barry had acute adjustment disorder with anxiety and minimal depression, but that he could have worked in his prior job all along. Judge Hirtle found a compensable mental stress injury but awarded Mr. Barry only a small partial benefit based on high imputed earnings of his prior job. Mr. Barry asked for additional findings of fact and conclusions of law on both the competency of the §207 opinion and his boss’s rejection of his request to go back to his prior job, but Judge Hirtle denied the request for further findings. Mr. Barry appealed.

Because Mr. Barry had requested additional findings, the Appellate Division scrutinized the decision more closely to determine if the findings are legally sufficient to support the result and are supported by evidence in the record. Regarding the §207 examiner's opinion of work capacity, the panel deferred entirely to Judge Hirtle's weighing of the competing medical evidence, stating that the "mere presence of contradictory evidence does not render an expert medical opinion incompetent." Regarding the imputed earnings, however, the panel found Judge Hirtle had not resolved the disputed factual issue of whether Mr. Barry's prior job had been available to him while he was out of work, and it remanded the case to him for further findings on that issue.

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