Hood v. Maine Department of Corrections
February 13, 2018
Respiratory Chest IME§312 Clear and Convincing Evidence Experience
Summary from the Troubh Heisler Attorneys
Mr. Hood had a respiratory injury in 2009 from breathing epoxy paint fumes. He continued working until 2014 when he went out of work with chest pain and other symptoms. He filed petitions alleging that his 2009 injury contributed to his recent symptoms causing incapacity. The WCB appointed a §312 IME doctor (the AD decision did not identify the requesting party or the IME doctor), who examined Mr. Hood and opined that his 2009 respiratory injury had resolved within a month after it occurred and played no role in his current condition.
At deposition, the doctor admitted that his specialty is neither occupational medicine nor pulmonology, and that he had never treated a patient for a similar exposure to fumes. Mr. Hood urged Judge Elwin to reject the §312 IME opinion because of the IME physician's lack of qualification and experience, but she adopted the IME opinions anyway. She ruled that the contrary opinions from the other doctors with more training and experience in pulmonary medicine were not "clear and convincing evidence to the contrary."
Mr. Hood appealed, and the Appellate Division panel upheld the decision in part, holding that the evidence regarding the physicians' relative expertise did not compel Judge Elwin to reject the IME opinion. Because Mr. Hood had requested further findings, however, the panel found that Judge Elwin's decision did not contain an adequate basis for meaningful appellate review, as it lacked findings weighing the §312 IME doctor’s experience and expertise in toxic exposure cases against those of the competing medical experts. The panel remanded the case back to Judge Elwin for further findings.