Jalbert v. Northern Maine Medical Center

Insurance Company


Date Decided

September 11, 2018

Panel Members

Elizabeth Elwin

Sue Jerome

Mike Stovall


Medical Evidence Partial Incapacity Medical Evidence Partial Incapacity


Nurse Back Work Restrictions Modified Duty Aggravation Causation

File Size

46 KB


Summary from the Troubh Heisler Attorneys

Ms. Jalbert was an ER nurse at NMMC and injured her low back in 2006. She returned to work with restrictions in a new, lighter-duty position that ultimately paid her more than her pre-injury AWW, resulting in a 2013 decree allowing cessation of incapacity benefits. In 2014 NMMC terminated her employment "for reasons unrelated to her work injury," and Ms. Jalbert found work elsewhere as a visiting nurse traveling to clients' homes. In 2015 she sought medical care for increased low back symptoms which she attributed to "long hours of driving." Her doctor said her symptoms related to the 2006 work injury, aggravated by her current job, and he restricted her against heavy lifting or prolonged sitting or standing.

NMMC got a §207 exam from Dr. Herzog who initially reported that Ms. Jalbert's symptoms related to the 2006 injury, and that her recent driving caused only a temporary, insignificant aggravation. He then issued a supplemental report changing his opinion on causation. Judge Hirtle adopted her PCP’s opinion on causation and work capacity and found that her current restrictions prevented her from resuming her former work as an ER nurse, ordering benefits from the date of termination forward. NMMC appealed on causation and incapacity.

The Appellate Division found that Ms. Jalbert met her burden of proof that her incapacity related to the 2006 work injury. The panel acknowledged "conflicting evidence" on the question but held that "An ALJ may choose among conflicting expert opinions on factual questions." They pointed out that Ms. Jalbert's PCP's M-1s indicated her disability related to the 2006 work injury, providing "competent evidence to support the ultimate determination." The panel also found competent evidence to support Judge Hirtle's finding that Ms. Jalbert’s reduced earning capacity related to the 2006 work injury and not to some other source.

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