Steven A. Lenfest, Jacob R. Hallett, and Stephen Hallett v. Sullivan & Merritt
Maine Employers' Mutual Insurance Company
September 25, 2018
CategoriesBoard IME Procedure Total Incapacity
Multiple Employees Respiratory IME§312 Toxic Exposure Sequestration Page v. General Electric
Summary from the Troubh Heisler Attorneys
The employees were iron workers who use acetylene torches to cut steel in a confined space at the Red Shield paper mill in Old Town. They alleged headaches, cramps and other symptoms from smoke caused by the torches. S&M’s air level tests, however, were negative for carbon monoxide. The employees declined to continue working, so S&M fired them, but they thereafter received unemployment benefits. They filed Petitions for Award of Compensation, and there cases were consolidated for hearing and decision.
Dr. Fuhrmann performed a §312 IME on each of the employees, concluding that they suffered an acute respiratory irritation due to exposure to dust and fumes, but the effects of that exposure had ended and they were fit for duty. The examiner also found that the medical records he reviewed “clearly demonstrate that there was no evidence of arsenic, lead, or carbon monoxide in the environment.” The §312 exam was done early in the case, and neither party sent subsequent medical records to Dr. Fuhrmann, including the records from Dr. Korrick, who had later concluded that the employees had chronic neurologic sequela from the toxic exposures at the paper mill. During the hearing, the employees were sequestered until after each employee had completed his testimony, at which point Judge Greene allowed him to observe the remaining proceedings.
Judge Greene issued a decision granting the employees’ petitions, relying on Dr. Korrick's opinion that they had suffered acute respiratory injuries from the inhalation of dust and ash, together with chronic psychological and neurological complications resulting from toxic exposure to carbon monoxide. Judge Greene did not address the differences in opinions between the §312 examiner and the subsequent treating doctors, nor did he indicate whether “clear and convincing evidence to the contrary” compelled his findings contrary to the IME report. S&M appealed.
On appeal, S&M argued that Judge Greene improperly rejected the §312 IME opinion based on subsequent medical evidence that was not provided to the examiner, contrary to a requirement of §312. The Appellate Division panel first noted that §312 also requires that, after the exam but no later than 14 days before the hearing, the IME doctor must “be notified” of all subsequent medical evidence. The panel held that S&M “waived this argument by not properly raising it at the hearing level,” stating S&M did not object to the admission of the subsequent records, did not ask that the subsequent records be forwarded to the 312 examiner, and did not raise the issue in its position letter or motion for findings. The panel did not state whether all of those things must be done to cure the “waiver,” or if any one of them alone would suffice. The panel also noted that Dr. Fuhrmann focused on the respiratory symptoms, but the subsequent doctors focused on the employees’ neurological symptoms, on which Dr. Fuhrmann did not offer any opinions.
Regarding witness sequestration, the panel stated that “sequestration is to prevent one witness from hearing the testimony of another so as to be able to conform his own testimony to that given by the other.” In this case, because each employee had already testified, the panel agreed with Judge Greene that he did not need to sequester them any longer, and they had an interest in “joining the proceedings” after they concluded their testimony.
S&M argued that Judge Greene's factual finding of a toxic exposure to carbon monoxide were unsupported by competent evidence. The panel upheld that finding, however, stating that the employees’ testimony and medical evidence allowed Judge Greene to infer the exposure, because the treating doctors’ opinions that the employees' symptoms were likely “consistent with carbon monoxide exposure” constituted competent evidence of exposure.
Finally, S&M argued that the employees were not entitled to total incapacity benefits because they had applied for and received unemployment benefits, for which they can qualify only if they are “able to work.” Citing the Law Court's 1978 decision in Page v. General Electric, the panel held the DOL’s award of unemployment benefits does not preclude the WCB from finding the employees entitled to total incapacity benefits, since an employee may have a partial work capacity but be unable to find a suitable job.