DeLong v. Key Bank

Insurance Company


Date Decided

May 6, 2019

Panel Members

David Hirtle

Tom Pelletier

Mike Stovall


Findings of Fact Board IME Findings of Fact Board IME


Multiple Injuries Conflicting Testimony Factual Basis Competing medical opinions

File Size

259 KB


Summary from the Troubh Heisler Attorneys

Ms. DeLong injured her shoulder at Norway Savings Bank in 2011 and reinjured it at Key Bank in 2013. She filed petitions and Judge Knopf granted them in part awarding her the protection of the Act for both injuries and also awarding closed-end incapacity and medical benefits on the 2013 injury. Ms. DeLong appealed, arguing that Judge Knopf erred in “adopting” the employer's testimony on whether Ms. DeLong could perform her job within her restrictions. Ms. DeLong also argued that Judge Knopf should have adopted the §312 IME doctors' original opinion, rather than his revised opinion at deposition that her injury resolved shortly after it occurred.

The appellate panel affirmed the decision. The panel found that, although contrary evidence also was presented, Judge Knopf as fact finder “had authority to choose between conflicting versions of the facts,” and that competent evidence in the record supported her findings. Regarding the IME testimony, the panel held that the ALJ must “consider the larger context” of the IME’s statements and can choose between competing medical opinions. In this case, Judge Knopf found that “the factual basis supplied to the examiner at his deposition was more accurate than the factual basis of the examiner’s written report.”

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