Dumont v. AT&T Mobility Services
April 18, 2019
CategoriesBoard IME Notice
Hand Repetative Motion Injury En Banc Clear and Convincing Evidence Gradual Injury Multiple Injuries
Summary from the Troubh Heisler Attorneys
Ms. Dumont was a sales consultant who developed pain in her hands, allegedly from repeated pinching and gripping at work. Dr. Matthews operated on her left hand twice, but she continued to experience pain. Dr. Matthews and Ms. Dumont's other doctors said her conditions were work-related, but Dr. Donovan performed a §312 IME and found that her one of her hand conditions was not work-related, and the other was only temporarily aggravated by her work. In spite of the §312 IME findings, Judge Stovall granted her petition for review, finding her credible and finding that Dr. Matthews’ deposition testimony provided "clear and convincing evidence to the contrary" of Dr. Donovan's IME findings.
AT&T filed for additional findings, pointing out that Dr. Donovan had not seen Dr. Matthews’ deposition testimony, so it could not serve as the basis for rejecting the §312 IME opinions. Judge Stovall issued findings amending the basis of his decision, saying he was instead relying on Dr. Matthews prior written opinion instead of his deposition testimony. AT&T appealed, but the Appellate Division affirmed the decision, ruling that Judge Stovall adequately explained his reason for rejecting the IME.
AT&T had also raised the notice defense, but Judge Stovall found that Ms. Dumont gave proper notice of her gradual injury within 30 days after she realized her symptoms were work-related. The appellate panel found no error in his doing so, based on the employee's testimony that she gave notice "about a month" after her symptoms arose. AT&T also claimed that Judge Stovall failed to apply §201 (4) regarding pre-existing conditions, but the panel held that it did not apply to this gradual injury. The panel did remand the case back to Judge Stovall, but only because his decision was "internally inconsistent" regarding the various and injuries the doctors had diagnosed.