Morton v. Cumberland Farms, Inc.

Insurance Company

Gallagher Bassett Services and MEMIC

Date Decided

September 30, 2019

Panel Members

Timothy Collier

Evelyn Knopf

Mike Stovall


Board IME Procedure Board IME Procedure


Neck Shoulder Slip & Fall Gradual Injury §312 IME

File Size

181 KB


Summary from the Troubh Heisler Attorneys

WCB Appellate Division upheld Judge Elwin's decision granting Ms. Morton's petitions in part on the 2009 work injury to her neck and shoulder but denying her petitions on the 2015 injury to her hips and low back.

In 2009 Ms. Morton slipped and fell at work, injuring her neck and right shoulder. In 2012 she had surgery on both body parts, recovering in 2013 and returning to full duty work. In 2015 she developed pain in her hips which she "noticed while mopping" at work, and sciatic pain down both legs which she claimed resulted when she lifted an iced tea canister at work. A co-employee testified that Ms. Morton did not lift the canister, the co-employee did it herself.

Dr. Donovan performed a §312 IME and found that Ms. Morton's right shoulder and neck injuries were caused by the 2009 work injury, but that she had recovered a full time work capacity. Although Ms. Morton's treating doctor supported her claim of a back injury, Judge Elwin adopted Dr. Donovan's IME opinion, finding Ms. Morton's testimony regarding the canister lifting incident to be not credible. Judge Elwin determined that Ms. Morton could work 40 hours per week at $10 per hour, which exceeded her pre-injury AWW, so she was not entitled to ongoing partial incapacity benefits.

Neither party filed a Motion for Further Findings, so the Appellate Division assumed Judge Elwin made whatever factual determinations supported her decision, and it applied the higher "clearly erroneous" standard of review. The panel said that Judge Elwin did not err in adopting Dr. Donovan's findings that were "thoroughly documented in his report and deposition." The panel said Judge Elwin was permitted to decide between "conflicting versions of the facts" and that her finding regarding work capacity was supported by the evidence.

Ms. Morton, appealing pro se, asked to introduce additional evidence on appeal, but the panel denied that request. She argued that Cumberland Farms should have let her do "work hardening," but the panel noted that Ms. Morton was waiting for a release from her PCP before asking to return to work. In addition, she had not requested that relief in her position paper, so she did not preserve it for appellate review.

The panel found that, because Judge Elwin did not believe her testimony on the 2015 injury, Ms. Morton had not proven her case. In addition, the store manager and a coworker provided contrary testimonial evidence. The panel stated that has factfinder Judge Elwin was "the sole judge of the credibility of witnesses" and was "well within her authority to choose between conflicting versions of the facts."

Finally, Ms. Morton claimed that her attorney failed to put all the relevant medical records into evidence or "zealously represent her at Dr. Donovan's deposition." The panel noted that "ineffective assistance of counsel" does not pertain to civil matters unless the claimant's liberty is at risk. In addition, the panel reviewed the WCB file and found "no suggestion of ineffective assistance of counsel."

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