Hewes v. Hannaford Bros.
December 11, 2020
CategoriesBoard IME Notice
mistake of fact
Summary from the Troubh Heisler Attorneys
Hewes tore his left shoulder rotator cuff at GNP and had several surgeries to repair it. He then worked for Hannaford and Marden’s stocking shelves and again tore his rotator cuff, requiring another surgery and extensive lost time, and GNP paid Hewes additional benefits.
GNP had Dr. Curtis examine Hewes per §207, and he opined that GNP’s injury was responsible for 50% of Hewes’ current condition, and Hannaford and Marden’s were each 25% responsible. Hewes and GNP then filed petitions against Hannaford and Marden’s, both of which denied benefits based on late notice and causation. Dr. Donovan’s §312 IME found that GNP was 60% responsible and Hannaford and Marden’s were each 20% responsible, and Judge Hirtle adopted those findings and granted Hewes’ and GNP’s petitions.
Judge Hirtle excused Hewes’ late notice of injury to Hannaford due to Hewes’ “mistake of fact”: although Hewes knew stocking shelves increased his shoulder pain, he thought it was just his old GNP injury; he did not know he had a new compensable injury at Hannaford until he got Dr. Curtis’s report.
Hannaford appealed, but the Appellate Division panelists upheld the decision. They determined that, although Dr. Donovan’s report may have contained an error, Judge Hirtle could reasonably have found that it did not rise to the level of “clear and convincing evidence to the contrary,” especially since the IME’s opinions nearly matched Dr. Curtis’s. The panel also declined to disturb Judge Hirtle’s factual findings regarding notice, based on Hewes’ credibility.