Pennington v. RC Moore
MMTA Workers' Compensation Trust
September 22, 2020
Truck driver Back Slip and fall Multiple Injuries §312 IME
Summary from the Troubh Heisler Attorneys
Pennington was a truckdriver who injured his back in 2011 when he slipped and fell on ice, aggravating his pre-existing low back condition. He filed petitions, but Dr. Donovan's §312 IME was "unfavorable" to him, so Pennington dropped his petitions. He then got new counsel who filed petitions alleging both the acute 2011 injury and a gradual injury in 2013 from Pennington's years of work for RC Moore.
Pennington asked for a new §312 IME with a different examiner, and Moore objected, arguing that Maine law required the board to stay with the same examiner, even though Dr. Donovan refused to allow Pennington's new attorney to depose him. Judge Stovall allowed the new §312 IME with Dr. Bradford, whose report confirmed the gradual injury. Regarding the acute injury, Judge Stovall found clear and convincing evidence to the contrary of Dr. Donovan's opinion, citing the medical reports of the employee's treating physicians. He therefore granted Pennington's petitions on both DOIs and ordered total benefits.
Moore appealed, but the Appellate Division upheld Judge Stovall's findings. The panel held that Judge Stovall was acting within his discretion to order a new §312 exam on the gradual 2013 injury, as that was neither claimed in the initial litigation nor covered by Dr. Donovan's IME. The panel also held that Judge Stovall properly discounted Dr. Donovan's IME opinions that the acute 2011 injury was only temporary.