Donald Pelkey v. W.E. Aubuchon Co. Inc.

Insurance Company

Citizens Insurance Co. of America

Date Decided

June 6, 2022

Panel Members

Elizabeth Elwin

David Hirtle

Evelyn Knopf


Pre-Existing Injury Partial Benefits / Refusal of Employment Procedure Mental Stress Injury Medical Evidence Medical Evidence Mental Stress Injury Partial Benefits / Refusal of Employment Pre-Existing Injury Procedure


File Size

183 KB


Summary from the Troubh Heisler Attorneys

Donald Pelkey v. W.E. Aubuchon Co.(attached)- Pelkey was store manager for Aubuchon in Portland and injured his knee at work, aggravating prior injuries. After surgery he returned to work with limitations but felt his co-workers and supervisor were mistreating him due to his work restrictions. He had a panic attack while driving to work and stopped working thereafter. He asked Aubuchon to transfer him to the Buxton store near his home, but they offered him a Naples job instead. Pelkey declined, as it was too far to drive with his knee. He also claimed a disabling psychological sequela to his knee injury, and he petitioned for total incapacity benefits.

Just before the third hearing in the case, Pelkey saw an LCPC counselor, whose report supported his sequela and disability claims. At the final hearing, the parties agreed to get the report, and Judge Stovall accepted it into evidence, granted Pelkey’s petitions, and ordered payment of ongoing partial benefits based on an imputed earning capacity. Aubuchon argued that Pelkey refused suitable work without cause under §214(1)(A), but Judge Stovall found Pelkey’s stated reasons sufficient. Aubuchon argued that §309(3) barred the counselor’s opinion because a LCPC is not in that statutes list of credentialed providers, but Judge Stovall found that section did not restrict LCPC written reports, and the opinion was otherwise admissible. Aubuchon argued that the testimony regarding its employees’ mistreatment of Pelkey should not have been considered, as Pelkey’s later Discrimination petition was not consolidated with the petitions at issue. Judge Stovall found the evidence relevant to the psychological sequela claim. Aubuchon argued that, with Pelkey’s pre-existing mental health issues, §201(4) applied, but Judge Stovall disagreed.

Aubuchon appealed, but the Appellate Division panel upheld the decision. The panel cited other cases of employees reasonably refusing work under §214(1)(A), and they found the decision in this case rationally based. The panel reviewed §309(3), which allows unsworn testimony only of medical doctors, osteopaths, psychologists, chiropractors, nurse practitioners, and physicians’ assistants – not LCPCs. Since the LCPC report in this case passed the lower §309(2) threshold of reasonable reliability, the judge properly admitted it into evidence. The panel agreed that §201(4) applies only to physical injuries, not to mental health issues. Finally, the panel agreed that the evidence Pelkey presented of his mistreatment at work was relevant to the pending issues of his mental health.

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