Michael Boulanger v. S.D. Warren Company
January 14, 2022
CategoriesMedical Evidence Procedure Medical Evidence Procedure
comparative medical evidence
Summary from the Troubh Heisler Attorneys
Boulanger v. S.D. Warren (attached) - While working at SD Warren, Boulanger injured his left shoulder in 1989, his right shoulder in 1998, and his wrist in 2002. In a 2016 decree, the Board found Boulanger partially incapacitated due to the three injuries. The parties filed multiple petitions thereafter and, six days before the hearing, Boulanger produced a new psychiatric report from Dr. Voss, stating he had no work capacity. Based on Dr. Voss's report and the office notes of Boulanger's PCP, Judge Jerome awarded total incapacity benefits based on all three injuries.
The 1989 and 1998 injury insurers appealed, arguing that there was no comparative medical evidence of a change in circumstances since the 2016 decree, and that the Voss report should have been excluded because it was untimely. The 1998 insurer also argued that there was no competent evidence of a causal connection between the 1998 injury and Boulanger's psychological condition. The appellate panel held that the facts inferred from the medical records were sufficient to support a finding of a change in circumstances by comparative medical evidence.
The panel also held that Warren waived its objection to Dr. Voss's report under section 309(3), which requires service of medical reports at least 14 days prior to hearing, because its timeliness objection at hearing cited the Board Rule allowing the judge to exclude exhibits not exchanged at least seven days prior to hearing, but it did not specifically cite section 309(3) until it filed a motion for findings, which was too late. The panel also held that it was not an abuse of discretion to admit the Voss report despite it not being served at least seven days prior to hearing. The panel further held that any error in admitting the Voss report was harmless because the PCP office notes constituted sufficient evidence of a change in circumstances and total incapacity. Finally, the panel held that there was sufficient evidence to establish a causal connection between the 1998 injury and the employee's psychological condition.