Sandra Harvey v. Affiliated Laboratory, Inc.
June 14, 2022
CategoriesBoard IME Procedure Board IME Procedure
Summary from the Troubh Heisler Attorneys
Harvey v. Affiliated Laboratory, Inc.- The ALJ issued an order which sustained Harvey’s objection to Affiliated’ s request to expand the search for a board independent medical examiner when no appropriate examiner from the board’s sec. 312 list was available. Prior to a final decree Affiliated filed an interlocutory appeal of this order, and Harvey moved the Appellate Division to dismiss the appeal because no exception applied which would allow an immediate appeal. In response Affiliated argued that its appeal fell within the “death knell” exception because its right to have an opinion from a board IME would be “irreparably lost” if review is delayed until final judgment because it will not have an effective remedy if it is forced to litigate the case without the IME.
The Appellate Division dismissed the appeal. It recognized it previously construed Board Rule Ch. 13, sec. 3 to allow for interlocutory appeals that fit within one of the recognized exceptions to the final judgment rule. It rejected Affiliated’ s argument that its appeal fell into the “death knell” exception because it once a final decree is issued it may appeal any earlier ruling that was properly opposed at the time.