Dunn-Morrell v. Viking Motors

Insurance Company

MADA Workers' Comp Trust

Date Decided

April 19, 2017

Panel Members

David Hirtle

Tom Pelletier

Mike Stovall


Board IME


Back Shoulder IME§312 Non-Work Related Clear and Convincing Evidence

File Size

246 KB


Summary from the Troubh Heisler Attorneys

A 2007 decree granted Dunn-Morrell’s petition awarding protection of the act for a 2003 low back and right shoulder injury. The symptoms included right shoulder, sacroiliac, gluteal and pelvic pain. In 2010 a sacroiliac fusion surgery was performed and in 2013 surgery at L4-5 was completed.

On the Viking’s petition for review and Dunn-Morrell’s petition for payment of medical expenses seeking payment of the two surgeries, Dr. Donovan issued a § 312 exam report finding that the effects of the right shoulder injury had ended, the ongoing sacroiliac pain was related to the work injury but that the fusion surgery was not proper, and that the ongoing left leg pain was not related to the work injury. Thus, the surgery at L4-5 was not related.

The ALJ accepted Dr. Donovan’s conclusion that the effects of the right shoulder injury had ended but found clear and convincing evidence to the contrary of the 312 opinion that the sacroiliac fusion was not proper and that the left leg pain was not related to the injury. The Appellate Panel addressed the standard of review where the ALJ rejects the opinion of the 312 examiner and looks to determine if the “ALJ could have been reasonably persuaded that the required factual finding was or was not proved to be highly probable.”

Because Dr. Donovan based his opinion that the left leg symptoms were not related to the injury on his belief that the symptoms did not arise until 2007, but the medical record disclosed the symptoms began in 2003, there was clear and convincing medical evidence to the contrary. Further, because the ALJ is given deference on credibility and he found Dunn-Morrell’s description of how the injury affected her low back persuasive, and because the contrary medical opinions were based on that credible testimony, the ALJ was permitted to conclude it was highly probable the continuing left leg symptoms were related to the work injury. As such, the Division upheld the ALJ’s ruling that there was sufficient evidence to overcome the Section 312 opinion.

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