Higgins v. H.P. Hood, Inc., et al.

Higgins suffered a compensable work injury to her right arm while working for H.P. Hood. The employer filed a Petition to Determine the Extent of Permanent Impairment. A Section 312 independent medical evaluation was performed and the examiner gave an opinion that the employee suffered from a 3% permanent impairment as a result of her work injury. Later, after the hearing had been held, the employee got an opinion from her treating physician that she suffered from 20% permanent impairment. The Hearing Officer accepted the 312 examiner’s opinion and established a 3% permanent impairment rating.

The 312 examiner’s report contained a number of errors. The report listed a different first name for the employee and did not list the correct employer, insurer or referring physician. The report also listed her treating physician as Dr. Mevin instead of Dr. Nevins and indicated a bone scan was performed when the employee had instead undergone a bone density test. The examiner incorrectly identified the doctor who performed EMG testing and listed the employee as “cooperative, fair historian” and “poorly cooperative” at the same time.

Based on these errors, the employee appealed the Hearing Officer’s decision which had adopted the 312 examiner’s opinion.

Court ruling:
The Court first noted that under 39-A M.R.S.A. §312(7), the Hearing Officer is required to adopt the medical findings of a 312 examiner unless there is clear and convincing medical evidence to the contrary in the record. In earlier opinions the Law Court had held that contrary medical evidence does not include evidence not considered by the 312 examiner. Although the employee had an opinion from her treating physician that she suffered from 20% permanent impairment, it did not constitute contrary medical evidence because it was not available until after the 312 examination.

The employee conceded that there was no clear and convincing medical evidence contrary to the examiner’s opinion but instead argued that due to the number of errors in the examiner’s report, it could not be considered competent medical evidence in the first place. The employee suggested that the report may be a composite of her and another employee that the 312 examiner evaluated. However, the Law Court found that the errors were mostly clerical and minor and had no impact on the examiner’s opinion regarding permanent impairment. The report was found to be competent evidence to support the Hearing Officer’s decision and the employee’s appeal was denied.

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