ALJ can determine whether Division IME’s report or subsequent deposition contains the Division IME’s actual findings

Claimant sustained an injury to her left arm in 2014 and developed pain in her chest and shoulder.  She had prior auto accidents wherein she injured her neck and shoulder.  She treated for the work injury with Dr. Hughes, who placed her at MMI and assigned an upper extremity rating for which Respondents filed an FAL.

Claimant obtained a report from Dr. Richard Saunders supporting she had thoracic outlet syndrome (TOS) and proceeded to a Division IME. The Division IME originally concluded the claimant had TOS related to the injury. The Respondents disputed the Division IME’s opinions and set the matter for hearing.  In the interim, Respondents deposed the Division IME, who but reversed his prior opinion in his deposition testimony and concluded that claimant did not have work related TOS. The ALJ determined that the opinion of the Division IME during his deposition considered additional evidence, and therefore the opinion expressed during the deposition, not in his original report was the actual binding opinion.

The ICAO affirmed the ALJ, noting that if a Division IME issued conflicting or ambiguous opinions concerning MMI status, it is the ALJ’s province to determine the Division IME’s true opinion as a matter of fact.  Once the ALJ determines the opinion, the ALJ then assigns the burden of proof to overcome the Division IME opinion, which in this case was properly assigned to the Claimant.

Gagnon v. Westward Dough Operating Co d/b/a Krispy Crème, W.C. No. 4-971-646-03 (February 6, 2018)

Would you like to know more? Contact Eric J. Pollart at or 720.488.9586


From the February 2018 Pollart Miller Newsletter