Court of Appeals finds Indiana Worker’s Compensation Board Not Bound by the IME

In a case heard earlier this year, the Indiana Court of Appeals found that the Indiana Worker’s Compensation Board and its single hearing member was not required to follow the recommendations of a Board appointed independent medical examiner.

In Steven Bush v. Robinson Engineering & Oil, Co. Inc, 54 N.E.3d 1073 (2016), the employee appealed an order by the Board finding that the employee did not sustain a work-related cervical injury.  It was undisputed that the employee suffered a compensable work-related lower back injury on August 13, 2010.  The employee was diagnosed with lumbar spondylosis and the treating physician opined that he had suffered an “exacerbation of an existing injury.”  The employer authorized medical treatment and paid temporary total disability (“TTD”) benefits until April of 2013, when the treating physician placed the employee at maximum medical improvement (“MMI”).

Shortly thereafter, the employer provided notice of its intention to terminate TTD benefits.  The employee disagreed with the termination and filed its written objection with the Board.  Pursuant to Indiana Code section 22-3-3-7, when such a disagreement cannot be resolved by the parties, the Board “shall immediately arrange for an evaluation of the employee by an independent medical examiner.”  Accordingly, the employee underwent an independent medical examination (“IME”) with a Board appointed physician.

The independent medical examiner opined that the employee’s continued symptoms were related to the August 2010 accident.  Further, he opined that the employee was not at MMI and required additional treatment including MRI studies of the lumbar and cervical spine.  Based on the MRI findings, the independent medical examiner recommended further evaluation by a spine surgeon with expertise in cervical spine disorders.  The employer disagreed with the IME opinions related to the cervical spine and properly applied for a hearing before the Board.

At hearing, the employer presented evidence that the employee never complained of cervical injuries during his recorded statement or in his medical records prior to the IME.  Despite the opinions of the IME physician, the single hearing member found for the employee and opined that he had reached MMI with respect to any work-related lumbar injuries.  With regard to the cervical spine, the single hearing member found that the employee failed to prove that he sustained any injuries to his cervical spine as a result of the August 2010 accident.  The Full Board affirmed the decision and employee appealed.

On appeal, the employee argued that the Board substituted its own medical judgment and erroneously disregarded the opinions from the Board appointed IME.  Further, the employee argued that the language of the Indiana Worker’s Compensation Act created a presumption that the Board appointed independent medical examiner’s opinions were “presumed correct, and if a party does not present contrary evidence to rebut that presumption, the independent medical examiner’s recommendations must be followed.”  The Court of Appeals disagreed with the employee and found that the Board was not bound by the findings of an independent medical examiner and can rely on other evidence in determining the credibility of the independent medical examiner.

Thanks to attorney Dane Kurth for the summary of this case.  Dane works out of the Champaign and Indianapolis offices of Inman and Fitzgibbons and can be reached at dkurth@inmanfitzgibbons.com.

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