RAY BARTLETT (Appellee)
v.
NESTLE WATERS NORTH AMERICA, INC. (Appellant)
And
SEDGWICK (Insurer)
Decision No. 21-14
No. A.D. 18-0049
Maine Workers Compensation Decisions
State of Maine Workers’ Compensation Board
March 31, 2021
Conference held: June 12, 2019
Attorney for Appellant: Elizabeth Connellan Smith, Esq.
VERRILL DANA, LLP
Attorney for Appellee: Alexander F. McCann, Esq.
PANEL
MEMBERS: Administrative Law Judges Elwin, Collier, and
Stovall
Stovall, Administrative Law Judge.
[¶1]
Nestle Waters North America, Inc., appeals from a decision of
a Workers’ Compensation Board Administrative Law Judge
(Goodnough, ALJ) that granted Ray
Bartlett’s Petition for Review. Nestle contends that
the ALJ abused his discretion and violated due process by
denying (1) its second request to depose the independent
medical examiner (IME) appointed pursuant to 39-A M.R.S.A.
§ 312 (Pamph. 2020); (2) its request to have the IME
review physical therapy notes; and (3) its request to enter
the physical therapy notes into evidence. Nestle also
contends the ALJ erred by adopting the IME’s opinion
regarding Mr. Bartlett’s incapacity level. We affirm
the decision.
I.
BACKGROUND
[¶2]
Ray Bartlett began working for Nestle Waters North America,
Inc., in 2005 as a tractor-trailer driver. His job was to
deliver large quantities of water to various locations in New
England. Mr. Bartlett alleged that he sustained a
work-related injury to his cervical spine on August 21, 2016,
when he wrenched his neck by bumping his head on the
underbody of a tractor-trailer. Upon Nestle’s request,
Mr. Bartlett underwent an independent medical examination
pursuant to 39-A M.R.S.A. § 312 by Matthew J. Donovan,
M.D. Dr. Donovan issued his report on November 28, 2017.
[¶3]
A hearing was held on February 2, 2018. The record was kept
open over Mr. Bartlett’s objection to allow Nestle an
opportunity to provide Dr. Donovan with an X-ray film and the
radiologist report, after which Dr. Donovan issued a
supplemental report. At a subsequent conference of counsel,
the ALJ granted Nestle’s request to depose Dr. Donovan
over Mr. Bartlett’s objection. However, on May 30,
2018, the day before the deposition was to occur, Nestle
unilaterally canceled the deposition over Mr.
Bartlett’s objection and without board approval. Nestle
canceled the deposition because it wanted more time to
provide Dr. Donovan with additional physical therapy notes.
Since the beginning of the litigation, Nestle had been in
possession of Mr. Bartlett’s primary care
provider’s medical records indicating that Mr. Bartlett
had been referred to physical therapy.
[¶4]
At a second conference of counsel held on June 4, 2018,
Nestle renewed its request to depose Dr. Donovan. Mr.
Bartlett objected to this request based on delay. On June 22,
2018, the ALJ issued an order denying Nestle’s second
request to depose Dr. Donovan. The ALJ also denied
Nestle’s request to have Dr. Donovan review the
physical therapy notes and to supplement the record with the
physical therapy notes. While Dr. Donovan did not have the
physical therapy notes, the ALJ noted that he did have the
medical records indicating that Mr. Bartlett had been
referred to physical therapy due to ongoing neck pain before
the work injury.
[¶5]
Based in part on Dr. Donovan’s medical findings, the
ALJ found that Mr. Bartlett sustained a...