Bartlett v. Nestle Waters North America, Inc., 033121 MEWC, 21-14

Case DateMarch 31, 2021
CourtMaine
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...

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