COA: Worker's comp board may overrule medical examiner

May 19, 2016

The Indiana Court of Appeals affirmed a Worker’s Compensation Board decision that a man did not sustain a cervical injury as a result of a workplace accident. The board was not required to follow treatment recommendations of an independent medical examiner who saw the man after his employer notified him of its intent to terminate temporary total disability benefits.

Steven Bush was involved in a car accident in 2005 which injured his back and lower spine. In 2010 he was involved in a workplace accident that injured his back as well. Doctors who examined Bush after his 2010 accident confirmed his injury as lumbar spondylosis. Bush asked for an independent medical examination and the worker’s compensation board appointed Rick Sasso.

Sasso reported Bush’s symptoms were the result of an on-the-job injury and recommended an MRI to his cervical and lumbar spine. After the MRI, Sasso said Bush had cervical problems including a significant disc bulge. Bush’s employer filed an objection to the examination, and hearings were conducted in front of a member of the Indiana Workers’ Compensation Board and then the full board, both of which said he did not get the injury to his cervical spine from the workplace accident. Bush appealed.

Bush cited Indiana Code 22-3-3-7(c), which governs the payment of total disability benefits. He argued that read as a whole, the code says that an independent medical examiner’s opinion is statutorily correct and the board must follow that decision. The COA disagreed in an opinion written by Judge James Kirsch, disagreed.

“If, as Bush suggests, the IME’s opinion presumptively is correct and is to be followed, then there would be no need for a hearing. The plain language of the statue establishes the right of either party to disagree with the opinion of the independent medical examiner, and in such cases, that party may request a hearing,” Kirsch wrote.

Bush also claimed there was no evidence to refute Sasso’s claims of cervical spine injury, but Kirsch wrote there is plenty of evidence. Bush did not complain of cervical issues following the 2010 accident and no doctor diagnosed that injury.

The case is Steven M. Bush v Robinson Engineering & Oil, Co. Inc., 93A02-1508-EX-1299.



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