Dubois v. Madison Paper Co.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 1
Docket:	WCB-00-245
Argued:	September 10, 2001
Decided:	January 4, 2002

Panel:SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.{*}

DONALD A. DUBOIS

v.

MADISON PAPER CO. et al.

CALKINS, J.

	[¶1]  The employer, Madison Paper Co., and the insurer, Liberty
Mutual Insurance Co. (collectively "Madison"), appeal from a decision of a
hearing officer of the Workers' Compensation Board granting the petitions of
the employee, Donald Dubois, for medical and incapacity benefits.  Madison
contends that the hearing officer erred in rejecting the opinion of the
independent medical examiner (IME) who concluded that a neck condition
for which Dubois had surgery in 1999 was not caused by a 1980 work injury. 
We affirm the decision.

I. BACKGROUND

	[¶2]  Dubois was severely injured in 1980 while employed at Madison
when his right arm was pulled into a paper machine and crushed.  He
suffered a dislocated elbow, a laceration on his face, and lost several teeth
when his head was repeatedly banged against the machine.  Dubois
underwent two surgeries on his right arm and remained out of work for
approximately one year.  When he returned to employment at Madison, he
performed light duty security work for two years, and then returned to his
regular work.
	[¶3]  In 1998 Dubois began experiencing an incapacity to his right
hand and was diagnosed with severe spinal stenosis.  He underwent cervical
laminectomy surgery in February 1999, and he was totally incapacitated until
September 1999.  Dubois returned to employment in December 1999, and
he has sought compensation for the period he was out of work in 1999. 
	[¶4]  Dubois was treated by a neurologist, Dr. Sanzenbacher, who
concluded that Dubois' neck condition was related to his 1980 work injury.  
The hearing officer quoted from Dr. Sanzenbacher's opinion:

[Dubois] was evaluated and found to have severe cervical
spondylitic changes [causing] cervical spinal cord compression. 
Cervical spondylosis and degenerative disk disease are common,
but are not common to this extent.  When such severe changes
are seen there is usually a history of trauma.  It is my opinion
that this severe problem would not have caused cord
involvement if it hadn't been for the work related injury which
resulted in his head and neck being forced against the rollers.

	[¶5]  The hearing officer also relied upon the opinion of Dubois'
neurosurgeon, Dr. Mehalic, that Dubois' neck condition was caused, or
accelerated, by the 1980 work injury.  Dr. Mehalic agreed with Dr.
Sanzenbacher that Dubois' work injury contributed to his cervical stenosis
and caused premature degenerative changes of the cervical spine.  
	[¶6]  At Madison's request, the Workers' Compensation Board
appointed an IME pursuant to 39­p;A M.R.S.A. § 312 (2001).  The IME stated:

In summary, a review of the copy of the medical records
provided to me failed to disclose any evidence of neck and
radicular pain following the 1980 crush injury to Mr. Donald
Dubois' right upper extremity.  It is my opinion that from a
practical point of view it was nearly impossible that [the] injury
as described by . . . Dubois which took place in 1980 could
accelerate his pre-existing spondyloarthritic changes. . . .  From
all available information it seems certain that cervical problems
Mr. Donald Dubois started to experience in 1998 were not
causally related to his occupational activities at Madison Paper
Company.

	[¶7]  The hearing officer granted Dubois' petitions and rejected the
IME's evaluation.  The hearing officer specifically found that the medical
records and opinions of Drs. Sanzenbacher and Mehalic provided clear and
convincing evidence contrary to the IME's opinion.  The hearing officer
found that these two doctors, whose opinions she found persuasive, based
their opinions on a thorough understanding of Dubois' 1980 work injury,
whereas the IME's opinion showed less familiarity with the mechanics of
the injury.  Additionally, the hearing officer noted that the IME stated no
basis for his opinion that Dubois had "pre-existing spondyloarthritic
changes."  The hearing officer found that, in fact, there was no basis for this
conclusion because there were no medical records of Dubois' condition
before the 1980 work injury.

II. ANALYSIS

	[¶8]  Madison's sole argument on appeal is that the hearing officer
erred in rejecting the IME's opinion.  The weight to be accorded to an
IME's findings is prescribed by 39­p;A M.R.S.A. § 312(7) (2001), which
provides:

If the parties agree to a medical examiner, the examiner's
findings are binding.  If the board assigns an independent
medical examiner, the board shall adopt the medical findings of
the independent medical examiner unless there is clear and
convincing evidence to the contrary in the record that does not
support the medical findings.  Contrary evidence does not
include medical evidence not considered by the independent
medical examiner.  The board shall state in writing the reasons
for not accepting the medical findings of the independent
medical examiner.

	[¶9]  This is not a case in which the parties agreed to the IME, and
therefore, the IME's findings were not binding.  The issue presented to us is
the meaning of the phrase "clear and convincing evidence" as it is used in
section 312 and whether the hearing officer clearly erred in finding that
there was clear and convincing evidence contrary to the IME's medical
findings.
	[¶10]  Substantial case law exists interpreting the standard of clear
and convincing evidence outside the workers' compensation context.  We
defined the clear and convincing standard in Taylor v. Commissioner of
Mental Health & Mental Retardation, 481 A.2d 139 (Me. 1984), as an
intermediate standard under which "the party with the burden of
persuasion may prevail only if he can place in the ultimate factfinder an
abiding conviction that the truth of his factual contentions are highly
probable."  Id. at 153 (internal quotation marks and brackets omitted).  
	[¶11]  In an appeal from a trial court's factual finding when the burden
of proof is clear and convincing evidence, we look to "whether the
factfinder could reasonably have been persuaded that the required factual
finding was or was not proved to be highly probable."  Id.  We have applied
this standard to the review of findings made with the clear and convincing
evidence burden in a variety of contexts.  E.g., In re Charles G., 2001 ME 3,
¶ 5, 763 A.2d 1163, 1166 (termination of parental rights); Baizley v. Baizley,
1999 ME 115, ¶ 8, 734 A.2d 1117, 1119 (imposition of constructive trust
for constructive fraud); Mariello v. Giguere, 667 A.2d 588, 590 (Me. 1995)
(common law fraudulent misrepresentation); Fitzgerald v. Gamester, 658
A.2d 1065, 1070 (Me. 1995) (punitive damages); Davis v. Mitchell, 628 A.2d
657, 661 (Me. 1993) (establishment of boundary by acquiescence); Dolloff v.
Dolloff, 593 A.2d 1044, 1045 (Me. 1991) (undue influence); Estate of
Richard, 556 A.2d 1091, 1092 (Me. 1989) (existence of will); Lietz v. Berry,
543 A.2d 367, 368 n.1 (Me. 1988) (mutual mistake); In re Debra B., 495
A.2d 781, 783 (Me. 1985) (involuntary sterilization). 
	[¶12]  Madison contends that these decisions in appeals from trial
courts have limited applicability to the interpretation of section 312 of the
Workers' Compensation Act.  It suggests that the requirement of clear and
convincing evidence must be read in the context of the purpose to prevent a
"battle of the experts" in workers' compensation cases.{2}  Madison contends
that, in order to reject the findings of an IME, the hearing officer must find
that the IME's opinion is based on medical or scientific error or presents a
relevant and obvious medical history error.  Madison, in effect, asks us to
rewrite, or reinterpret, the phrase "clear and convincing evidence" from its
generally accepted meaning in legal parlance.  We decline this invitation.
	[¶13]  The phrase "clear and convincing evidence" is a legal term of
art with a well-established meaning.{3}  The term is not ambiguous, and it is
not necessary to go beyond the statutory language to discover its meaning, 
Furthermore, neither the purpose of the statute nor its legislative history
compels us to adopt a unique interpretation of the phrase as it is used in
section 312(7).  We assume the Legislature intended the well-established
meaning of a well-known term.  	
	[¶14]  Therefore, we look to whether the hearing officer "could
reasonably have been persuaded that the required factual finding was or was
not proved to be highly probable."  Taylor, 481 A.2d at 153.  For purposes of
section 312, this means that we determine whether the hearing officer
could have been reasonably persuaded by the contrary medical evidence that
it was highly probable that the record did not support the IME's medical
findings.
	[¶15]  Section 312(7) requires that the hearing officer "state in
writing the reasons for not accepting the medical findings of the
independent medical examiner."  The hearing officer gave specific reasons
for rejecting the IME's opinion and recited the clear and convincing
evidence that was contrary to the IME's opinion.  In addition to finding the
opinions of Drs. Sanzenbacher and Mehalic{4} more persuasive than that of the
IME, the hearing officer also found that the IME, in expressing his findings
in his report, did not appreciate the severity of the 1980 injury.  Moreover,
the hearing officer found unconvincing the IME's finding that Dubois
suffered pre-existing spondyloarthritic changes, when the record contained
no evidence prior to the 1980 injury to support such a finding. 
	[¶16]  These reasons, particularly the last reason above, were
sufficient for a factfinder to reasonably determine, from the contrary
medical evidence, that it was highly probable that the IME's medical
findings were not supported by the record.  We give deference to the
findings of hearing officers, particularly with regard to medical/factual
issues.  See Mathieu v. Bath Iron Works, 667 A.2d 862, 864 (Me. 1995).  The
hearing officer's findings are adequate in the present case to satisfy the
clear and convincing evidence standard.{5} 
	The entry is:

Decision of the hearing officer of the Worker's
Compensation Board affirmed.

Attorney for employee:

Wayne T. Whitney, Esq. (orally)
McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A.
P O Box 5000
Topsham, ME 04086-5000

Attorneys for employer

Thomas R. Kelly, Esq. (orally)
Darby C. Urey, Esq.
Lawrence B. Goodglass, Esq.
Robinson, Kriger & McCallum
P O Box 586
Portland, ME 04112-0568

FOOTNOTES******************************** {*} Wathen, C.J., participated in the initial conference but resigned before this opinion was adopted. {1} . There is evidence in the legislative record to support Madison's assertion of a legislative intent to prevent "doctor shopping," or a "battle of the experts." See generally VII Legis. Rec. H-34, H-61, H-69-70, H-96 (115th Legis. 3d Spec. Sess. 1992). {2} . The "clear and convincing evidence" standard is also required to establish the compensability of mental injuries. See 39-A M.R.S.A. § 201(3) (2001). {4} . Section 312(7) provides that the "[c]ontrary evidence does not include medical evidence not considered by the independent medical examiner." Although Dr. Mehalic provided his opinion after the IME report, and therefore his opinion could not have been considered by the IME, Madison failed to raise this issue before the hearing officer or on appeal, and, therefore, it has not been preserved. {5} . We reject Madison's contention that, even if the clear and convincing evidence standard is not accorded special meaning, the hearing officer misapplied the standard because she merely found the opinions of Dubois' treating doctors more persuasive.