Matthew Ormonde, Employee, Choice One Communications, Employer, Federal Insurance Co., Insurer

Matthew Ormonde (plaintiff) worked for Choice One Communications installing heavy telephone equipment. In September 2002, Ormonde injured his back at work while attempting to lift equipment onto a truck. Choice One’s insurer, Federal Insurance Company (Federal) (defendant), began paying Ormonde total-incapacity workers’-compensation benefits. In early 2004, Federal sought to discontinue or modify Ormonde’s benefits payments, alleging that Ormonde had been working for other companies while collecting total-incapacity benefits. An administrative-law judge (ALJ) found that Ormonde had a $600 weekly earning capacity and ordered Federal to pay partial-incapacity benefits effective July 1, 2004. Ormonde and Federal both appealed. Ormonde sought total-incapacity benefits from June 30, 2004, through September 10, 2005, plus partial-incapacity benefits after that point. In August 2004, Ormonde underwent an independent medical exam by Dr. Richard Warnock as part of the appeal. Warnock found that Ormonde had degenerative back problems causally related to Ormonde’s work injury. Warnock stated that, as of the exam date, Ormonde was permanently partially disabled. However, Warnock’s report did not indicate the extent of Ormonde’s disability prior to the exam. At a January 2006 hearing on the appeal, the ALJ admitted Warnock’s report into evidence. The ALJ also admitted reports from Ormonde’s and Federal’s medical experts regarding the extent, causation, and consequences of Ormonde’s injury. Ormonde did not testify regarding any pain or physical limitations he experienced between early 2004 and Warnock’s exam. In addition to the medical reports, the ALJ received evidence regarding Federal’s allegations that Ormonde had been working while receiving total-incapacity benefits, including testimony from Ormonde and other witnesses who denied that Ormonde had been working. The ALJ ultimately adopted Warnock’s opinions regarding Ormonde’s condition, causation, and partial disability. The ALJ did not adopt the other medical opinions. The ALJ also credited the testimony that Ormonde had not been working while receiving total-incapacity benefits. The ALJ found that Ormonde had been totally disabled until the date of Warnock’s exam and continued to be partially disabled after that date. The ALJ thus ordered Federal to pay total-incapacity benefits from the date of injury to the date of Warnock’s exam, partial-incapacity benefits based on a $600 earning capacity from the exam date to October 9, 2006, and ongoing partial-incapacity benefits based on Ormonde’s actual wages starting October 10, 2006. Federal appealed.