Summary:  In what the Law Court calls an “unusual case,” the Court affirmed the suspension of workers’ compensation benefits where the employee had been missing since March 2012. The hearing officer first ordered the employee’s benefits be paid into an escrow account pending an October 2012 hearing, and following the hearing, to suspend her benefits altogether pending her reappearance. Her attorney appealed on her behalf to the Appellate Division, which affirmed the hearing officer’s decision. The Law Court then granted the employee attorney’s petition for review.

Before the Law Court, the employee’s attorney argued the hearing officer lacked authority to grant the employer/insurer’s petition for review because it was not served “to the other parties named in the petition” (i.e., the employee herself) in accordance with 39-A M.R.S. § 307(2), and he had no authority to accept service on her behalf. However, the Law Court found that “in this highly unusual situation,” the hearing officer reasonably exercised her broad authority to interpret ambiguous language in the Act to find § 307(2) was satisfied by service on the long-missing employee’s attorney.

The Law Court also affirmed the panel’s decision to uphold the order that benefits be paid into an escrow account pending the October 2012 hearing, and suspended after the hearing pending the employee’s reappearance. The Court cited its previous recognition of “gray areas” in the Workers’ Compensation Act which “the Legislature knew would require ‘flexible and realistic solutions’”:

Here, by first segregating Johnson’s benefits for her future use, and then only suspending the payment of benefits with a proviso that they would be available retroactively if she later claimed them, the hearing officer protected both Home Depot’s legitimate interest in stopping payments that were not being received by its employee, and Johnson’s interest in collecting her full benefits if she is able to receive them in the future. That thoughtful and compassionate solution in light of these difficult circumstances is not error.

Summary:
The Appellate Division of the Maine Workers’ Compensation Board, en banc, issued a decision in Rena Daigle v. High View Manor. This decision addressed the issue of whether the use of stairs in a workplace, without more, is sufficient to establish that employment contributed a substantial risk of injury that was not otherwise present in the average employee’s ordinary life. In this case, the employee, a nurse with osteoarthritic knees, was descending a staircase at work at the end of a long shift, when, according to the Board’s fact findings, her left leg “gave way,” and she fell, suffering an injury to her right knee.

Hearing Officer Collier, writing for a unanimous panel, stated that the findings in the underlying decree that (1) the elevator was not available to the employee, (2) the lock-out of the elevator was beyond the employee’s control, (3) the building was three stories high, (4) the stairs were different from residential stairs, (5) the employee had worked a late shift, and (6) the length of the shift made the employee tired and sore, were sufficient to support the hearing officer’s conclusion that the employment objectively presented a risk of injury greater than in the average person’s everyday life.

Hearing Officer Greene wrote a concurrence addressing the correct standard of review applicable to issues of legal causation on appeal to the Appellate Division. Citing the Law Court’s decisions in Bryant v. Masters Machine, 444 A.2d 329 (Me. 1982) and Celentano v. Department of Corrections, 887 A.2d 512 (Me. 2005), Hearing Officer Greene emphasized that the standard of review with regard to mixed questions of fact and law, such as legal causation, is that the decision may not be disturbed if it “neither arbitrary nor without rational foundation.”

Employers and insurers should not take this decision to mean that the Hearing Officers, as a body, consider all workplace staircases to present an inherent risk greater than that presented in a person’s everyday life. All cases are fact specific, and factors such as the length of the staircase, the nature of the tread, and other means of moving between floors available to the employee, may certainly play a role in future staircase cases. However, this decision does demonstrate that appellants have a very high bar to clear in when they seek to overturn a hearing officer’s finding on an issue of legal causation.

View complete text of Rena Daigle v. High View Manor

Summary:
A competent evidence decision on work capacity. The Appellate Division found that the following constituted competent evidence for a finding that the employee had met her burden of production to show that work was unavailable to her as a result of her injury: (1) work search documents showing 40 employer contacts over three months; (2) the employee’s testimony regarding efforts to find work; (3) evidence that the employee worked with DOL Voc Rehab following her unsuccessful effort to find work; (4) the employee’s current plans to open a home business; (5) the employee’s testimony about her limited education and work background; and (6) the employee’s medical restrictions. On the other hand, the Appellate Division found that the employer’s submission of a labor market survey did not compel the Hearing Officer to find that the employer had met its “never shifting” burden of proof to show, on a more probable than not basis, that work within the employee’s physical capacity was available in the community.

View complete text of Belanger v. City of Lewiston

Summary:
Hearing Officer Greene decided that a worker at Subway had failed to meet her burden of proving a gradual work-related foot injury where the medical evidence did not establish that conditions of the employment increased the risk of injury. The Appellate Division found that “expert medical evidence is not always necessary to establish that conditions of employment increase the risk of injury” and, taking judicial notice of the fact that an average person in daily life does not stand or walk on hard surfaces for 90% of a daily 8-12 hour shift, vacated the Hearing Officer’s finding.

The Hearing Officer also found that the employee had failed to meet the burden of proof for §201(4) where the medical evidence established that the work activities more likely than not contributed to the chronic condition, but did not address the significance of the contribution, whether surgery was necessitated by work activities, or the apportionment of the relative contributions of daily life activities vs. work. The Appellate Division found that “this level of analysis is not required by the law,” citing Celentano v. Dep’t of Corr. and vacated the Hearing Officer’s finding on significant aggravation as well. The case was remanded on an unlitigated notice issue.

View complete text of Briggs v. H&K Stevens, Inc.

Summary:
Appellate Division vacates decree finding that tattoo artists who rented booth space were employees of the parlor owner.

View complete text of Workers’ Compensation Board Abuse Investigation Unit v. Donald J. Price, Jr. d/b/a Blind Faith Tattoos

Summary:
Panel finds that HO Goodnough did not err in finding that the EE was entitled to permanent impairment benefits under the former §56-B despite the fact that the Board had previously determined that the effects of the injury had ended. The Appellate Division focused its decision on whether the injury continued to produce incapacity and failed to address the employer’s argument that the Board had twice found the effects of the work injury ended.

View complete text of Stuart Seekins v. International Paper Co.

Summary:

In this case the issue was whether the EE’s ongoing symptoms were the continuing result of a work injury established by prior decree. Dr. Pier, in a 207, disagreed with an opinion by Dr. Phillips regarding the nature of the EE’s underlying condition that had been adopted by the prior decree. However, since Dr. Pier “entertained the validity” of Dr. Phillips’ opinions in determining whether the effects of the injury had ended, the panel found that it was not legal error for the HO to adopt Dr. Pier’s opinion.

However, the panel did remand the matter to the Board for further findings because the employer failed to file petitions on all of the dates of injury that were addressed by the prior decree. This is a reminder of the importance of filing petitions addressing all of the relevant dates of injury involved in a claim.

View complete text of Cheryl Jackson v. Pratt-Abbott Cleaners

Summary:

The Appellate Division affirmed a hearing officer’s decision imposing upon a construction company the obligation to secure the payment of compensation for all of its employees, despite the fact that some of the employees were predetermined to be independent contractors by the Board. The Appellate Division also concluded that there was competent evidence to support the hearing officer’s finding that certain of the individuals predetermined to be independent contractors were, in fact, employees. However, the Board found that, because the penalty provision of section 105–A(3) is ambiguous, a penalty cannot be imposed on an employer in the construction industry, particularly in a case where a predetermination of independent contractor status has been made.

View complete text of Nate Holyoke Builders, et al. v. WCB Abuse Investigation Unit

Summary:

H.O. Pelletier neither misconstrued the law nor applied it arbitrarily when he decided that the employer terminated the employee due to its good faith belief that he was being dishonest, rather than for asserting a claim under the Act.

View complete text of Bellefleur v. Fraser Paper

Summary:

Fine for failure to obtain workers’ compensation insurance upheld. Under Sec. 102(13) there was competent evidence for the hearing officer to find that drivers hired by a shuttle and courier service were employees and not independent contractors, as they did not own or lease their vehicles, did not maintain the vehicles, and did not incur operating expenses.

View complete text of WCB AIU v. Eric Ring d/b/a Lincoln Shuttle