Background:
Verizon voluntarily paid Kevin Foley total incapacity benefits following an April 26, 2003 work injury. The following year Foley retired from Verizon. He accepted a severance/pension package and received a one time, lump sum payment. Verizon took an offset pursuant to 39-A M.R.S.A. §221 (2006) and because the offset was greater than the employee’s compensation rate, Verizon unilaterally stopped paying the employee’s weekly workers’ compensation benefits.

The employee contacted the claims adjuster after his benefits were discontinued. Employee counsel sent two letters to Verizon on August 5th and September 23, 2004 contesting the discontinuance. Verizon filed a Notice of Controversy on October 7th. Foley filed a Petition for Award contesting the coordination of benefits. He also argued that Verizon had violated the 14-day rule because Verizon did not controvert the claim within 14 days of his telephone call to the adjuster or the August 5, 2004 letter from his attorney. Finally, he argued Verizon was not entitled to suspend his benefits without filing a petition or a 21-day discontinuance under 39-A M.R.S.A. §221(2006).

The Hearing Officer found there was no violation of the 14-day rule, finding the employee’s telephone call to the adjuster, checking on the status of his claim, was not an “outright assertion of a claim for benefits” and the copy of the August 5, 2004 letter submitted into evidence was unreadable. The Hearing Officer also found that 39-A M.R.S.A. §221 entitles the employer to an immediate coordination of workers’ compensation benefits without needing to file a petition or 21-day discontinuance. Finally, the Hearing Officer treated the lump sum pension benefit as though it were being received in weekly installments and allowed Verizon to offset those amounts against Foley’s weekly benefits. The employee appealed all three determinations.

Court ruling:

The Law Court upheld all aspects of the Hearing Officer’s decision. The Hearing Officer’s findings that the employee’s telephone call to the claims adjuster did not constitute an assertion of a claim for benefits and that the August 5, 2004 letter did not constitute an assertion of a claim because it was unreadable are factual findings that the Law Court will not disturb on appeal. The Law Court also reaffirmed that the coordination of benefits section is an exception to the general rule under Section 205(9)(B)(1) that payments made pursuant to an award or compensation payment scheme may only be reduced or suspended through the filing of a petition or a 21-day discontinuance.

The parties did not dispute that Verizon was entitled to an offset for the employee’s retirement/pension benefits. The disagreement was over the method to be used in determining the amount of the offset. The employee contended that either Verizon was entitled to an offset only in the week in which the lump sum was received or that the lump sum should be spread out over his remaining life expectancy. The employer argued that the pension/ retirement lump sum payment should be treated the same as a recovery under a third-party settlement, which entitles the employer to a holiday on the payment of weekly benefits until such time as the benefits that would have been received equal the amount of the settlement amount. The Law Court agreed with the Hearing Officer that these methods were not consistent with the intent or language of the Act. The Court agreed with the Hearing Officer’s method of using the monthly pension amount the employee would have received under the plan but for his election to take a one time lump sum payment.

View complete text of Foley v. Verizon, et al.

Background:
Higgins suffered a compensable work injury to her right arm while working for H.P. Hood. The employer filed a Petition to Determine the Extent of Permanent Impairment. A Section 312 independent medical evaluation was performed and the examiner gave an opinion that the employee suffered from a 3% permanent impairment as a result of her work injury. Later, after the hearing had been held, the employee got an opinion from her treating physician that she suffered from 20% permanent impairment. The Hearing Officer accepted the 312 examiner’s opinion and established a 3% permanent impairment rating.

The 312 examiner’s report contained a number of errors. The report listed a different first name for the employee and did not list the correct employer, insurer or referring physician. The report also listed her treating physician as Dr. Mevin instead of Dr. Nevins and indicated a bone scan was performed when the employee had instead undergone a bone density test. The examiner incorrectly identified the doctor who performed EMG testing and listed the employee as “cooperative, fair historian” and “poorly cooperative” at the same time.

Based on these errors, the employee appealed the Hearing Officer’s decision which had adopted the 312 examiner’s opinion.

Court ruling:
The Court first noted that under 39-A M.R.S.A. §312(7), the Hearing Officer is required to adopt the medical findings of a 312 examiner unless there is clear and convincing medical evidence to the contrary in the record. In earlier opinions the Law Court had held that contrary medical evidence does not include evidence not considered by the 312 examiner. Although the employee had an opinion from her treating physician that she suffered from 20% permanent impairment, it did not constitute contrary medical evidence because it was not available until after the 312 examination.

The employee conceded that there was no clear and convincing medical evidence contrary to the examiner’s opinion but instead argued that due to the number of errors in the examiner’s report, it could not be considered competent medical evidence in the first place. The employee suggested that the report may be a composite of her and another employee that the 312 examiner evaluated. However, the Law Court found that the errors were mostly clerical and minor and had no impact on the examiner’s opinion regarding permanent impairment. The report was found to be competent evidence to support the Hearing Officer’s decision and the employee’s appeal was denied.

View complete text of Higgins v. H.P. Hood, Inc., et al.

Background:
The employee suffered a back injury in 1991 while working as a carpenter for Messer. He began working for Brady Construction as a carpenter in 1994 and in 2002 suffered injuries to his knee and back. He returned to work for Brady in 2003 as an estimator and earned a higher average weekly wage than he did working for Messer as a carpenter. The Hearing Officer found that 80% of the employee’s incapacity was due to the 1991 Messer injury and 20% due to the 2002 Brady knee injury. The Hearing Officer awarded 100% ongoing partial benefits and ordered Brady to initially pay the full benefit based on the 2002 higher average weekly wage but went on to order Messer to reimburse Brady in an amount equal to the 1991 compensation rate.

Messer appealed.

Court ruling:

The Court ruled that under the facts of this case, Messer was not responsible to reimburse Brady for its apportioned share of the benefits because the employee’s post-injury earning capacity exceeded the average weekly wage attributable to Messer’s date of injury. The Court noted that the apportionment statute is based on principles of subrogation. The most recent insurer has the initial responsibility to pay the employee and then is subrogated to the employee’s rights against other insurers. See 39-A M.R.S.A. §354(2), (3) (2006). Under this framework, the most recent insurer has no right to reimbursement from other insurers unless the employee has that right.

The statute in effect at the time of the Messer injury requires the employer to pay the employee two-thirds of the difference, due to the injury, between the employee’s pre-injury average weekly wage and the average weekly wage he is able to earn after the injury. See 39 M.R.S. §55-B. Because Trottier’s post-injury average weekly wage exceeded his average weekly wage at the time of the Messer injury, Trottier was not entitled to weekly benefits from Messer. Because Trottier had no right to benefits from Messer, and because Brady was subrogated to Trottier’s rights, Brady had no right to reimbursement from Messer either. The Hearing Officer’s decision was therefore vacated and remanded for further proceedings consistent with the Court’s opinion.

View complete text of Trottier v. Thomas Messer Builders, et al.

Background:
Fournier was injured after a slip and fall on an external staircase when returning from an unpaid lunch break. Aetna leased space on the second through fifth floors of the building, but did not own or maintain the building or the staircase. Aetna argued that this case was subject to the “going and coming” rule which provides that injuries occurring off the employer’s premises while an employee is coming to or from work is not, without more, compensable. The hearing officer found that the injury arose out of and in the course of employment because the injury occurred on Aetna’s premises, specifically finding that the outside staircase was part of the common area of the office building. Aetna appealed. 

Court ruling: 
The Law Court, citing Professor Larson, agreed that any common area or conveyance over which the employee has a right of passage is part of the employer’s premises even if the employer does not own, lease or maintain the area or conveyance. The Court then upheld the hearing officer’s opinion that the injury arose out of and in the course of employment, finding no error in the hearing officer’s analysis under the Comeau test.

View complete text of Fournier v. Aetna, Inc.

Background:
Williams was fired from her post-injury employment with Tyson’s because of excessive late arrivals. Tyson’s argued that the employee was terminated due to her own fault and that pursuant to 39-A M.R.S.A. §214(1)(E), she was not entitled to wage loss benefits. Section 214 is derived from Michigan’s Section 418.301 which provides “If the employee . . . loses his or her job for whatever reason, the employee shall receive compensation based upon his or her wage at the original date of injury.” Mich. Comp. Laws §418.301(5)(e) (1999). [Emphasis added.] However, the Maine Legislature altered the language to provide “if the employee . . . loses the job through no fault of the employee, the employee is entitled to receive compensation based upon the employee’s wage at the original date of injury.” 39-A M.R.S.A. §214(1)(E) (2005). [Emphasis added.] The hearing officer, equating “fault” in the Workers’ Compensation Act with “misconduct” in the Employment Security Law, found that the employee did not lose her employment due to her own fault. As a result, the hearing officer did not reach the issue of whether Section 214(1)(E) prohibits wage loss benefits for employees who are fired due to fault. Tyson’s appealed. 

Court ruling: 
The Law Court upheld the decision of the hearing officer that the employee had not been fired due to her own fault. Apparently finding no significance in the Legislature’s change in language when adopting Section 214, the Law Court went on to say that there was nothing in the plain meaning or legislative history in that section that indicates an intent to prohibit workers’ compensation benefits when an employee is fired from post-injury employment for cause.

Although this decision severely limits this affirmative defense, it may not have eliminated it altogether. Left open is the question of whether an employee whose actions rise to the level of “misconduct” would be prohibited from receiving wage loss benefits pursuant to Section 214(1)(E). This decision is also likely to have an effect on another affirmative defense, namely refusal of suitable work. Rather than refusing suitable job offers, savvy employees will accept the offer then seek to be terminated. As long as their conduct does not rise to the level of “misconduct,” they will still be entitled to workers’ compensation benefits.

View complete text of Williams v. Tyson’s Food, Inc., et al.

Background:
Hoglund was injured while in the employ of Aaskov. The parties reached an agreement at mediation under which Aaskov agreed to pay medical bills and ongoing total incapacity benefits. Over a year later Aaskov filed a Petition for Review of Incapacity seeking a reduction in benefits. The Board determined that the mediation agreement was binding and that it established the compensability of the employee’s injury. As a result, Aaskov was required to demonstrate a change in Hoglund’s economic or medical circumstances since the mediation in order to merit a reduction in benefits. The Board determined that Aaskov failed to meet this burden, and denied the Petition for Review. Aaskov appealed contending that the mediation agreement was not the equivalent of a litigated factual finding on the extent of incapacity.

Court ruling: 
The Law Court, citing Bureau v. Staffing Network, Inc., 678 A.2d 538, 590 (Me. 1996), found that the legislative intent behind the Workers’ Compensation Act was to encourage mediation and avoid litigation whenever possible. The Law Court then held that, in order to carry out this legislative purpose, mediation agreements signed by the parties must be binding on factual issues. In this case Aaskov’s agreement at mediation to pay ongoing partial incapacity resulted in a factual finding that the employee was incapacitated, which in turn required Aaskov to prove a change in circumstances since the mediation in order to be entitled to reduce Hoglund’s benefits.

This case affirms the binding effect of mediation agreements and will likely lead to fewer compromises. Diligent employers and insurers will recognize that an agreement reached at mediation may establish the compensability of an injury, relieving the employee of his burden of proof and shifting it to the employer/insurer who must then show changed circumstances since mediation. As a practice tip, this danger can be avoided by careful drafting of the mediation agreement. Reserve all rights and defenses, and include language that makes it clear that any agreement reached did not have a binding effect on any factual issues as outlined in Hoglund.

View complete text of Hoglund v. Aaskov Plumbing & Heating

Background:
In this case, the Law Court was asked whether the definition of “physical or mental disability” under the Maine Human Rights Act requires a showing of a substantial limitation on a major life activity as does its federal counterpart, the Americans With Disability Act; and whether Section 3.02 (C) of the regulations adopted by the Maine Human Rights Commission is invalid because it requires such a showing.

The MHRA was enacted in 1971 and included no definition of disability. In 1973, the United States Congress adopted a definition of disability that required a showing of a physical and mental impairment which substantially limits one or more of a person’s major life activities. Two years later, the Maine Legislature added a definition of disability to the MHRA, but left out this “substantially limits” language. However, in 1985, the Maine Human Rights Commission adopted Rule 3.02 which defined disability and included the “substantially limits” requirement. The Legislature revised the MHRA in 1991 and made several non-substantive changes to the language to the definition of disability, but failed to incorporate the language of Rule 3.02. 

Court ruling: 
A narrow 4 to 3 majority noted that the Legislature had the opportunity in 1991 to include the more restrictive language of Rule 3.02 in the definition of disability, but failed to do so. Finding no ambiguity in the statutory language, the Court ruled that the MHRA definition of disability does not require a showing of a substantial limitation on one or more major life events and held Rule 3.02 invalid.

The dissent argued that the MHRA’s definition of disability was ambiguous in light of the fact that it consisted of a single run-on paragraph containing 77 words, thirteen commas, and eight “or’s”. They would have deferred to the Maine Human Rights Commission’s interpretation of the MHRA as requiring proof of a substantial limitation. In the dissent’s view, the 1991 Legislature left this language out of the revised definitionbecause it was already included in a rule adopted by the Maine Human Rights Commission.

As a result of this decision, the MHRA has a much broader definition of what constitutes disability than its federal counterpart. The less restrictive definition makes the MHRA applicable to even minor disabilities and will likely lead to a flood of litigation in Maine courts. 

View complete text of Whitney v. Wal-Mart Stores, Inc.

Background:
In a case involving issues similar to those in the Bryant v. Masters Machine case, the Law Court revisited under what circumstances work injuries combine with pre-existing physical conditions resulting in disability that is compensable under the Workers’ Compensation Act. The employee suffered from pre-existing herniated discs and severe spinal disease, which the Hearing Officer found had resolved until a non-work-related injury in 2001. The Hearing Officer found that the 2001 injury arose out of the employment and contributed to the employee’s disability in a significant manner. The employer/insurer appealed the decision.

Court ruling: 
Although the Hearing Officer did not refer to Bryant in her decision, the Maine Supreme Court found that she applied the standard for legal causation set out in that opinion. After hearing a description of the table legs and learning that another employee also caught his foot on the table leg, the Hearing Officer determined that the table leg contributed a substantial element to increase the risk of the employee sustaining a disability.

The Court then found that the remaining elements of Section 201(4) were met because the Hearing Officer, relying on one of the doctor’s opinions, determined that the combination of the work injury and the pre-existing condition rendered the employee disabled and the disability was contributed to by the employment in a significant manner.

View complete text of Celentano v. Dept. of Corrections

Background:
In this case, the Maine Supreme Court was asked to decide which party has the burden of proof regarding whether the employer had contemporaneous notice that payments made for a later injury related in part to a prior injury, thereby tolling the statute of limitations for the prior injury. This case was governed by former 39 M.R.S.A. §95, which requires a petition to be filed within two years after the date of injury or, if the employee is paid benefits pursuant to the Act, within ten years of the last payment. (The current version of this Section provides two and six year periods respectively.)

The employee suffered a work-related injury to his right hand on May 29, 1983. The last payment on this date of injury was made on November 18, 1991. The employee returned to work on April 6, 1987 and suffered another injury to his right hand on January 26, 2000. In 2002 the employee sought to restore benefits related to the 1983 injury, arguing that the employer had contemporaneous notice that payments made on the 2000 injury related to the 1983 date of injury as well, thereby tolling the statute of limitations. 

Court ruling: 
The Maine Supreme Court ruled that the employer/insurer bears the initial burden of proof on a statute of limitations defense (that the last payment was made more than ten years before the petition was filed). The burden is then on the employee to demonstrate that the employer had contemporaneous notice that payments made within the limitations period but after a subsequent injury related in part to the prior injury.

View complete text of Leighton v. S.D. Warren Company, et al.

Background:
Under 39-A M.R.S.A. §104, employers are generally immune from civil actions involving personal injuries arising out of and in the course of employment. This immunity extends to employees who are assigned to an employer by a temporary help service to work under the direction and control of the employer. Plaintiff, an on-site coordinator for the temporary help service, brought a civil action against the employer, alleging that she fell and was injured as a result of the employer’s negligence. The employer moved for summary judgment under the immunity provision of the Act. 

Court ruling: 
The Law Court held that in order for an employer to be immune from civil actions, the employees assigned by the temporary help service must work under the direction and control of the employer. In this case it was not clear whether the Plaintiff, who was supplied by the service to supervise other temporary employees, was under the direction and control of the employer. The Law Court therefore denied the employer’s Motion for Summary Judgment and remanded the case for the trier of fact to determine whether or not Plaintiff was working under the direction and control of the employer.

View complete text of Marcoux v. Parker-Hannifin/Nichols Portland Division