Date: 4/14/15
Summary: Panel affirms hearing officer’s dismissal of petitions and subsequent refusal to reinstate petitions due to the pro se employee’s failure to prosecute. Standard of review of Hearing Officer’s decision to dismiss/not reinstate petitions is abuse of discretion.
Read the full text of Jeffrey R. Dolloff, Sr. v. Link Property Management, Inc.
In the recent case Estate of Ralph Zeitman v. WW Osborne, a widow whose petition for death benefits against five employers was dismissed on statute of limitations grounds prevailed on appeal to the Appellate Division of the Maine Workers’ Compensation Board. The widow, Ms. Zeitman, filed her petitions against the employers twelve years after the death of her husband. The employers filed a joint motion to dismiss, raising the two-year statute of limitations period on death claims. Because he was asked to decide the issue on a motion, rather than after a hearing, the hearing officer made every inference in favor of Ms. Zeitman, including assuming that she was operating under a mistake of fact as to the reason of Mr. Zeitman’s death until shortly prior to the filing of the petitions. Despite the assumption of a mistake of fact, the hearing officer found that twelve years was not a “reasonable time” within which to file petitions and granted the motion to dismiss.
The Appellate Division reversed, finding that, in the event of a mistake of fact as to the cause of death, the two year statute of limitations did not begin to run until the widow’s mistake of fact was cured. The case was remanded to the hearing officer for further proceedings consistent with the decision.
This case provides employers and insurers with some additional clarity regarding the mistake of fact exception to the statute of limitations defense. It is now clear that the limitations period does not begin to run until the mistake of fact is cured, effectively entitling the claimant to the full limitations period after she becomes aware that she has a viable claim.
In a recent decision, the Appellate Division of the Maine Workers’ Compensation Board was asked to decide whether an employment relationship can exist between a “special” (or borrowing) employer and an employee where no employment relationship exists between the “general” (or lending) employer and that employee. Malpass v. Gibbons, et al. App. Div. 13-0043. In this case, a member of a framing crew asked an independent contractor at another job site for help with lifting a wall. During the lift, the wall fell, injuring the independent contractor. The Appellate Division found no employment relationship between the contractor and the supposed lending employer. Citing Torsey’s Case, 153 A. 807 (Me. 1931), the Appellate Division found that, where there is no employment relationship between a worker and his supposed lending employer, there can be no “transfer” of employment, and therefore no employment relationship can be created between the worker and the borrowing employer under the lent employee doctrine.
For small business owners hiring both independent contractors and employees, it is important to fully understand the distinctions between the two to avoid complications from the Maine Workers’ Compensation Board (WCB). With everyone looking to cut costs and the WCB’s Abuse Investigation Unit cracking down on worker misclassification, we take a look at the definition of an independent contractor as laid out in the Workers’ Compensation Act, 39-A M.R.S.A. §102(13-A).
The Act requires that all of the following factors be true before an employer can designate a worker as an independent contractor:
If all five of the above factors apply to the worker, he/she can be designated an independent contractor if at least 3 of the below are also true:
To make employers’ lives easier, the Board provides an Application for Predetermination of Independent Contractor Status, which can be filled out and submitted before work begins. It is important to remember that submitting the form does not make you audit-proof. However, by following the rules laid out above, employers can rest a little easier in the knowledge that they are likely properly designating their workers’ status.
For more information about this complicated issue, please contact the attorneys at Tucker Law Group.
Recently, the Appellate Division clarified the employee’s burden of proof of contemporaneous notice required to toll (or pause) the statute of limitations in Maine workers’ compensation cases. Contemporaneous notice is a doctrine which tolls the statute of limitations for an earlier injury if the employee can show the employer/ insurer made payments on a later injury with contemporaneous knowledge those payments were at least partly necessitated by the earlier injury.
In Ronald Flanagin v. State of Maine Department of Inland Fisheries and Wildlife the Appellate Division clarified that there is a “a relatively low threshold to meet the employee’s burden to establish the causative relationship” between the earlier and later injury: The employee must show (1) that the earlier injury “contributed in some part” to the later incapacity or need for treatment, or (2) that treatment after the later injury was “in part necessitated by” the earlier injury. To show the employer/insurer had contemporaneous knowledge the two injuries were related, the employee can (1) provide medical records available to the employer at the time of the payments suggesting the later injury is connected with the first, or (2) simply show he or she had asserted a belief at the time of the payments that the older injury is at least partly responsible for the later incapacity or treatment.
This is the first time the new Appellate Division has addressed the employee’s burden of proof of contemporaneous notice to toll the statute of limitations. The Appellate Division characterizes the employee’s burden of proof on the sufficiency of notice as a “relatively low one,” and a mere “connection standard.” It also clarifies that a mere showing the employee expressed a belief at the time of the payments that the later injury is related to the first is sufficient to show the employer had contemporaneous knowledge of their relatedness, and will toll the statute of limitations.
There are venues in certain corners of the United States that exert a magnetic pull on plaintiffs’ attorneys everywhere. In Madison County, Illinois more than 800 asbestos cases are filed annually, 90% by out-of-state plaintiffs. In the Eastern District of Texas, shell “patent troll” companies rent empty offices to create “headquarters” from which to file over 1,000 patent infringement cases per year. Driven by statistics showing plaintiff-friendly judges or astronomical jury awards, plaintiffs’ lawyers travel to these venues to haul in the next big catch. But a new decision from the nation’s highest court might signal the death knell for “forum shopping.”
n Daimler AG v. Bauman, several Argentines sued the German car-maker Daimler AG in a California Federal District Court claiming that the company collaborated with state security forces to kidnap, torture, and kill some of its own employees during Argentina’s 1976-1983 “Dirty War.” None of the events giving rise to the suit had taken place in California. The Ninth Circuit held that Daimler was answerable to any lawsuit in California through its agent, Mercedes-Benz USA, LLC, a Delaware limited liability corporation with multiple California-based facilities.
The Supreme Court unanimously reversed the Ninth Circuit in an extremely broadly worded decision. The Court said that, when the suit does not arise out of the defendant’s contacts with the forum state, it can only be subject to “general”, rather than “specific” personal jurisdiction. The court then said that in order for a company to be subject to general jurisdiction in a state, it must have contacts with the state that are so “continuous and systematic as to render [the company] essentially at home” there. The Court gave a very limited definition of what it means for a company to be “at home,” listing the place of incorporation, the principal place of business, and maybe nowhere else.
Assuming that state courts begin to follow the Daimler decision, plaintiffs’ lawyers will no longer be able to file suit in some random plaintiff-friendly forum that has no connection to the parties or the cause of action. After Daimler, a plaintiff’s potential forum may well be limited to at most three states: the state where the events took place, the state where the defendant is incorporated, and the state where the defendant has its principal place of business.
We will monitor the impact of Daimler with curiosity, particularly here in Maine , and will report back with any developments.
Summary: The Appellate Division panel found Hearing Officer Collier did not err by rejecting the opinion of an independent medical examiner (IME) regarding the duration of the employee’s incapacity. Deferring to the hearing officer’s findings as to credibility and medical/factual issues, the panel concluded the evidence the hearing officer relied on could reasonably have persuaded him it was highly probable the IME was incorrect in his assessment of the duration of the employee’s incapacity.
Summary: The Appellate Division panel found Hearing Officer Pelletier did not err by concluding the employee had good and reasonable cause to refuse a bona fide offer of reasonable employment, even though the reason given was that he felt the work would negatively affect his non-work-related psychological condition. The panel found that under 39-A M.R.S.A. § 214(1)(A), the “good and reasonable cause” to refuse a bona fide offer of employment can be non-work-related.
Summary: The Appellate Division panel found Hearing Officer Collier did not err in (1) adopting the opinion of one independent medical examiner over another, or (2) in determining the employer/insurer did not meet its burden of proof on the issue of changed medical circumstances and declining to reopen the compensation payment scheme.
The panel found the hearing officer could reasonably have been persuaded by the evidence it was highly probable one IME opinion was wrong. It also noted a finding that a party failed to meet its burden of proof is a conclusion of law subject to appeal; however, such a conclusion may only be overturned where the facts found by the hearing officer legally compel a contrary conclusion. The panel found the testimony in this case did not compel such a conclusion and affirmed the decision.
