Tucker Law Group
Tucker Law Group

Coro v. Liberty Mutual Insurance Company and Liberty Insurance Corp.

Decided: June 22, 2021
Issues: Findings of Fact, Specific Mandate

On October 21, 2011, while working for Liberty Mutual as an in-house workers compensation defense attorney, the employee’s vehicle was rear-ended while driving to a hearing, resulting in injuries to her neck, back, upper extremities, and head. She continued to work for Liberty Mutual making her regular salary although she continued to have limitations from the injury.  She underwent a cervical disc replacement at C5-6 in October of 2014.

The Employee was unable to recover her pre-injury work capacity after her surgery. In May 2015, she was laid off by Liberty Mutual. Liberty Mutual paid her total incapacity.

One month after being laid off, the Employee started her own company, earning income helping parents with children suffering from addiction and substance abuse navigate the treatment system. During 2015 and 2016, she worked on a contractual basis for an inpatient facility. Then in 2017, after her contract was not renewed by the facility, she was hired independently by parents. In September of 2017, she was hired by a company to provide utilization review services.

In January of 2017, Liberty Mutual reduced her weekly compensation to a partial fixed rate. The sole dispute at hearing was the extent of earning capacity after January 16, 2017. The Employee alleged that the evidence – including an updated labor market survey and deposition testimony from the labor market survey expert – showed that she was entitled to varying partial from January 16 through September 30, 2017, and total incapacity from October 1, 2017 to the present and continuing. Liberty Mutual contended that she should receive benefits for partial from January 16, 2017 to the present and continuing based on an imputed earning capacity of $50,000 per year.

The contract ALJ determined that the evidence as a whole established a work capacity and that there is available employment, within the lower range of the labor market survey evidence for her to earn $40,000 annually. The decree did not contain the customary mandate explicitly granting the petition and instituting a weekly payment scheme. Following a denied Motion for Findings of Fact and Conclusions of Law, the Employee appealed.

The Employee argued on appeal that the contract ALJ erred when failing to issue additional findings of fact and conclusions of law when requested, stating that the original findings are inadequate for appellate review either because they are contradictory and unreconcilable, or fail to explain the legal basis for the finding. The Appellate Division disagreed.

The Employee’s first contention was that she was entitled to a remand for clarification because the contract ALJ based his findings, including findings on work capacity, on the reports of Drs. Kowash, Esponnette, and Omsberg. Dr. Kowash opined that the Employee had no work capacity while Drs. Esponnette and Omsberg opined that she had partial work capacity but could be expected to increase to full time. However, the contract ALJ explicitly stated that he based his findings “most significantly” on the Employee’s testimony regarding the work she performed after the injury. The Appellate Division noted that the contract ALJ clearly found her own testimony describing substantial work activity to be most persuasive.

The Employee further argued that findings with respect to her ability to earn $40,000 per year were inadequate because the contract ALJ did not consider that her law license had lapsed due to the inability to pay for required continuing education courses after being terminated, had overlooked her documented business expenses when establishing the post injury earning capacity, and relied on the labor market report that he also found to have significant shortcomings. The ALJ found that she retained considerable marketable skills during the period when she did not have a current law license. Furthermore, the Appellate Division held that although the Employee’s evidence of net profit from her self-employment arguably met her burden to produce prima facie evidence of her post-injury earning capacity, the contract ALJ was not bound to accept the net figure as conclusive proof of her earning capacity.

The burden then shifted to Liberty Mutual to establish that regular employment at higher wages within her restrictions was reasonably available to her, which it did using the labor market evidence. The Appellate Division then reasoned that despite the contract ALJ acknowledging the shortcomings in the labor market evidence, when viewed in the context of all evidence including her limited work search and her considerable skills and abilities, the testimony of the labor market expert was competent evidence to support the finding that the Employee was able to earn $40,000 per year. Moreover, it was within the contract ALJ’s purview to determine the weight and credibility to assign to the evidence.

Next, the Employee argued that the contract ALJ erred when basing his decision regarding earning capacity in part on the narrow window of her work search efforts without considering the Monaghan factors. However, the Appellate Division found this issue had not been preserved for appellate review and that it lacked merit in any event.

Finally, the Employee claimed that the Appellate Division must remand for further proceedings because the ALJ failed to state explicitly whether the petition was granted or denied, or to mandate a specific payment scheme for fixed partial incapacity benefits based on his determination of her earning capacity. The Appellate Division rejected this argument, holding that the failure to include the typical language is not reversible error as the statute authorizes modification of a decree of an administrative law judge. As such, the Appellate Division modified the decree by adding a specific mandate consistent with the contract ALJ’s findings and conclusions.

To read the full decision, click here: https://www.maine.gov/wcb/Departments/appellate/2021decisions/21-19_Coro_v._Liberty_Mutual_Ins._6-22-21.pdf

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Magoon v. Hannaford Bros. Co.

Decided: June 17, 2021
Issue: Arising Out of Employment

The Employee was working as a cashier in a Hannaford grocery store on August 6, 2014, at a customer service station. The Employee had dropped a receipt and squatted to pick it up from the floor. When doing so, she felt a pain in her right knee which eventually worsened over time and led to multiple right knee surgeries and treatment for a right hip problem.

Hannaford contested whether the injury arose out of her employment. The ALJ determined that the added element of rushing during a busy time while performing her work duties distinguished this case from those where an injury occurred at work, but not because of work. The Employee was ultimately granted protection of the Act and payment of medical services.

On appeal, Hannaford argued that there was no competent evidence to support the ALJ’s finding that the Employee was rushing when she picked up the receipt and the evidence was insufficient to show that the work activity was the legal cause of the injury.

The Appellate Division disagreed, reasoning that an injury is compensable when it arises out of and in the course of employment – that is when there is a sufficient connection between injury and employment – and here, there was no dispute that the injury occurred in the course of employment. The issue was whether it arose out of the employment. The ALJ found that the store was busy, the Employee was handling the customer service checkout counter, she was rushing when she squatted down, and then she experienced immediate pain in her right knee. Noting that the ALJ specifically found the Employee credible and her testimony credible, the Appellate Division determined that the fact that a different conclusion might have been reached if other evidence in the record was relied on did not render the ALJ’s decision erroneous.

The Appellate Division further rejected Hannaford’s argument that the ALJ erred by concluding that the element of rushing satisfied the Employee’s burden of establishing legal causation for her injury, finding that the need to rush while performing work tasks distinguished this case from others where an employee turned to throw away a single receipt in the trash without haste. The Appellate Division agreed that the added element of rushing while squatting to pick up the receipt met the increased risk legal causation standard.

To read the full text of the decision: https://www.maine.gov/wcb/Departments/appellate/2021decisions/21-18_Magoon_v._Hannaford_6-17-21.pdf 

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Recent Addition to the Maine Workers’ Compensation Firefighters’ Presumption

Did you know Governor Mills signed LD 213 into law this week?

LD 213 added female reproductive cancers to the existing firefighters’ presumption in Maine. The existing firefighters’ presumption states if a firefighter meets requirements involving medical tests, length of service, and signed a written affidavit declaring that, to the best of their knowledge the diagnosed cancer is not prevalent among certain blood-related family members, there is a rebuttable presumption that they contracted cancer in the course of employment.

As a result, sufficient notice of the cancer was given. The disease was not occasioned by any willful act of the firefighter to cause the disease. The list of female reproductive cancers is now included in the definition of cancer in the Act. It joins kidney cancer, non-Hodgkin’s lymphoma, colon cancer, leukemia, brain cancer, bladder cancer, multiple myeloma, prostate cancer, testicular cancer, and breast cancer. For more information about how this new development might affect you as an employer or insurer, please call one of our attorneys at Tucker Law Group today.

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Ramsey v. Shaw’s Supermarkets, Inc., & Sedgwick Claims Management Services

Decided: April 21, 2021
Topic: Notice, Mistake of Fact

The issue, in this case, was whether it was appropriate, in the absence of any testimony or other evidence on the issue, for the ALJ to infer that the employee operated under a mistake of fact as to the cause of his bilateral knee condition until he obtained a medical causation opinion.

The employee worked long-term for Shaw’s Supermarkets as a grocery manager. His job often involved stocking shelves, which required frequent bending and kneeling. Over a period of several years, he experienced pain in both knees that worsened progressively. On August 22, 2017, the employee saw his primary care physician.

Around this time, the employee began to question whether his work caused his knee condition. The primary care physician did not issue a causation opinion until December 1, 2017. In the meantime, the employee saw Shaw’s chosen medical provider on November 3, 2017. They determined his bilateral knee condition as work-related. Shaw’s was notified that same day.

Shaw’s alleged that the employee’s claim should be denied. He failed to provide notice within the 30-day period required by statute. Once an employer raises the issue of notice, the employee bears the burden of persuasion to show that notice was timely.

Despite no testimony from the employee that he was under a mistake of fact regarding the cause and nature of his bilateral knee pain, the ALJ (Goodnough) found that the employee was under a mistake of fact until he was given a medical opinion regarding the compensable nature of his knee condition on November 3, 2017. As a result, the ALJ concluded that the notice was timely.

Shaw’s appealed arguing that the ALJ erred by tolling the notice period for the mistake of fact. The employee provided no evidence that he operated under a mistake of fact as to the cause of his condition. He argued that the absence of a medical causation opinion until November 3, 2017, supported the ALJ’s factual finding.

The employee was under a mistake of fact or that knowledge of the work-relatedness of the injury should not have been imputed to him because of the differing medical causation opinions. The Appellate Division vacated the decision and ordered the employee’s petitions denied on remand based on late notice.

They found that the record did not contain competent evidence to support the ALJ’s finding of mistake of fact. They further noted that the absence of a medical opinion on causation, by itself, does not permit an inference that the employee was mistaken as to the cause and nature of his knee condition.

To see the full text of the decision:

https://www.maine.gov/wcb/Departments/appellate/2021decisions/21-16_Ramsey_v._Shaw’s_Supermarkets_4-21-21.pdf

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Gallup v. Keystone Automotive Industries, Inc. & Sedgwick Claims Management Services, Inc.

Decided: March 30, 2021
Topic: Res Judicata

This decision involved a determination of whether the res judicata effect of a prior Consent Decree compelled a finding that the employee’s ongoing problems years later still came from the original work injury. The employee worked as a driver for Keystone Automotive Industries. In 2008, he sustained a right shoulder injury at work. He suffered from right shoulder problems prior to the injury for which he received treatment.

A Consent Decree occurred at that time. The parties agreed that the 2008 work injury represented a significant aggravation of the pre-existing shoulder condition. The parties further agreed in the Consent Decree that the 2008 injury was, in part, the reason the employee had surgery on the shoulder. He lost time from work between May and October of that year. Then, the employee underwent a second surgery on the right shoulder in 2010. Finally, he underwent a reverse shoulder arthroplasty in 2017.

The issue before the Appellate Division included whether the 2017 surgery and ongoing capacity resulted from the 2008 work injury. The ALJ found that they were not. Based on the opinion of the 312 examiner, Dr. Matthew Donovan attributed the more recent problems to the natural progression of the preexisting shoulder condition instead of the work injury.

The employee appealed. He argued that the ALJ, bound by the res judicata effect of the prior Consent Decree, found the current problems related to the 2008 work injury. Specifically, the employee argued that the 2009 independent medical exam formed the basis for the Stipulated Decree. Therefore, its conclusions regarding the preexisting medical condition must be accorded full and final preclusive effect.

The Appellate Division ultimately affirmed the ALJ’s decision. They found that the Consent Decree did not address nor decide the issue of the precise medical nature of the employee’s underlying shoulder condition. The Appellate Division determined that the lone reference to the underlying condition was entitled to res judicata effect. No preclusive language in the Consent Decree indicated that the employment caused the current right shoulder condition rather than the natural progression of the underlying condition as opined by the 312 examiner.

To see the full text of the decision:

https://www.maine.gov/wcb/Departments/appellate/2021decisions/21-13_Gallup_v._Keystone_Automotive_Industries_Inc._3-26-21.pdf

 

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Bosse v. Sargent Corporation & Cross Insurance TPA, Inc.

Decided: March 24, 2021
Topic: Preexisting Condition, Significant Contribution, Average Weekly Wage  

This decision involved several issues, including preexisting conditions and average weekly wage. The employee filed a Petition for Award alleging a gradual work injury arising out of her work for Sargent after experiencing hip and lower back pain. The employee had worked as a truck driver for many years.

Initially, she was self-employed. She then worked for another employer for a couple of years before being hired by Sargent. Notably, the employee had experienced low back problems before her employment at Sargent.

It is also important to note that the employee was subject to seasonal layoffs at Sargent. There was some indication in the record that the same was true during her employment with her prior employer. She worked year-round when she was self-employed, however.

Dr. Bradford’s initial 312 reports concluded that while her hip arthritis was caused by her work as a truck driver, the work did not cause a significant low back problem. However, at deposition, Dr. Bradford testified that her truck driving activities probably contributed to the development of degenerative disc disease in her back.

The ALJ (Goodnough) adopted Dr. Bradford’s deposition testimony and found the employee sustained a compensable gradual injury to both hips and her low back. The ALJ awarded a closed-end period of total incapacity for the hip surgery, recovery, and ongoing partial for the low back.

Because the employee was laid off during the winter months, Sargent argued that the average weekly wage should be calculated using the fallback method in section 102(4)(D) rather than under section 102(4)(B) as that method would unreasonably inflate the employee’s average weekly wage.

The ALJ disagreed, finding that the wage using (B) was not so high as to be per se unreasonable. The reasons she worked less than year-round were linked to the employer’s considerations, and she had worked on a year-round basis before working for the employer.

The Appellate Division affirmed the ALJ’s finding that the work injury included an injury to her lower back but vacated the ALJ’s determination that back injury was compensable without applying the section 201(4) analysis. It remanded for a determination whether the employment at Sargent contributed to the disability in a significant manner.

Finally, the Appellate Division found no competent evidence to support the finding that employment immediately before Sargent was year-round, which is deemed critical in the decision to employ (B) instead of (D). Ultimately, it remanded for determining whether (B) was the appropriate method for calculating the wage.

To discuss how this decision and others like it may affect you as an employer or insurer, please give one of the attorneys at Tucker Law Group a call.

To see the full text of the decision, click here.


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James v. Tractor Supply Company & Gallagher Bassett Services, Inc.

Decided: March 18, 2021

Topic: 201(4) Preexisting Condition

This appellate decision involves an appeal of the ALJ’s (Elwin) decision finding that there was no medical opinion to support that the alleged work injury was a compensable aggravation of the employee’s preexisting condition.

Five days before the alleged date of injury, the employee was undergoing physical therapy when she reported left upper back and neck pain with tingling into her left arm and hand. A few days later, at work, she was moving 50 lb. bags of product when she experienced neck pain.

On appeal, the employee argued that the change in the treatment plan and the imposition of work restrictions following the alleged work injury were sufficient to establish a compensable aggravation of a preexisting condition. The ALJ disagreed, finding such to be insufficiently persuasive to establish compensability. The Appellate Division upheld the decision.

To discuss how this decision and others like it may affect you as an employer or insurer, please give one of the attorneys at Tucker Law Group a call.

For the full text of the opinion, click here.

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Thomas v. United Ambulance Service v. Maine Employers Mutual Insurance Company

Decided: March 16, 2021

Topic: Gradual Injury, Arising Out of, and Within the Scope of Employment

This decision involved a gradual injury that first manifested symptoms while the employee was at home and not working. The employee had worked as a dispatcher for United Ambulance Service for roughly 12 years, taking nearly 250 calls per day and working four 10-hour days, plus frequent overtime.

On the date of the injury, the employee was at home during his day off. He was reaching over his bathtub with his arm extended when he felt a “pop” and experienced immediate pain in his neck and left shoulder. He pursued a workers’ compensation claim alleging that his employment caused his eventual diagnosis of cervical disc herniation.

A Section 312 independent medical examination by Dr. Bradford concluded that the employee sustained a compensable cervical injury, opining that the injury “occurred gradually due to repetitive computer activities and static posturing while functioning as a dispatcher over many years.” Dr. Bradford further reasoned that the bathtub incident was the culmination of a delayed-onset work injury rather than a specific nonwork-related event.

The ALJ (Goodnough) granted the petitions and awarded protection of the Act, and ordered payment of medical bills. On appeal, the Appellate Division upheld the decision, ultimately holding that the final test in such a claim is not whether the symptoms occurred at work, but instead, whether the injurious activities that caused the injury were undertaken in the course of employment.

To discuss how this decision and others like it may affect you as an employer or insurer, please give one of the attorneys at Tucker Law Group a call.

For the full text of the opinion, click here!

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FDCC Membership for Tucker

Richard D. Tucker, a managing partner at Tucker Law Group, earned unanimous approval as a member of the Federation of Defense and Corporate Counsel (FDCC). An international organization founded over 80 years ago. FDCC includes members who achieved professional distinction as leaders in the legal community. Membership in FDCC is limited, selective, and by nomination only.

For more information about FDCC, go to:

https://thefederation.site-ym.com/page/AboutUs.

Tucker also currently serves on the Board of Directors of DRI – The Voice of the Defense Bar, as the Northeast Regional Director, formally holding the office of Maine’s State Representative. A frequent speaker on legal topics, Tucker is also a member of the Maine State Bar Association, Penobscot County Bar Association, and Tri-State Defense Lawyers Association.

He also continues to counsel clients on Workers’ Compensation and Insurance Defense issues. Established in 1993. Tucker Law Group currently has four attorneys, with over 60 years of combined experience. Congratulations Dick on this accomplishment!

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WCB Rule Changes

The Workers’ Compensation Board recently adopted a number of rule changes. These went into effect on September 1, 2018. The full text of the rule changes with strikeouts of deleted language and underlines for the new language can be found here.

For a summary of the rule changes, see below:

CHAPTER 1

PAYMENT OF BENEFITS
Ch. 1, §5(1)(A)(3)

401(k), 403(b) and equivalent plan matching funds that cease payment because the employee is not working must be included, as fringe benefits, in an employee’s average weekly wage. Inclusion of the matching funds ends when the employee returns to work in any capacity (partial or full time).

Ch. 1, §5(2)(B)

Fringe benefits must be determined on the date of injury and the employer/insurer shall file a WCB-2B within 30 days of notice of the injury.

Ch. 1, §5(2)(C)

An employer/insurer can adjust an employee’s average weekly wage using the modification form one time within 90 days after the first lost time payment on a claim to correct an error or miscalculation. To make changes after 90 days, file a 21-day certificate of discontinuance/reduction.

Ch. 1, §11

Establishes a post-insolvency process between the Board and Maine Insurance Guaranty Association.

 

CHAPTER 2

SECTION 213 COMPENSATION FOR PARTIAL INCAPACITY
Ch. 2, §3

A permanent impairment evaluation for purposes of lump-sum settlement is no longer required.

Ch. 2, §5

The procedure for terminating the benefits of an employee who reached the durational limitation has been amended. The same process applies to cases paid without prejudice. A separate process applies to cases where the employee receives payment pursuant to a compensation payment scheme.

If there is a compensation payment scheme (e.g. – a decree), the employer/insurer must file a Petition to Terminate Benefit Entitlement. The petition includes the required notice informing the employee of the right to request extended benefits due to extreme financial hardship pursuant to §213(1). In the event of the petition’s granting, the decree includes the required notice.

 

CHAPTER 3

FORM FILING
Ch. 3, §1-A

Employers must now complete the first report of injury for all injuries, including medical-only, within 7 days after the employer receives notice of an injury that required the services of a healthcare provider but did not cause the employee to lose a day’s work.

A copy of the First Report of Occupational Injury or Illness (WCB-1) shall go to the employee unless self-insured. Also, it must go to the employer’s insurer within 24 hours after the First Report of Occupational Injury or Illness (WCB-1).

 

CHAPTER 4

INDEPENDENT MEDICAL EXAMINER
Ch. 4, §1(B)

§312 Independent medical examiners must hold an active treating practice within 24 months prior to appointment in an individual case. “Active treating practice” means active direct involvement in the treatment of patients on a regular basis.

Ch. 4, §2(6)

§312 Independent medical examiners are no longer precluded from acting as the employee’s treating provider. §312 still requires disclosure of any potential conflicts.

 

CHAPTER 5

MEDICAL FEES, REIMBURSEMENT LEVELS, & REPORTING REQUIREMENTS
Ch. 5

The creation of a new set of medical releases outlined below:

  • WCB-220: General release
  • WCB-220-A:  Mental health records
  • WCB-220-B: Substance abuse records
  • WCB-220-C: Sexually transmitted disease records
  • WCB-220-R: Revocation of release

CHAPTER 6

REHABILITATION
Ch. 6:

WCB completely revamped the employment rehabilitation rule. The new version establishes an appointment process for rehabilitation providers. It also spells out procedures for suitability evaluations pursuant to §217(1), plans implementation pursuant to §217(2)

Also, recovery by the Employment Rehabilitation Fund in case of successful rehabilitation plans. The goal includes streamlining the rehabilitation process, allowing input at all stages, and clarifying that employers/insurers can raise all defenses if the Employment Rehabilitation Fund seeks reimbursement.

 

CHAPTER 8

PROCEDURES FOR PAYMENT
Ch. 8, §11

Permits an employer/insurer to terminate benefits pursuant to § 205(9)(A) when an employee has been released to work with no restrictions by the employee’s treating health care provider, there are no conflicting medical reports, and the employee, instead of returning to work receives vacation, paid time off (PTO), or holiday pay instead of regular wages.

CHAPTER 9

PROCEDURE FOR COORDINATION OF BENEFITS
Ch. 9, §2(2)

Allows coordination of benefits when an employee receives payments pursuant to a PTO or equivalent plan. If the PTO plan designates a certain percentage as sick time, then lost time benefits may coordinate by that percentage of the PTO payment. Otherwise, coordination allowed only if the PTO benefit used equals the amount of sick leave.

CHAPTER 12

FORMAL HEARINGS
Ch. 12 §1(2)

Now allows 21 days to respond to another party’s motion or submission.

Ch. 12 §2

Petitions for payment of medical and related services must include itemized bills, liens, co-pays, and out-of-pocket expenses. Also, payment of medical bills must occur within 10 days after the issuance of a decree or the receipt of the information required under Chapter 5, whichever occurs later.

Ch. 12 §5

Continuance requests must be filed no later than 7 days before the hearing or conference.

Ch. 12 §9(1)

If a Joint Scheduling Memo (JSM) is not filed in a timely manner, the Board may dismiss pending petitions. If the JSM is not filed within 21 days after notice from the Board, that pending petitions will be dismissed.

Ch. 12 §9(3)

Legal issues not raised in the Joint Scheduling Memo may be deemed waived by the Administrative Law Judge.

Ch. 12 §10

The JSM must list scheduled examinations pursuant to §207 and §312. Examinations pursuant to §207 and §312 must be scheduled or requested within 30 days after the JSM is filed.

Examinations outside of this timeframe can only be scheduled upon a showing of good cause. Good cause includes the generation of the significant medical evidence since the filing of the JSM but does not include failure to exchange relevant medical information.

Ch. 12 §11(4)

Regardless of whether the employer intends to offer the surveillance, the employer shall provide all surveillance information to the employee within 14 days after the employer receives the exchange of information, but no later than 7 days prior to the hearing.

This includes all surveillance since the date of injury or since the last decree, whichever period is shorter. Any surveillance received after that point must be exchanged within 14 days of receipt. No later than 7 days prior to the hearing.

CHAPTER 13

RULES OF APPELLATE DIVISION
Ch. 13, §1-A

A party filing an appeal at a regional office holds responsibility for the cost of transferring the submission to the division.

Ch. 13, §3(2)

Notice of Intent to Appeal may be filed by e-mail, provided the original is sent on or before the due date.

Ch. 13, §6(1)(E)

The appendix should include all documents referenced in the briefs except for good reasons.

Ch. 13, §7(2)

The Appendix to an appeal must contain a table of contents.

Ch. 13, §9(1)

Requests for Appellate Division oral arguments must be made separately from any other board filing.

Ch. 13, §9(4)

If there are multiple employers/insurers in a case before the Appellate Division, the parties must allocate the 20 minutes to present oral between themselves unless a party files a motion showing good cause for additional time.

 

CHAPTER 15

PENALTIES
Ch. 15 §6(1)

The $5,000 guideline limit to forfeitures has been removed.

 

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