Background:

Buckley sustained work-related injuries in October 1996 (left shoulder), November 1996 (left shoulder), March 2000 (right shoulder) and October 2001 (both shoulders). In earlier Decrees, the Board found all four injuries compensable and apportioned responsibility equally. The Board found that the 2000 right shoulder injury was caused by the employee favoring his right arm due to the 1996 left shoulder injuries. The Board determined that Buckley had 7% permanent impairment to the left shoulder resulting from the two 1996 injuries, and 7% permanent impairment to the right shoulder resulting from the 2000 and 2001 injuries. The Board found no additional permanent impairment to the left shoulder from the 2001 injury.

The Hearing Officer did not “stack” permanent impairment. He based his decision on his finding that the 2000 right shoulder injury did not cause additional PI to the 1996 left shoulder injuries and that the 2001 bilateral shoulder injury did not cause any additional PI or aggravate or accelerate any of the prior injuries to either shoulder. The relevant statutory section in effect at the time of each of Buckley’s injuries was 39-A M.R.S.A. Section 213(1-A)(A). It defines permanent impairment as (1) the work injury at issue in the determination and (2) any pre-existing physical condition or injury that is aggravated or accelerated by the work injury at issue.

The employee appealed and the Law Court vacated a part of the decision addressing permanent impairment. The Court noted that permanent impairment could potentially be stacked because all of the permanent impairment resulted from injuries at issue in the determination” and that impairment to the left and right shoulders was “not unrelated”.

On remand, the Hearing Officer assigned 14% impairment to the 1996 left shoulder injuries by stacking 7% from the 2000 right shoulder injury. However, he did not stack impairment from the 1996 injuries onto the 2000 or 2001 injuries. Buckley again appealed.

Court ruling:

This time, the Court affirmed the Hearing Officer’s decision. The Court agreed with the Hearing Officer’s interpretation of its ruling in Buckley I that permanent impairment from a subsequent injury that was caused by a prior injury could be stacked onto impairment from the prior injury. In this case, because the 2000 right shoulder injury resulted from the 1996 left shoulder injuries, the Hearing Officer stacked the 7% from the 2000 injury onto the 7% on the 1996 injuries. Because the 1996 injuries were earlier in time and therefore could not have “resulted from” the 2000 or 2001 injuries, the Court agreed with the Hearing Officer’s decision not to stack impairment from the 1996 injuries onto the 2000 and 2001 injuries.

Keep in mind that this decision affects only those dates of injury prior to January 1, 2002 and applies to both pre-existing work-related and non-work-related conditions or injuries alike. The version of Section 213 in effect for those injuries still provides that pre-existing non-work-related conditions must be aggravated or accelerated by the work injury in order to be stacked. However, it is much easier to stack permanent impairment from a prior work-related injury. As long as a First Report of Injury was filed and the prior injury was not subject to a lump sum settlement with a finding of impairment equal to or in excess of the then applicable impairment threshold, it is enough if the prior work injury “combines with” the work injury at issue to contribute to the employee’s incapacity. There is no additional requirement that the prior work injury must “result from” the work injury at issue in the determination as was the case in Buckley.

View complete text of William Buckley v. S.D. Warren Co., et al.

 Summary:

 The employee in this case filed an occupational disease claim for asbestos. The employer failed to file a Notice of Controversy for nearly two years after the date of injury. After realizing its mistake, the employer voluntarily paid total compensation from the date of injury to the date of cure, but did not include any statutory interest. The hearing officer found that the employer failed to cure the 14-day violation by its failure to pay interest, but the Law Court vacated that decision. The Court determined that WCB Chapter 8, Section 7 requires interest only on “award of compensation”, which do not include 14-day violations. Therefore no interest was owed and the 14-day violation was cured when the payment was made.

The employee later died and his widow filed a claim for death benefits. The employer claimed the right to offset the death benefits by the amount paid under the 14-day violation. The hearing officer rejected this argument, as did the Law Court, finding that the 14-day violation was on the original petition for award, not on the widow’s later death benefits claim.

 
View complete text of Estate of Michael Joyce v. Commercial Welding Co., et al

Summary:

The employer in this case challenged an award of total incapacity based on an alleged 14-day rule violation. The employer filed a Motion for Stay of Enforcement of the Board’s decision, hoping to avoid paying incapacity benefits while the issue was on appeal. This decision addressed only the Motion for Stay.

The Court denied the Motion, citing the “pay pending appeal” provision at 39-A M.R.S.A. §324(1). That provision provides that payments pursuant to an order or decision of the Board may not be suspended while an appeal is pending. The Court went on to note that if it is ultimately found that the employee was not entitled to the compensation paid, Section 324 provides a mechanism for the recovery of payments made pending appeal.

The appeal addressing the underlying 14-day violation issue is currently pending and a decision is expected within the next several months.

View complete text of Matthew Doucette v. Hallsmith/Sysco Food Services, Inc., et al.

Summary:

When an employee settles a claim against a third party responsible for a work-related injury, the employer is entitled to a lien for the value of compensation paid and payable on a claim against the recovery from the third party. The lien is reduced by the employer’s proportionate share of the cost of collecting the third party recovery, including reasonable attorney’s fees.

The Court has held that the employer’s proportionate share should be calculated considering past benefits paid and potential future liability relieved, to the extent it can be determined. McKeeman v. Cianbro Corp., 2002 ME 144, 804 A.2d 406. The McKeeman Court predicted the issue in this case: how is the proportionate share calculated when the employer’s future workers’ compensation liability cannot be reasonably determined?

In this case, the parties suspended the Board proceedings pending resolution of the lien issue. However, the Court held that the Superior Court should have delayed ruling on the amount of the lien until after a decision was reached on the underlying claim as a Board decision may provide the Court with the information needed to determine future workers’ compensation liability. The Court therefore remanded the case to the Superior Court pending completion of the Board proceedings.

If the Board’s decision does not provide certainty to the employer’s future liability, the Court would endorse the pari passu approach, whereby an employer pays its proportionate share of costs and attorney’s fees attributable to payment of future benefits as those benefits accrue. That approach is contrary to the employee’s suggestion that the employer’s share of attorney’s fees and costs should be based on the present value of the employee’s future workers’ compensation payments, despite the fact that those payments could be speculative.

View complete text of Construction Services Workers’ Compensation Self-Insurance Trust v. Dennis Stevens, et al.

Summary:

Feiereisen injured his right shoulder in a car accident while traveling to a workers’ compensation mediation on 1987, 1997 and 2007 injuries while at Newpage. The employee eventually filed a number of petitions, including a Petition for Award with regard to the car accident. The Hearing Officer found that an injury traveling to or from a mediation does not arise out of and in the course of employment and the Maine Supreme Court agreed. A five justice majority found the situation in this case similar to that in Dorey v. Forster Manufacturing Co., 591 A.2d 240 (Me. 1991), in which the Court held that an injury sustained while the employee was retrieving records to pursue her workers’ compensation claim did not arise out of and in the course of employment. The Court noted that attending mediation does not promote the interests of the employer and also cited the “going and coming” or “public streets” rule which, subject to very limited exceptions, provides that an accident occurring off the employer’s premises while an employee is going to or from work is not compensable.

The employee, and the two justice dissent, relied on one of the exceptions to the going and coming rule announced in Moreau v. Zayre Corp., 408 A.2d 1289 (Me. 1979). In that case the employee was injured while driving home after receiving medical treatment for an alleged work-related injury. The majority distinguished Moreau by noting that unlike attendance at a mediation which promotes only the interests of an employee, attendance at medical appointments becomes part of the employment contract because it satisfies both the employer’s obligation to provide medical services pursuant to the Workers’ Compensation Act and the employee’s reciprocal obligation to accept those services.

View complete text of Kurt M. Feiereisen v. Newpage Corp., et al.

Background:

The issue in this case was whether the employee’s workers’ compensation benefit should have been reduced to the maximum compensation rate before or after a pension offset was taken pursuant to the coordination of benefits section (39-A M.R.S.A. §221). The employee argued that the pension offset should be taken first and then the resulting benefit reduced to the statutory maximum, if applicable. The employer argued that the pension offset should be applied after the post-injury compensation rate has already been reduced to the statutory maximum. The hearing officer agreed with the employer and the employee appealed.

Court Ruling:

The Court agreed with the hearing officer and employer that the benefit must be reduced to the statutory maximum before applying the pension offset. The coordination of benefits section of the Act states that offsets are to be taken from the employee’s benefit and part of calculating an employee’s benefit is applying the statutory maximum pursuant to Section 211. Therefore, the employer properly took the pension offset after reducing the employee’s benefit to the statutory maximum compensation rate.

View complete text of Gregory R. Hanson v. S.D. Warren Co., et al.

Background:

Damon suffered from work-related bilateral tendinitis and carpal tunnel syndrome stemming from a 1991 date of injury. He continued to work at S.D. Warren until 2004 when, faced with a layoff, chose to accept an early retirement option. Before leaving S.D. Warren, Damon started working as a custodian for a local school department then immediately transitioned to full-time work in that position after retiring from S.D. Warren. The Hearing Officer found that Damon did not terminate “active employment” as required pursuant to 39-A M.R.S.A. §223 and therefore refused to apply the retiree presumption. S.D. Warren appealed that part of the decision.

In the same decision, the Hearing Officer allowed S.D. Warren to offset the payment of weekly benefits by the amount of premiums S.D. Warren continued to pay for Damon’s health and life insurance benefits. The employee appealed that part of the Hearing Officer’s decision.

Court Ruling:

The Law Court upheld the Hearing Officer’s refusal to apply the retiree presumption. The Court held that “active employment” under Section 223 refers to more than just the employment in which the employee was injured. In order for the retiree presumption to apply, the employee must terminate all active employment.

The Court vacated the part of the Hearing Officer’s decision allowing S.D. Warren to take an offset for continuing payment of the employee’s health and life insurance premiums. The Court first found that these benefits had not been included when determining the employee’s pre-injury average weekly wage. The Court then looked at the purpose of the coordination of benefits section of the Act which is to prevent a double recovery or a stacking of benefits. Since fringe benefits had not been included in the pre-injury average weekly wage, there was no risk of double recovery and allowing an offset would expand the scope of the coordination of benefits section beyond what the Legislature intended. The Court therefore held that S.D. Warren was not entitled to the offset.

View complete text of Edward Damon v. S.D. Warren Co., et al.