2001 COMP Index

15th Annual Index Supplemental Index to 1994 Cumulative Index

All Law Court, and Selected Federal Court, Superior Court, and Workers' Compensation Board, Cases from 10/31/2000 through December 2001

Agreements

Where apportionment has been settled by mediation agreement, it is res judicata on the issue; Court thus vacated subsequent arbitrator's decision on the issue. Commercial Union Ins. Co. v. Maine Employers' Ken.Sup.AP0039 06/28/2001 ATWOOD

Mediation agreements are binding as to the issues decided unless the parties indicate that the agreement is only temporary, reserve an issue, or decide an issue without prejudice. Commercial Union Ins. Co. v. Maine Employers' Ken.Sup.AP0039 06/28/2001 ATWOOD

Affirms Gross v. Hannaford Brothers that mediation agreements are binding. Rambo v. William F. Porter, Inc. WCB 98006393 10/29/2000 BOARD

Apportionment

Lump-sum settlement agreement between employee and insurer cannot undo prior arbitration decision determining apportionment among insurers in the case. Edwards v. Travelers Ins. Co. 783 A.2d 163 10/26/2001 ALEXANDER

Section 201(5) on apportionment requires disregarding subsequent, unrelated, nonwork injuries, rather than apportioning among work and nonwork injuries. Pratt v. Fraser Paper Ltd. 774 A.2d 351 07/06/2001 ALEXANDER

Subrogation is the historical underpinning of apportionment. Maine Ins. Guaranty Assoc. v. Folsom 769 A.2d 185 04/23/2001 CLIFFORD

The Maine Insurance Guaranty Association statute does not cover "subrogation recoveries," including apportionment in workers' comp cases. Maine Ins. Guaranty Assoc. v. Folsom 769 A.2d 185 04/23/2001 CLIFFORD

Where work injury combines with preexisting injury, apportionment against employer on preexisting injury is appropriate. McAdam v. United Parcel Service 763 A.2d 1173 01/09/2001 SAUFLEY

Hearing officer's decision on petition to fix, "pending apportionment," is not res judicata on apportionment as officers do not have the authority to apportion under the Act; arbitrators have exclusive authority to do so. Liberty Mutual Ins. Co. v. Maine Employers' Mutual Ken.Sup.AP0038 03/07/2001 ATWOOD

Arbitration

Employee must abide by arbitration decision in which she actively participated. Edwards v. Travelers Ins. Co. 783 A.2d 163 10/26/2001 ALEXANDER

Lump-sum settlement agreement between employee and insurer cannot undo prior arbitration decision determining apportionment among insurers in the case. Edwards v. Travelers Ins. Co. 783 A.2d 163 10/26/2001 ALEXANDER

Where apportionment had been settled by mediation agreement, is is res judicata on the issue; Court thus vacated subsequent arbitrator's decision on the issue. Commercial Union Ins. Co. v. Maine Employers' Ken.Sup.AP0039 06/28/2001 ATWOOD

Arbitrators have the exclusive authority to apportion liability under the Act. Liberty Mutual Ins. Co. v. Maine Employers' Mutual Ken.Sup.AP0038 03/07/2001 ATWOOD

Arising Out Of - Public Streets

Where the employee used the employer's truck on a trip with both business and personal errands, under the dual purpose doctrine his injuries while traveling were compensable even though they occurred after he had completed the business portion of the trip. Cox v. Coastal Products Company, Inc. 744 A.2d 347 07/02/2001 CLIFFORD

Arising Out Of - Specific Events

Plaintiff's common-law claim of emotional distress caused by employer's termination of employee dismissed as covered by the Workers' Compensation Act, as termination of employment in and of itself arises out of and in the course of employment. Perry v. Community Health & Counseling Services __F.Supp.__ 03/05/2001 KRAVCHUK

Invasion of privacy and emotional distress claims related to surveillance by private investigator hired by comp insurer did not arise in the course of employment where the surveillance occurred at the employee's home eight years after he last worked for the employer. Hawkes v. Commercial Union Ins. Co. 764 A.2d 258
01/16/2001 CALKINS

Average Weekly Wage

Award of "total compensation" vacated as based on erroneous AWW calculation and because hearing officer failed to specify whether benefits were being awarded pursuant to §212 or §213, which have different durational limits. Alexander v. Portland Natural Gas 778 A.2 343 08/27/2001 RUDMAN

Court rules that §102(4)(D), rather than (B), is appropriate method for calculating AWW where the employee has been working part-time for voluntary, not injury-related, reasons. Alexander v. Portland Natural Gas 778 A.2 343
08/27/2001 RUDMAN

The inflation factor is to be applied to the compensation rate, not the employee's AWW; the Arnold exception may be applied at the hearing officer's discretion, where the employee's postinjury earnings vary. Bernard v. Mead Publishing Division 765 A.2d 576
01/24/2001 CLIFFORD

A one-time bonus is not includible in the AWW. McAdam v. United Parcel Service 763 A.2d 1173 01/09/2001 SAUFLEY

Averaging method of calculating AWW is applicable in all cases where employee's preinjury wages vary. McAdam v. United Parcel Service 763 A.2d 1173 01/09/2001 SAUFLEY

Benefits (Fringe)

The fact that the employee's pension benefits would be reduced if he earned more than $100 per week did not render him unavailable for work in regards to determining his level of incapacity. Hogan v. Great Northern Paper, Inc. 2001ME162 01/28/2001 ALEXANDER

Maximum benefit level is a floating cap, and increase is to be applied even though benefits are already being received. Dudley v. Burns & Roe Construction Group 784 A.2d 511 11/07/2001 SAUFLEY

A one-time bonus is not includible in the average weekly wage. McAdam v. United Parcel Service 763 A.2d 1173 01/09/2001 SAUFLEY

Board Authority

Workers' Compensation Board, not Court, has jurisdiction of overpayment issues. Holt v. SAD No. 6 782 A.2d 779 10/22/2001 RUDMAN

The conflict of interest rule, which permits hearing officers to disqualify independent medical examiners, is not inconsistent with §312, which gives the Board authority to appoint examiners, as the Board may delegate its disqualification authority. Laskey v. S.D. Warren 774 A.2d 358 07/11/2001 ALEXANDER

Clerical Error

Hearing officer's statement that employee was "totally incapacitated" in award of "100% partial" benefits did not constitute a clerical error and thus could not be vacated as such. Chmielewski v. J.C Management 2001 ME 160
11/28/2001 DANA

Compensation Rate

The inflation factor is to be applied to the compensation rate, not the employee's average weekly wage; the Arnold exception may be applied at the hearing officer's discretion, where the employee's postinjury earnings vary. Bernard v. Mead Publishing Division 765 A.2d 576 01/24/2001 CLIFFORD

Divorce

In divorce, wage replacement and medical costs of lump-sum settlement award were martial property to extent they covered the period during which the employee was married; otherwise, they were nonmarital. Doucette v. Washburn 766 A.2d 578 02/22/2001 SAUFLEY

Dual Persona Doctrine

Where the employee used the employer's truck on a trip with both business and personal errands, under the dual purpose doctrine his injuries while traveling were compensable even though they occurred after he had completed the business portion of the trip. Cox v. Coastal Products Company, Inc. 744 A.2d 347 07/02/2001 CLIFFORD

Earning Capacity

Post-injury earnings may not accurately reflect earning capacity where the post-injury employer made accommodations for the employee's injury. Alexander v. Portland Natural Gas 778 A.2d 343
08/27/2001 RUDMAN

Loss of earning capacity properly found, even though no wage reduction, where employee's postinjury job was based largely on the employer's accommodations to his physical limitations. Bernard v. Mead Publishing Division 765 A.2d 576 01/24/2001 CLIFFORD

Evidence

Employers may obtain relevant medical information regarding preexisting injuries without a Board order. McAdam v. United Parcel Service 765 A.2d 576
01/09/2001 SAUFLEY

Exclusivity Defense

Plaintiff's common-law claim of emotional distress caused by employer's termination of employee dismissed as covered by the Workers' Compensation Act, as termination of employment in and of itself arises out of and in the course of employment. Perry v. Community Health & Counseling Services __F.Supp.__ 03/05/2001 KRAVCHUK

Fraud

Under §360(2), repayment by employee of "any compensation" obtained through fraud includes medical payments and attorney's fees, as well as indemnity benefits. Auqa-Tech Marine Construction v. Mullett Kenn.Sup.AP0005
11/06/2000 STUDSTRUP

Hearing Officers

The conflict of interest rule, which permits hearing officers to disqualify independent medical examiners, is not inconsistent with §312, which gives the Board authority to appoint examiners, as the Board may delegate its disqualification authority. Laskey v. S.D. Warren 774 A.2d 358 07/11/2001 ALEXANDER

Hearing officer's decision on petition to fix, "pending apportionment," is not res judicata on apportionment as officers do not have the authority to apportion under the Act; arbitrators have exclusive authority to do so. Liberty Mutual Ins. Co. v. Maine Employers' Mutual Ken.Sup.AP0038 03/07/2001 ATWOOD

Incapacity, Extent Of - General Rules

Employee who voluntarily resigns her job for non-injury reasons is no longer entitled to partial incapacity benefits, as this constitutes the refusal of a bona fide offer of reasonable employment. Holt v. SAD No. 6 782 A.2d 779 10/22/2001 RUDMAN

Employee with partial physical disability not entitled to 100% partial or total benefits without proving that work is unavailable to her in her local community. Morse v. Fleet Financial Group 782 A.2d 769 09/13/2001 ALEXANDER

Where employee is incapacitated by combination of work injury and subsequent nonwork injury unrelated to the compensable injury, only the effects of the work injury may be considered in determining whether the employee is entitled to benefits for total incapacity or partial compensation. Pratt v. Fraser Paper Ltd. 774 A.2d 351 07/06/2001 ALEXANDER

A work injury does not become a nonwork injury simply because the employee has reached the 400-week limitation for that injury. Cust v. University of Maine 766 A.2d 566
01/09/2001 SAUFLEY

Hearing officer erred in applying Title 39-A to determine extent of incapacity for a 1988 date of injury. Case remanded for application of Title 39, §55-B. Stilson v. Dexter Shoe Co. __A.2d__
12/05/2000 PER CURIAM

The 260-week limitation on partial benefits includes weeks during which total benefits are received. Abbott v. SAD No. 53 762 A.2d 546 11/13/2000 CLIFFORD

The 52-week extension to the 260-week limitation on partial benefits, effective 1/1/99, may not be applied retroactively to benefits that had expired before 1/1/99. Abbott v. SAD No. 53 53 762 A.2d 546 11/13/2000 CLIFFORD

Incapacity, Extent Of - Specific Cases

The fact that the employee's pension benefits would be reduced if he earned more than $100 per week did not render him unavailable for work in regards to determining his level of incapacity. Hogan v. Great Northern Paper, Inc. 2001 ME 162 11/28/2001 ALEXANDER

Court will not categorically refuse to consider impact of collateral financial consequences on employee's availability for work, but would do so only in "extreme" cases. Hogan v. Great Northern Paper, Inc. 2001 ME 162
11/28/2001 ALEXANDER

Hearing officer's statement that employee was "totally incapacitated" in award of "100% partial" benefits did not constitute a clerical error and thus could not be vacated as such. Chmielewski v. J.C Management 2001 ME 160
11/28/2001 DANA

Partially incapacitated employee's full-time enrollment in school as part of voc rehab program does not render him "unavailable to work" and thus eligible for 100% partial benefits. Johnson v. Shaw's Distribution Center 760 A.2d 1057 10/31/2000 SAUFLEY

Rehabilitation Administrator's finding that employee is suitable for full-time vocational rehabilitation does not preclude hearing officer, as matter of res judicata, from finding that the employee is only partially incapacitated. Johnson v. Shaw's Distribution Center 760 A.2d 105710/31/2000 SAUFLEY

Award of "total compensation" vacated as based on erroneous average weekly wage calculation and because hearing officer failed to specify whether benefits were being awarded pursuant to §212 or §213, which have different durational limits. Alexander v. Portland Natural Gas 778 A.2d 343 08/27/2000 RUDMAN

Independent Medical Examinations

Conflicts of interest of independent medical examiners may be found based on industry-wide, general contacts and not just a specific relationship between the examiner and one of the parties to the case. Laskey v. S.D. Warren 774 A.2d 358 07/11/2001 ALEXANDER

The conflict of interest rule, which permits hearing officers to disqualify independent medical examiners, is not inconsistent with §312, which gives the Board authority to appoint examiners, as the Board may delegate its disqualification authority. Laskey v. S.D. Warren 774 A.2d 358 07/11/2001 ALEXANDER

Insurance

The Maine Insurance Guaranty Association statute does not cover "subrogation recoveries," including apportionment in workers' comp cases. Maine Ins. Guaranty Assoc. v. Folsom 769 A.2d 185 04/23/2001 CLIFFORD

Under the Maine Insurance Guaranty Association statute, an employee must first exhaust other insurance sources before looking to MIGA for coverage. Maine Ins. Guaranty Assoc. v. Folsom 769 A.2d 185 04/23/2001 CLIFFORD

Neither the workers' compensation carrier nor its agent, a case management provider, are legally obligated to obtain an employee's authorization before accessing the employee's medical records for a work-related injury or disease. Velishka v. Concentra Managed Care, Inc. York Sup.00149 04/06/2001 BRENNAN

Jurisdiction

Workers' Compensation Board, not Court, has jurisdiction of overpayment issues. Holt v. SAD No. 6 782 A.2d 779 10/22/2001 RUDMAN

Longshore Act

Longshore Act notice requirements are to be liberally construed, and were met where though employer did not know of deposition of employee, it was allowed to see a transcript and cross-examine the employee afterward. Bath Iron Works v. Director, OWCP 244 F.3d 222 04/05/2001 COFFIN

Res judicata principles do not apply to §922 hearings for modification of award under the Longshore Act. Bath Iron Works v. Director, OWCP 244 F.3d 222
04/05/2001 COFFIN

Insurer liability in occupational disease cases under Longshore Act is assigned as of the date of disability, which is the date the employee becomes aware of the relationship between his work and the disabling condition. Bath Iron Works v. Director, OWCP 244 F.3d 222 04/05/2001 COFFIN

Lump-sum Settlements

Lump-sum settlement agreement between employee and insurer cannot undo prior arbitration decision determining apportionment among insurers in the case. Edwards v. Travelers Ins. Co. 783 A.2d 163 10/26/2001 ALEXANDER

In divorce, wage replacement and medical costs of lump-sum settlement award were martial property to extent they covered the period during which the employee was married; otherwise, they were nonmarital. Doucette v. Washburn 766 A.2d 578 02/22/2001 SAUFLEY

The permanent impairment benefits of a lump-sum settlement award are nonmarital property, as they represent lost body parts and functions and thus are "uniquely personal." Doucette v. Washburn 766 A.2d 578 02/22/2001 SAUFLEY

Summary judgment denied on issue of whether lump-sum settlement documents released employer from liability for all claims where there was ambiguity, a question of fact, as to whether release extended to all claims or just workers' comp claims. Hawkes v. Commercial Union Ins. Co. 764 A.2d 258 01/16/2001 CALKINS

Mediation

Mediation agreements are binding as to the issues decided unless the parties indicate that the agreement is only temporary, reserve an issue, or decide an issue without prejudice. Commercial Union Ins. Co. v. Maine Employers' Ken.Sup.AP0039 06/28/2001 ATWOOD

Where apportionment had been settled by mediation agreement, it is res judicata on the issue; thus Court vacated subsequent arbitrator's decision on the issue. Commercial Union Ins. Co. v. Maine Employers' Ken.Sup.AP0039 06/28/2001 ATWOOD

Mental Injury And Stress

Plaintiff's common-law claim of emotional distress caused by employer's termination of employee dismissed as covered by the Workers' Compensation Act, as termination of employment in and of itself arises out of and in the course of employment. Perry v. Community Health & Counseling Services __ F.Supp. __ 03/05/2001 KRAVCHUK

Notice

Longshore Act notice requirements are to be liberally construed, and were met where though employer did not know of deposition of employee, it was allowed to see a transcript and cross-examine the employee afterward. Bath Iron Works v. Director, OWCP 244 F.3d 222 04/05/2001 COFFIN

Occupational Disease Law

Insurer liability in occupational disease cases under Longshore Act is assigned as of the date of disability, which is the date the employee becomes aware of the relationship between his work and the disabling condition. Bath Iron Works v. Director, OWCP F.3d 04/05/2001 COFFIN

Overpayments

Workers' Compensation Board, not Court, has jurisidiction of overpayment issues. Holt v. SAD No. 6 782 A.2d 779 10/22/2001 RUDMAN

Payment Without Prejudice

Section 214(1)(A), refusal of bona fide job offer, is applicable where employer is paying without prejudice. Roe v. Yarmouth Lumber, Inc. 2001 ME 159 11/20/2001 CLIFFORD

Permanent Impairment

The permanent impairment benefits of a lump-sum settlement award are nonmarital property, as they represent lost body parts and functions and thus are "uniquely personal." Doucette v. Washburn 766 A.2d 578 02/22/2001 SAUFLEY

Personal Injury

Invasion of privacy which covers economic claims and trespass is not a personal injury and thus not covered by the Act. Hawkes v. Commercial Union Ins. Co. 764 A.2d 258 01/16/2001 CALKINS

Preexisting Condition/Combined Effects

Where employee is incapacitated by combination of work injury and subsequent nonwork injury unrelated to the compensable injury, only the effects of the work injury may be considered in determining whether the employee is entitled to benefits for total incapacity or partial compensation. Pratt v. Fraser Paper Ltd. 774 A.2d 351 07/06/2001 ALEXANDER

Section 201(5) on apportionment requires disregarding subsequent, unrelated, nonwork injuries, rather than apportioning among work and nonwork injuries. Pratt v. Fraser Paper Ltd. 774 A.2d 351 07/06/2001 ALEXANDER

Under 201(6), if two work injuries combine to produce a disability and one of the injuries predates 1/1/93, the law in effect at the time of the pre-1993 injury applies. McAdam v. United Parcel Service 774 A.2d 351 01/09/2001 SAUFLEY

A work injury does not become a nonwork injury simply because the employee has reached the 400-week limit for that injury. McAdam v. United Parcel Service 774 A.2d 351 01/09/2001 SAUFLEY

Employers may obtain relevant medical information regarding preexisting injuries without a Board order. McAdam v. United Parcel Service 774 A.2d 351
01/09/2001 SAUFLEY

Where work injury combines with preexisting injury, apportionment against employer on preexisting injury is appropriate. McAdam v. United Parcel Service 774 A.2d 351 01/09/2001 SAUFLEY

Refusal Of Offer

Court will not categorically refuse to consider impact of collateral financial consequences on employee's availability for work, but would do so only in "extreme" cases. Hogan v. Great Northern Paper, Inc. 2001 ME 162 11/28/2001 ALEXANDER

Section 214(1)(A), refusal of bona fide job offer, is applicable where employer is paying without prejudice. Roe v. Yarmouth Lumber, Inc. 2001 ME 159 11/20/2001 CLIFFORD

Employee who voluntarily resigns her job for non-injury reasons is no longer entitled to partial incapacity benefits, as this constitutes the refusal of a bona fide offer of reasonable employment. Holt v. SAD No. 6 782 A.2d 779 10/22/2001 RUDMAN

Remedies

Under the Maine Insurance Guaranty Association statute, an employee must first exhaust other insurance sources before looking to MIGA for coverage. Maine Ins. Guaranty Assoc. v. Folsom 769 A.2d 185 04/23/2001 CLIFFORD

Res Judicata

Res judicata principles dot not apply to §922 hearings for modification of award under the Longshore Act. Bath Iron Works v. Director, OWCP 244 F.3d 222
04/05/2001 COFFIN

Rehabilitation Administrator's finding that employee is suitable for full-time vocational rehabilitation does not preclude hearing officer, as matter of res judicata, from finding that the employee is only partially incapacitated. Johnson v. Shaw's Distribution Center
760 A.2d 1057 10/31/2000 SAUFLEY

Where apportionment had been settled by mediation agreement, is res judicata on the issue; thus Court vacated subsequent arbitrator's decision on the issue. Commercial Union Ins. Co. v. Maine Employers' Ken.Sup.AP0039 06/28/2001 ATWOOD

Hearing officer's decision on petition to fix, "pending apportionment," is not res judicata on apportionment as officers do not have the authority to apportion under the Act; arbitrators have exclusive authority to do so. Liberty Mutual Ins. Co. v. Maine Employers' Mutual Ken.Sup.AP0038 03/07/2001 ATWOOD

Statute Of Limitations

The employee's reduction of duties, on the advice of an occupational health nurse, does not constitute a payment under the Act to toll the 10-year statute of repose. Dahms v. Osteopathic Hospital of Maine 782 A.2d 774
09/13/2001 CALKINS

The word "payment" in the statutes of limitation and repose requires an exchange of money, not another type of benefit. Dahms v. Osteopathic Hospital of Maine 782 A.2d 774 09/13/2001 CALKINS

Statutory Construction

In a multi-injury case, the law in effect at the date of the last injury governs. Maine Ins. Guaranty Assoc. v. Folsom 769 A.2d 185 04/23/2001 CLIFFORD

Under 201(6), if two work injuries combine to produce a disability and one of the injuries predates 1/1/93, the law in effect at the time of the pre-1993 injury applies. Cust v. University of Maine 766 A.2d 566 01/09/2001 SAUFLEY

Hearing officer erred in applying Title 39-A to determine extent of incapacity for a 1988 date of injury. Case remanded for application of Title 39, §55-B. Stilson v. Dexter Shoe Co. 762 A.2d 936 12/05/2000 PER CURIAM

The 52-week extension to the 260-week limitation on partial benefits, effective 1/1/99, may not be applied retroactively to benefits that had expired before 1/1/99. Abbott v. SAD No. 53 762 A.2d 546 11/13/2000 CLIFFORD

The 260-week limitation on partial benefits includes weeks during which total benefits are received. Abbott v. SAD No. 53 11/13/2000 CLIFFORD

Subrogation

Subrogation is the historical underpinning of apportionment. Maine Ins. Guaranty Assoc. v. Folsom 769 A.2d 185 04/23/2001 CLIFFORD

Subrogation is not limited to benefits already accrued by an employee but includes future benefits as well. Maine Ins. Guaranty Assoc. v. Folsom 769 A.2d 185 04/23/2001 CLIFFORD

The Maine Insurance Guaranty Association statute does not cover "subrogation recoveries," including apportionment in workers' comp cases. Maine Ins. Guaranty Assoc. v. Folsom 2001 ME 63 04/23/2001 CLIFFORD

Suspension Of Benefits

Loss of earning capacity properly found, even though no wage reduction, where employee's postinjury job was based largely on the employer's accommodations to his physical limitations. Bernard v. Mead Publishing Division 765 A.2d 576 01/24/2001 CLIFFORD

In suspending benefits for employees who have reached the 400-week maximum limit, employers must follow §205(9). Russell v. Russell's Appliance Service __A.2d__ 01/12/2001 CALKINS

Varying Rates

The inflation factor is to be applied to the compensation rate, not the employee's AWW; the Arnold exception may be applied at the hearing officer's discretion, where the employee's postinjury earnings vary. Bernard v. Mead Publishing Division 765 A.2d 576
01/24/2001 CLIFFORD

Averaging method of calculating AWW is applicable in all cases where employee's preinjury wages vary. McAdam v. United Parcel Service 763 A.2d 1173 01/09/2001 SAUFLEY

Vocational Rehabilitation

Rehabilitation Administrator's finding that employee is suitable for full-time vocational rehabilitation does not preclude hearing officer, as matter of res judicata, from finding that the employee is only partially incapacitated. Johnson v. Shaw's Distribution Center 760 A.2d 1057 10/31/2000 SAUFLEY

Employees must pay benefits to employees in voc rehab programs for lost earnings due to their injury but not due to their enrollment in a voc rehab program. Johnson v. Shaw's Distribution Center 760 A.2d 1057 10/31/2000 SAUFLEY

Voluntary Withdrawal From Labor Market

Employee who voluntarily resigns her job for non-injury reasons is no longer entitled to partial incapacity benefits, as this constitutes the refusal of a bona fide offer of reasonable employment. Holt v. SAD No. 6 782 A.2d 779 10/22/2001 RUDMAN

Work Search - General Rules

Employee with partial physical disability not entitled to 100% partial or total benefits without proving that work is unavailable to her in her local community. Morse v. Fleet Financial Group 782 A.2d 769 09/13/2001 ALEXANDER