Marcoux v. Parker Hannifin/
Nichols Portland
2005 ME 107, 09/19/2005
LEVY
Employer does not have unqualified immunity over employees hired through a temporary agency. Case not amenable to summary judgment where factual questions existed regarding whether employer or temporary agency had direction and control of employee.
The Court denied a motion for summary judgment on the issue of whether an employer has immunity when the injured employee is employed through a temporary help agency, finding that it involved factual and not just legal issues.
The employer, Nichols, was a manufacturing and production company which contracted with Kelly, a temporary staffing company. One of Kelly's full-time managers worked at the employer's site, coordinating temporary Kelly workers assigned to the site.
On the date of injury, the manager was on site verifying the hours of the Kelly employees. She fell in an aisle while trying to avoid a stain on the floor. She then received workers' compensation benefits from Kelly for her injuries. Subsequently, she filed a negligence suit against Nichols, and Nichols moved for summary judgment on the grounds that it had immunity from suit as an employer covered by the Workers' Compensation Act. This appeal followed the Superior Court's denial of that motion.
On appeal, the employer argued that genuine issues of material fact, which would preclude summary judgment, did not exist. First, it claimed that it had unqualified immunity over Kelly employees regardless of whether they were under its direction and control. It also claimed that the written contract between Kelly and Nichols was determinative of whether there was immunity.
The Court first held that the immunity of an employer of temporary employees is not unqualified. Specifically, there is no immunity when the employee is working for a 3rd party employer but is under the direction and control of the temporary help agency. As that was a factual dispute here, it was appropriate for trial.
Correspondingly, Justice Levy found that each party's interpretation of section 104 on this issue had merits. Nichols argued that section 104 is intended to make a third-party employer's liability the same for temporary and regular employees. The Court found this plausible based on the first sentence of the relevant provision, which states that an employer is "entitled to the same immunity from civil actions by employees of the temporary help service as is granted...to the employer's own employee." Justice Levy also noted that this sentence makes no distinction among different temporary employees, such as one in a supervisory capacity as here.
Meanwhile, the employee argued that she was more of an independent contractor than an employee because section 104 defines a temporary help service as one where an agency assigns its employees "to work under the direction and control of the 3rd party." The employee argued that she did not work under the direction and control of Nichols.
The Court found this sentence in the statute to be ambiguous and looked to its legislative history for clarification. According to the statement of facts, the "direction and control" amendment was added specifically to clarify that immunity applies only when the third-party employer does in fact have direction and control over the temporary employee, making it consistent with the Act's intentions. In this case, there was a factual dispute regarding under whose direction the employee was working, thus it was not amenable to summary judgment.
The Court also denied the employee's argument that employment status is a pure question of law rather than of fact and law. Numerous questions of fact are involved in determining employment status. Many of those were in dispute here, including who determined the employee's work schedule or paid her salary, whether Nichols had as much control over this employee as other Kelly employees, and whether Nichols itself selected the employee for the position.
Meanwhile, although this case proceeded to trial, Justice Levy noted that the immunity provision still protects employers from unnecessary lawsuits because appeals from summary judgments regarding immunity are immediately reviewed.
Finally, Nichols argued that even conceding the above points, a written contract between Nichols and Kelly established that the employee would work under Nichols' direction and control as an onsite coordinator. The contract stated that any services provided by Kelly employees to Nichols were to be "performed under the direction, supervision and control" of Nichols.
The Court found the contract ambiguous, however, because in a "Description of the Work to be Performed" by Kelly employees, it listed only light industrial and office clerical work. It failed to mention the type of supervisory position held by the employee, which involved assessing and filling staffing needs, then overseeing the relationships between Kelly employees and Nichols' managers. Thus, Justice Levy stated that it was "far from clear" whether the employee's services were contemplated by the parties to be covered by their contract. Such a disputed fact was also appropriate for a trier of fact, not summary judgment.
Leighton v. S.D. Warren
2005 ME 111, 10/20/2005
SAUFLEY
Employee who claims that 10-year statute of limitation is tolled by a subsequent medical payment related to the initial injury has burden of proving that employer had contemporaneous notice of this fact when making the payment.
The Court held that the hearing officer had properly allocated the burdens of proof among the parties in regards to whether the 10-year statute of limitations is tolled by a medical payment for an injury in part related to the original compensable injury.
Following a 1983 work injury, the employee's right ring finger was amputated. After follow-up surgeries to repair nerve damage, he returned to regular duty work in 1987. S.D. Warren's predecessor paid his medical bills and incapacity benefits, as well as permanent impairment benefits. The last medical payment for this injury was on November 18, 1991.
In 2000, the employee suffered a crush injury, resulting in amputation of the right middle fingertip and subsequent surgeries to repair nerve damage. S.D. Warren paid medical bills and incapacity benefits for that injury. The employee returned only to light-duty work, but had to be discharged in January 2003 when light-duty work was no longer available. Since then, he has received total incapacity benefits.
In December 2002, he petitioned for restoration of the 1983 injury. He claimed that the statute of limitations had tolled for the 1983 injury because the employer had contemporaneous notice that payments for the 2000 injury included the 1983 injury as well. He testified at hearing that he had reported to his treating physician and to S.D. Warren's physicians that after 2000 he was disabled from the combined effects of the 1983 and 2000 injuries. The hearing officer denied the petition on the basis that the employer had not been properly notified that the employee was still suffering the effects of the 1983 injury and that the treatment he received after the 2000 injury was in part related to his 1983 injury. The Law Court affirmed.
The 10-year statute of limitations, providing that no petitions may be filed more than 10 years after the date of the last payment under the Act, may be tolled if the employer has "contemporaneous notice" that payments for a subsequent injury are partly related to the earlier injury, Pottle v. Bath Iron Works (551 A.2d 112, Me.1988). In Pottle, which dealt with the two-year statute of limitations, the Court held that while it was eventually determined that the earlier injury still contributed to the employee's incapacity, because the employee did not provide contemporaneous notice to the employer when the employer made medical payments for the later injury, the statute was not tolled. As the Court has reiterated, contemporaneous notice requires that the employer was aware that its payment for medical treatment for a recent injury was in part related to an earlier injury.
The Court later applied the Pottle holding to the 10-year statute of limitations, Klimas v. Great Northern Paper Co. (582 A.2d 256, 1990)(remanded because the commission had failed to make a finding regarding such notice).
In the present case, the last medical payment for the 1983 injury was November 18, 1991, thus the statute should have expired by November 2001. When the employee claimed that medical payments by the employer after 2001 were partly related to the 1983 injury and tolled the 10-year statute, the hearing officer put the burden of proving this on the employee. On appeal, the Court addressed the parties' burdens on the statute of limitations.
First, when the employer asserts the statute as an affirmative defense, it bears the burden of proof. However, once the employee claims that the statute has been tolled by a subsequent medical payment, the employee bears the burden of proving that the employer had contemporaneous notice that this payment related to the initial injury.
The Court noted that this comports with fairness and convenience because the employee has the most control over evidence regarding whether he provided such notice. Such evidence includes medical records linking the two injuries, awareness by the employer of such records, or an assertion of belief by the employee to the employer that the two injuries were related.
The Court affirmed that the hearing officer had correctly allocated the burdens and that the employee had failed to meet his burden of proof. The Court agreed that the existence of a 1983 permanent impairment agreement did not suffice to prove that payments 17 years later were related to that 1983 injury. Furthermore, the employee had worked regular duty for 13 years before the second injury and although both injuries were to the right hand, they were separate and discrete to the point that the physician on the second injury stated that all of his treatment related solely to that injury.
Temm v. S.D.Warren Company
2005 ME 118, 12/06/2005
LEVY
Offset of disability benefits allowed for insurance plan in existence on
12/31/1992 but renewed after that date, where employer's plan is silent on issue of offsets.
The Court interpreted the coordination of benefits provision, section 221, regarding its application to a plan in existence before but renewed after section 221 was enacted. After working for the employer since 1965, first as an hourly wage and then a salaried worker, the employee was laid off in 1997. He then petitioned for incapacity benefits for back and leg pain resulting from a 1994 injury, and was denied. In 1998, the employer began paying him disability retirement benefits because of his back and leg injuries. The disability plan for hourly employees specifically provided a dollar-for-dollar offset from workers' compensation benefits, while the plan for salaried employees did not address the offset.
In 2001, the employee filed benefits to restore and fix compensation for the 1994 injury, and for award and to fix compensation for one injury in 1995 and two in 1996. The hearing officer found two of the injuries compensable, and also awarded the employer an offset for the retirement benefits. The officer specifically found that even though the disability plan existed before the adoption of Title 39-A and section 221 on coordination of benefits, section 221 and not the prior provision applied because the plan was renewed after the adoption of Title 39-A. The employee appealed the offset of benefits, but the Law Court affirmed.
The Court stated that section 221 of Title 39-A governs coordination of benefits, such as here, for employees receiving both compensation and disability retirement benefits. Like its predecessor in Title 39, it requires an offset of other benefits from compensation benefits. Section 221(10) provides an exception, however, so that disability plans in existence on
12/31/1992 do not require coordination of benefits. Otherwise, disability plans "entered into or renewed on or after January 1, 1993" may specify that its payments are not to be coordinated per section 221, otherwise coordination applies.
According to the hearing officer in this case, because the disability plan was in existence as of 12/31/1992, coordination of benefits was allowed because the plan was renewed after that date. As the Court noted, plans renewed after that date may also expressly prohibit an offset. The issue was how to apply the law in this case where the plan that began before
1/1/93, but was renewed after that date, does not indicate whether or not coordination is allowed. The Court found that section 221(10) did not address this issue. The Court therefore looked to the legislative intent for the offset provision.
Justice Levy noted that section 221 was based, as were many parts of the new Act, on Michigan workers' compensation law. The justice noted, however, that while Maine's former Act also required coordination of benefits, this was a novel section in the revised Michigan Act. Thus, the Michigan legislature excluded from coordination of benefits those plans in effect before the section's enactment in order to protect retirees who retired presuming that their workers' comp and disability retirement benefits would not be coordinated. In Maine, where workers already expected their benefits to be coordinated, there was no similar need to protect against retroactive application of the offset.
The Court added that the statement of fact to the prior coordination section in Title 39 noted that its purpose was to prevent double recovery and stacking of benefits. The statement of fact for section 221 states that it is intended to carry on the former coordination provision, which comports with the overall 1992 reform goal of reducing workers' compensation costs. The Court thus held that the intent of section 221 is to apply coordination of benefits unless an employer plan expressly states otherwise. As the disability plan here was silent on this issue, coordination would be applied, and the employee's retirement benefits would be offset from his comp benefits.
