January 2007 - Board Cases

Shaver v. Poland Spring
Bottling Corp.
WCB-320-06-01, 07/31/2006
BOARD

Company policy that employees must report injuries immediately or face termination held to be violative of the Act, which allows employees 90 days in which to report an injury.

The Board voted to reverse the hearing officer's decision in this case by a 4-to-3 vote, with the three management members voting to uphold the decision.

While at work in 2004, the employee slipped and fell on a concrete floor, striking his knee. Not believing he had an injury, he did not report the fall at the time. The next day, though, he felt something in his knee and realized he must have injured it the day before. He then reported the fall to his supervisor. The employer then terminated him, pursuant to a company policy which states, "All accidents must be reported immediately" and failure to do so "will be grounds for dismissal." The employee was aware of this policy.

The employee then filed a petition to remedy discrimination under section 353 of the Act, seeking reinstatement of his job and benefits, and back wages. Section 353 prohibits employers from discriminating against employees "for testifying or asserting" a workers' compensation claim. Hearing Officer Goodnough denied the petition, finding that the employer's action was "not substantially rooted" in the employee's exercise of his rights, but instead was "ultimately rooted" in the employer's desire for a safe workplace through early notice of safety hazards.

Officer Goodnough ruled that though the employer's policy was "unusual," it was facially neutral. He noted that it had led to a dramatic drop in workplace accidents and injuries since its institution in 2002. He also noted that the employee had attended a safety meeting the day before at which the policy was discussed.

On the employee's appeal, the Board reversed, ruling that the policy discriminated against the employee for his exercise of his rights under the Act. The Board followed the Law Court's decision in Lindsay v. Great Northern Paper Co. (532 A.2d 151, Me.1987). In Lindsay, the employer had a policy that five or more unexcused absences in a four-month period warranted suspension without pay. The employee exceeded this limit, missing two months of work due to a work-related injury. Following his suspension, he petitioned to remedy discrimination.

In Lindsay, the Law Court ruled that although the employer's policy was "facially neutral," it discriminated against workers with injuries by treating injury-related absences as unexcused absences. The policy in effect forced the employee to work when injured, defeating the purposes of the Act.

The Board found the current situation parallel to that in Lindsay, as in both cases, the employee had to choose between asserting his injury and potentially losing his job, or not reporting his injury. As the Board stated, "An Employee has a right to report a work related incident or injury without fear of retaliation by an Employer."

Unlike the hearing officer, the Board found the employer's termination of the employee "rooted substantially and significantly" in the employee's exercise of his rights under the Act. By reporting his injury the day after it happened, the employee had met the statutory time limit of 90 days for reporting an injury, and an employer cannot institute a policy that shortens the statutory notice period, as this would effectively replace the Legislature's judgment.

The Board also found that polices like the employer's have a "chilling effect" on reporting of injuries, and that there is an "inseparable nexus" between reporting injuries and exercising one's rights under the Act. Although the employer's policy was based on legitimate concerns about fraud and accident prevention, the Board concluded that upholding such policies "would have a significant negative impact on the operation of the workers' compensation system."

The Board also found that the employer's failure to promptly reinstate the employee constituted ongoing discrimination. In granting the employee's petition to remedy discrimination, it ordered that he be reinstated to his previous job with benefits, with payment of back wages until reinstatement.

Cases Accepted For Review By Law Court

The following hearing officer decisions were presented to the full Board for review, but the full Board ultimately deadlocked, resulting in an affirmation of the hearing officers' decisions.

Fernald v. Shaw's Supermarkets
WCB 01-014007, 05/11/06
HO GOODNOUGH

Employer must pay Central Maine Orthopedics usual and customary charges for its ambulatory center because facility charges are not covered under the Board's Medical Fee Schedule.

The employee underwent outpatient surgery at a Central Maine Orthopedics ambulatory center for a work-related injury. Central Maine Orthopedics billed the employer for both physician and facility charges, based on its usual and customary charges. The employer paid the physician's fees but paid only part of the facility fees, $2,645.16 of the $4,989.25 billed, claiming that the fee was not reasonable. Central Maine then petitioned for payment to recover the full amount billed.

Hearing Officer Goodnough granted CMO's petition and ordered that the entire amount be paid. He noted that the Board's Medical Fee Schedule, which lists appropriate medical charges, does not cover ambulatory surgical units like the one used in this case. When medical charges are not included in the Fee Schedule, the employer must pay the provider's usual and customary charge, that is, "the published rate it charges as an initial matter to all payors." He then found that CMO did not bill the employer beyond this rate, and that its customary charges are available for inspection at CMO facilities and on its website.

Hearing Officer Goodnough declined to assess the employer a 25% interest penalty pursuant to §318, which allows officers to assess such penalties when an employer's refusal to pay benefits is "not based on any rational grounds." Without deciding whether that provision would apply here, he found the employer's dispute was a rational one.

Babine v. Bath Iron Works Corp.
WCB: 05-011429, 6/26/06
HO GOODNOUGH

This is a companion case to Fernald v. Shaw's Supermarkets as both cases raised identical legal issues.