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Pearson v. Freeport School Dept. Notice to an employer of a work injury is not necessarily equivalent to notice of a claim for benefits and thus does not trigger application of the 14-day rule. The fact that employer admitted to 14-day rule violation in memorandum of payment while simultaneously filing a second notice of controversy, where no violation had in fact occurred, did not negate employer's right to contest employee's claim of a 14-day rule violation. This case primarily addresses the distinction between notice of an injury and notice of a claim for benefits in the context of the 14-day rule, which requires employers with notice or knowledge of a claim for incapacity benefits to accept or controvert the claim within 14 days of such notice, WCB Rule ch. 1, §1. The employee taught in a demanding elementary school. As a result, she worked eleven to twelve hours a day, with no breaks from students and extensive after-school work. In May 2002, she was hospitalized four days for depression, which she promptly informed the school principal had been aggravated by work stress. She received paid time off for the remaining school year through August 2002. She also requested and was granted a leave of absence without pay for the following academic year. On January 23, 2003, she told the school department's business manager that her time off was because work-related stress had aggravated her depression. The business manager promptly filed a report of injury and notice of controversy for a date of injury of August 29, 2002, the date the unpaid leave began. The employee then petitioned for benefits and medical payments for dates of injury of March 18, 2002 and August 29, 2002, with incapacity beginning on August 29. On November 14, 2003, the school department filed a second first report of injury and NOC for the March 2002 date of injury. It also filed a memorandum of payment, voluntarily paying a $50.00 penalty because it believed it had not filed a timely NOC in response to the petition asserting a March 18, 2002 date of injury. The hearing officer found that the employee's May 2002 report to the principal constituted timely notice of an injury; however, he found that the employer had not violated the rule to pay or controvert within 14 days because it did not know that a claim for incapacity benefits was being asserted until January 2003. At that point, the employer filed a timely NOC. The hearing officer held that this NOC covered both the August 2002 and March 2002 dates of injury because they were "one and the same" emotional stress injury and it was "clear" the employer intended to cover both dates. Finding no 14-day rule violation, the officer then denied benefits because the employee failed to meet the high standard for a mental stress claim of proving work stress that was "extraordinary and unusual." The employee appealed claiming that the employer had violated the 14-day rule, but the Court affirmed. The employee argued that the employer's memorandum of payment acknowledging that it filed an untimely notice of controversy constituted conclusive proof of a rule violation. She further argued that she was entitled to benefits from the date of incapacity in August 2002 and not the date of her petition in October 2003, pursuant to Bridgman v. S.D. Warren Co. (872 A.2 961, Me.2005). The Court agreed that employers who file late notices of controversy must pay total benefits from the date of incapacity, but it affirmed the hearing officer's finding that the employer's January 2003 NOC was timely filed and covered both the March and August injuries as one continuous injury. As a factual finding, the hearing officer's determination of one injury was not subject to review, the Court stated. Furthermore, the January NOC had achieved its goal of identifying the employer's intention to contest the claim, because by the time the employee filed her petition for award, the employer's claim was proceeding through the mediation process. The Court dismissed the employee's claim that the memorandum of payment filed by the employer in November 2003, in which the employer incorrectly took responsibility for a 14-day rule violation and paid a $50 penalty, constituted acceptance of the claim. As the Court noted, the employer had simultaneously filed a second NOC restating its intent to contest the employee's claims. The Court, in finding no violation, said it would be inconsistent with the purpose of the 14-day rule to impose a penalty upon an employer who had in fact over-complied with the rule. Finally, the Court rejected the employee's assertion that once the employer became aware of her stress injury in May 2002, it had a duty to pay or controvert. As the Court pointed out, knowledge of an injury is not the same as knowledge of a claim for incapacity benefits. The employee must give some indication that she is seeking incapacity benefits to trigger the employer's obligation to pay or controvert. In this case, although the employee had informed the employer in May 2002 that she suffered from work-related stress, she also took unpaid leave to handle it. It was not until the employee's conversation with the school department business manager in January 2003 that she indicated she would be seeking workers' compensation benefits for her condition. Thus, the hearing officer correctly found that January 2003 was the first date that triggered the employer's obligation to pay or controvert, which it properly did within 14 days. Williams v. Tyson's Foods, Inc. Employee fired from post injury job due to excessive lateness because of childcare difficulties remains entitled to benefits as termination is not found to be her fault. Neither the plain meaning nor legislative history of §214 support requiring employees who have worked at a postinjury job less than 100 weeks and who are fired for cause to forfeit benefits. The Court examines §214(1)(E), which provides that an employee who has worked at a postinjury job for less than 100 weeks and loses the job "through no fault of the employee" remains entitled to benefits. After a knee injury in June 2002, the employee returned on light duty. Because of childcare problems, she was repeatedly late for work, which led to her termination in February 2003. She then underwent knee surgery, which temporarily incapacitated her. She filed for benefits beginning on the date of termination and ending in July 2003. The employer argued that pursuant to §214(1)(E), the employee lost her right to benefits because she lost her job for fault. The hearing officer determined that the employee was not at fault and remained entitled to partial incapacity benefits. On the employer's appeal, the Law Court affirmed, finding that neither the plain meaning of the statute nor its legislative history support requiring an employee who loses her job because of childcare difficulties to forfeit benefits. As Justice Alexander noted, §214(1) does not plainly address whether there are consequences for employees who have been terminated postinjury due to fault; it only refers to those not at fault. Before the enactment of §214 in 1992, the Act did not have an analogous section pertaining to fault. In several decisions, however, the Law Court held that benefits would not be affected if an employee were fired from postinjury employment for fault. These cases included termination for failing a drug test, Cote v. Great Northern Paper Co. (611 A.2d 58, 1992), and for dishonesty, Cousins v. Georgia-Pacific Corp. (599 A.2d 73, 1991). The hearing officer had relied on the only §214 case, Bureau v. Staffing Network, Inc. (678 A.2d 583, 1996), which held that postinjury termination of an employee for cause did not constitute a refusal of a bona fide offer of employment by the employee, thus benefits could not be suspended on that basis. The Bureau Court explained that §214 is based on a Michigan statute that codifies the so-called "reasonable employment" doctrine, under which employers may reduce benefits by offering light duty work. The Court did not find the Michigan law helpful, however, because it refers to employees who have lost their jobs "for whatever reason," while the Maine Legislature changed the language to refer to employees who lost jobs "through no fault" of their own. The Court agreed with the hearing officer's finding, however, as stated in Bureau, that §214 neither provides for nor prohibits an award for employees who have been terminated for fault. The officer reasoned that the Legislature intended some consequence besides forfeiture of benefits for such employees. The Court agreed that neither the plain meaning nor the legislative history of §214 support requiring employees who have worked at a postinjury job less than 100 weeks and who are fired for cause to forfeit benefits. Instead, as Justice Alexander wrote, it "merely establishes a guideline for awarding wage-loss benefits" to such employees. The hearing officer, not finding a definition of fault in the Act, had relied on the definition of "misconduct" in the Maine Employment Security Law, which is, "a culpable breach of the employee's duties or obligations to the employer or a pattern of irresponsible behavior." The officer found that the employee's tardiness due to childcare difficulties was not culpable or irresponsible behavior, thus the employee's termination was not for fault. The Court affirmed this finding as a reasonable application of the statute. Flickinger v. Oakhurst Dairy Employee receiving total benefits who loses job post injury for insubordination does not lose benefits, as fault provision applies only to partial benefits. The employee injured his ankle at work for Oakhurst Dairy in January 2004. That day, a coworker who saw him limping called him a wimp and a "New York pussy." In turn, the employee shoved and spat on the coworker. The employee then left a ranting message on his supervisor's machine threatening the company if it failed to give him compensation benefits for his ankle injury. The employer terminated him that day for fighting and insubordination. After receiving medical treatment paid by the employer, the employee did not work again until May 18, 2004. On his petition for award, the hearing officer found that he was unable to work from the date of injury until May 18th and granted him total incapacity benefits pursuant to section 212, title 39-A. The employer appealed the award claiming that section 214(1)(D) and (E), which state that an employee who works post injury and loses that job "through no fault" of his own remains entitled to benefits. The employer argued that as the employee here provoked his own firing he was not entitled to benefits. As the Court determined, however, section 214 applies only to partial benefits. The employee was awarded total incapacity benefits pursuant to section 212, which has no similar language regarding fault. The Court additionally found "no legislative intent" to import the fault language regarding partial benefits to total incapacity benefits, especially when, as here, the employee was unable to work. In concurrence, Chief Justice Saufley remarked that termination for fault issues "generate substantial confusion and litigation." She suggested that the Legislature, which created this provision, clarify the ramifications when an employee's termination is their own fault. Fournier v. Aetna, Inc. Slip and fall injury occurring on outside, common staircase arose out of and in the course of employment. The Court upheld benefits for an employee who injured herself on a staircase outside a building returning from lunch in which the employer was a tenant. The Court found that this case did not fit within the public streets rule that bars compensation for injuries during a commute. On her petition for award, the hearing officer awarded her the protection of the Act, finding that the injury arose out of and in the course of employment because it occurred in a common area of the building. On Aetna's appeal, the Court affirmed the hearing officer's finding that the injury arose out of and in the course of employment. The Court first rejected Aetna's main argument that the case fell under the "coming and going" rule, which prohibits compensation for employees injured on public ways while coming and going to work. The rationale for the rule is that during the commute the employee is not at work either temporally (on the clock) or spatially (on the premises). Moreover, as a member of the traveling public, the employee is exposed to the same hazards as the general public. In Waycott v. Beneficial Corp. (400 A.2d 392, Me.1979), the Law Court applied the rule to deny benefits to an employee injured while taking lunch outside the workplace. At the same time, the Court indicated that a lunchtime injury occurring on the employer's premises might be compensable. As the Court had found in Waycott, "[S]ome line must be drawn if an employer is not to be deemed an insurer from portal to portal, and the bright line of the employer's premises is as definite and reasonable as any that can be devised." At issue here, then, was whether the staircase leading to the building was part of the employer's premises. Aetna argued that it was not for four reasons: (1) The hearing officer's definition of the employer's premises was overly broad; (2) Employers should not be held liable for injuries that occur in an area that the landlord is obligated to maintain; (3) The risk to the employee on the stairway was not different from the risk to the general public; and (4) This stairway was not the only way of entering the building. The Court upheld the decision as consistent with precedent and the majority rule, and thus reasonable. Under the majority rule, a common staircase is part of the employer's premises, even if the employer has no control over the staircase. Thus, when an employer is housed in a building and has the equivalent of an easement to common connectors and passageways such as staircases, hallways, and driveways, those common areas are considered part of the employer's premises for workers' compensation purposes. 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, §13.04(3). While a minority of jurisdictions require that the employer also have control over the common area, Maine has followed the majority rule since the 1924 decision of Roberts' Case (126 A. 573, Me.1924). The employer there had a right of way through a railroad yard where an employee leaving work was struck and killed by a train. The Court held his death compensable. Key facts in Roberts, according to the Court, were that the employer had a right of way through the yard and that this was the only way in and out of the plant for employees. The hearing officer here followed Roberts in finding that the common staircase was part of the employer's premises. The officer added, and the Court agreed, that if the employee had been injured on the street or sidewalk rather than the staircase, the injuries would have been considered off the premises and not compensable. Finding the claim not barred by the coming and going rule, the Court then affirmed that the injury arose out of and in the course of employment. The Court recently stated that an injury arises out of employment when, among other possibilities, "in some proximate way, [it] had its origin, its source, or its cause in the employment," Standring v. Town of Skowhegan (870 A.2d 128, Me.2005). The Standring Court reiterated the well-known list of factors outlined in Comeau v. Maine Coastal Services (449 A.2d 362, Me.1982). Justice Dana indicated that the employee's activity of entering the building, when injured, fit four of the Standring/Comeau factors: (1) It was an "insubstantial deviation" from employment; (2) It violated no employer rules; (3) It was acquiesced in or permitted by the employer; and (4) It was not unreasonably reckless and created no risks. Aetna, meanwhile, pointed out countervailing factors supported by Comeau: The employee was doing no work-related tasks because; she was not under the control of her employer; and the risk the icy steps created was not related to her employment. As Justice Dana noted, though, the Court's review of the Comeau test is "highly deferential" to the decisions of hearing officers, and those decisions will be upheld unless arbitrary or irrational. Penn v. FMC Corporation Temporary help agency's immunity from suit is not affected by length of temporary assignment or fact the employee is not explicitly told he is a temporary employee. The employee worked for Manpower, a temporary employment agency which provided its temps with wages and workers' compensation coverage. For seven months in 1998, the employee was assigned to the FMC Corporation, where other Manpower employees also worked. FMC hired these workers because of an increase in orders while it was considering an outsourcing plan. The employee worked under the direction and control of an FMC employee, with possibly some help from another Manpower worker. After suffering a work-related injury at FMC, the employee received workers' compensation benefits from Manpower. The employee then filed a negligence action against FMC. The Superior Court granted summary judgment to FMC pursuant to section 104 of the Act, which provides immunity from suit to employers when they contract with temporary help agencies that provide their employees workers' compensation coverage. The Law Court affirmed, rejecting the employee's contention that the Legislature intended that after a certain time period, the definition of "temporary" help expires. Justice Levy noted that while the Court has found ambiguity in the phrase "to work under the direction and control of the third party," Marcoux v. Parker Hannafin/Nichols Portland Div. (881 A.2d 1138, Me.2005), the "constellation of elements" comprising temporary help is not ambiguous. Moreover, the legislative history of 104 does not support the employee's contention that there are additional, implicit criteria for temporary help beyond those stated above. The Court concluded that following the plain meaning of section 104 furthers the purpose of the Act because the employee received workers' compensation while both employers were immune from suit. Bisco v. S.D. Warren Company Hearing officer's decision vacated where he erroneously applied burden of persuasion rather than production to employee seeking to stack permanent impairment benefits to avoid durational cap. The Court vacated the Board's decision regarding the stacking of permanent impairment benefits, holding that the Board improperly applied a burden of persuasion rather than of production to the employee. The employee suffered three work-related injuries to various body parts in 1990, 1995, and 1999. In 2002, a hearing officer awarded him ongoing partial benefits, finding the 1999 injury 50% liable and the other two injuries combined 50% liable. Subsequently, the employer petitioned to establish maximum medical improvement for the 1990 injury and to determine the extent of permanent impairment for the 1995 and 1999 injuries. The hearing officer ruled that the employee had reached MMI for the 1990 injury and had suffered a 21% impairment from the 1995 injury and a 5% impairment from the 1999 injury. The ruling resulted in capping the partial incapacity at benefits at 364 weeks for the 1994 injury. The employee argued and provided evidence that the impairments should be "stacked" together because the 1999 injury had aggravated his prior work injuries. If so, the durational limitation would not apply. The employee offered personal examples while a medical doctor testified that there could be a connection between two such ailments. The Court granted the employee's appeal and vacated the ruling on the basis that the hearing officer misapplied the burdens in the case. The Court interpreted the burden-shifting scheme when determining the duration of permanent impairment benefits, as stated in Farris v. Georgia-Pacific Corp. (844 A.2d 1143, 2004). Normally, the petitioning party has the burden of proof in all cases. The Farris Court held, however, that when the 364-week cap on benefits is at issue, the moving party's identity would depend on whether the employer is paying benefits pursuant to a formal compensation scheme or voluntarily. The employer in Farris sought to terminate benefits for exceeding the durational limit. The parties produced no evidence of the level of impairment. The hearing officer found that the employee had the burden to prove a level of impairment sufficient to render the time limit inapplicable and had not met it. The Court vacated, finding that while the employee's burden was to raise the issue of the percentage of whole body impairment, the employer had the ultimate burden of proof regarding whether that percentage made the cap inapplicable. Following Farris, the employee here had to assert and provide some evidence that stacking his impairments would produce an impairment level exceeding the 11.8% threshold for negating the cap. Such evidence would be that one injury had aggravated or accelerated an earlier one. The burden then shifts to the employer to prove that stacking is not warranted. The hearing officer erred in requiring the employee to prove, not just raise the issue, whether one injury affected a subsequent one. This is too high an evidentiary standard, as the employee has the burden of production, not persuasion. The employee met this burden by testifying how the earlier injury affected his later one. Thus, on remand, the burden is now on the employer to prove that the 1999 injury did not aggravate or accelerate the 1995 injury. Juliano v. Ameri-Cana Transport In apportionment case, Maine Insurance Guaranty Association is not required to pay inflation benefits on insolvent insurer's portion of award. The Court examines the intersection between the apportionment section of the Act and the Maine Insurance Guaranty Act, 24-A MRSA §4431 et seq. The employee sustained work-related injuries in 1981, 1986, and 1988. He was receiving partial benefits pursuant to a decree. He later petitioned to restore benefits for the 1981 injury and for medical payments for the 1981 and 1988 dates of injury. The hearing officer found him entitled to total incapacity benefits from January 1, 2000 ongoing, with each injury one-third responsible for the incapacity. He also ordered payment of inflation benefits for the 1981 and 1986 injuries, as the law in effect at the time of each injury applies in apportionment cases. Wausau Insurance Company was responsible for the 1986 and 1988 injuries, while because the insurer at the time of the 1981 injury was insolvent, the Maine Insurance Guaranty Association was responsible for that injury. The hearing officer ordered Wausau, as the most recent insurer, to pay all the benefits and MIGA to then reimburse Wausau for one-third of those benefits. In response to MIGA's request for additional findings of fact and conclusions of law, the hearing officer issued an amended decree finding MIGA not responsible for paying the incapacity benefits. The decree noted that Wausau's claim against MIGA was a subrogation claim, which is not a "covered claim" under the Guaranty Act. The hearing officer also, however, found MIGA responsible for paying the inflation adjustment for the 1981 injury, reasoning that this was a direct payment to the employee and thus not a subrogated obligation covered by the Guaranty Act. The Law Court granted MIGA's appeal, ruling that MIGA is not liable for the inflation adjustment. As Justice Levy stated, while MIGA is required to pay all claims covered by the Guaranty Act, covered claims are limited to subrogation recoveries. The Guaranty Act also prevents "duplication of recovery" by requiring anyone with a claim against a solvent insurer to exhaust their rights under that policy first. Thus, MIGA is intended to be "a guarantor of last resort," Ventulett v. Me. Ins. Guar. Ass'n (583 A.2d 1022, 1990). As Ventulett stated, the Legislature intended insurers to bear the losses they can underwrite. The Court addressed the intersection of the Guaranty Act's subrogation policy with the apportionment section of the comp Act, which requires the most recent insurer in a multi-injury, multi-insurer case to initially pay and then obtain reimbursement from the other insurers. In Maine Insurance Guaranty Association v. Folsom (769 A.2d 185, 2001), the second of the employee's three injuries was covered by an insolvent insurer. As representative of the insolvent insurer, MIGA obtained a declaratory judgment that it was not liable to pay the most recent insurer as this constituted a subrogation recovery, which is not covered under the Guaranty Act. The hearing officer in the present case had relied on Folsom for absolving MIGA of liability for paying benefits, but had reasoned that it did not apply to the inflation adjustment because this was a direct benefit to the employee for which MIGA was the insurer of "last resort." In addition, the hearing officer relied on Dunson v. South Portland Housing Authority (814 A.2d 972, 2003), which stated that in apportionment cases, inflation adjustments "must be paid to the employee." Justice Levy stated that this statement was not intended to reduce the liability of the most recent insurer on the claim but to protect the employee from suffering a reduction in benefits if an earlier insurer's obligation was less than the percentage apportioned to that insurer. He stated that it remains for the most recent insurer to cover up the deficit of any prior insurer, even if that means entirely covering a prior insurer's percentage. The Court agreed there was merit in Wausau's argument that it should not be responsible for paying a higher level of benefits required by the law in effect at the time of its injury. However, it reiterated that the apportionment statute directs the last insurer to pay all compensation due the employee with the employee's rights against other insurers subrogated. As the inflation adjustment was part of the entire compensation due, the Court held that Wausau, as the last insurer, was responsible for paying that amount. Therefore, it vacated the hearing officer's ruling that found MIGA responsible for the inflation adjustment benefit and held Wausau responsible for reimbursing MIGA for all such benefits it had paid. |
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Portland, ME 04101
Phone: (207) 772 - 6565
Facsimile: (207) 773 - 5001
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