Cantara v. Dube Design & Construction, Inc.

Decided: October 20, 2016

Topic: Payment of benefits pending appeal

Promptly pay what is ordered whether or not you agree with the decision – this is the message the Maine Workers’ Compensation Appellate Division recently affirmed in a pair of decisions in “Cantara v. Dube Design & Construction, Inc”. Administrative law judge Mike Stovall had ordered payment of incapacity benefits during the initial proceeding on account of Mr. Cantara being deemed an employee and not an independent contractor. Those benefits were not paid within the mandatory 10 day period and Mr. Cantara pursued penalties under 39-A M.R.S.A §324(2). $5,000.00 was awarded

to Mr. Cantara in a subsequent action in addition to the incapacity benefits previously decreed. Meanwhile, the employer, Dube Design & Construction, Inc., appealed both decisions regarding Mr. Cantara’s employment status and the imposition of the penalty.

 

The panel outlined the clear language of the Act regarding payment of benefits. The employer or insurance carrier must make payments within 10 days after receipt of notice of a decision, regardless of whether an appeal is filed. Perhaps the decision to withhold payment was deliberate
here in hopes the appellate division would overturn the prior decree, but the gamble did not pay off. In fact, the panel’s decision on the payment portion provided further warning against such action by referencing additional penalties. The panel noted “failing to make both ordered benefit and penalty payments may be considered a willful violation of the Workers’ Compensation Act and could subject an employer to further penalties under 39-A M.R.S.A § 360(2).” This section of the Act carries the potential of up to an additional $10,000 in fines. It seems the message here is regardless
of whether the initial decision had been overturned, the imposition of penalties would remain the same.

 

While not outlined in these decisions, an employer or insurer may recover from an employee payments made while an appeal is pending if it is later determined that the employee was not entitled to the compensation paid.