Ramsey v. Shaw’s Supermarkets, Inc., and Sedgwick Claims Management Services

Decided: April 21, 2021
Topic: Notice, Mistake of Fact

The issue in this case was whether it was appropriate, in the absence of any testimony or other evidence on the issue, for the ALJ to infer that the employee was operating under a mistake of fact as to the cause of his bilateral knee condition until a medical causation opinion was obtained.

The employee had been working long-term for Shaw’s Supermarkets as a grocery manager. His job often involved stocking shelves, which required frequent bending and kneeling. Over a period of several years, he experienced pain in both knees that worsened progressively.

On August 22, 2017, the employee saw his primary care physician. It was around this time that the employee began to question whether his work was the cause of the knee condition. The primary care physician did not issue a causation opinion until December 1, 2017. In the meantime, the employee was seen on November 3, 2017 by Shaw’s chosen medical provider where his bilateral knee condition was deemed to be work related. Shaw’s was notified that same day.

Shaw’s alleged that the employee’s claim should be denied because he failed to provide notice within the thirty-day period required by statute. Once an employer raises the issue of notice, the employee bears the burden of persuasion to show that notice was timely.  Despite no testimony from the employee that he was under a mistake of fact regarding the cause and nature of his bilateral knee pain, the ALJ (Goodnough) found that the employee was under a mistake of fact until he was given a medical opinion regarding the compensable nature of his knee condition on November 3, 2017. As a result, the ALJ concluded that notice was timely.

Shaw’s appealed arguing that the ALJ erred by tolling the notice period for mistake of fact when the employee provided no evidence that he was operating under a mistake of fact as to the cause of his condition. The employee argued that the absence of a medical causation opinion until November 3, 2017 was sufficient to support the ALJ’s factual finding that the employee was under a mistake of fact or that knowledge of the work-relatedness of the injury should not have been imputed to him because of the differing medical causation opinions.

The Appellate Division vacated the decision and ordered the employee’s petitions denied on remand based on late notice. They found that the record did not contain competent evidence to support the ALJ’s finding of mistake of fact. They further noted that the absence of a medical opinion on causation, by itself, does not permit an inference that the employee was mistaken as to the cause and nature of his knee condition.

To see the full text of the decision: https://www.maine.gov/wcb/Departments/appellate/2021decisions/21-16_Ramsey_v._Shaw’s_Supermarkets_4-21-21.pdf

Gallup v. Keystone Automotive Industries, Inc. and Sedgwick Claims Management Services, Inc.

Decided: March 30, 2021
Topic: Res Judicata

This decision involved a determination of whether the res judicata effect of a prior Consent Decree compelled a finding that the employee’s ongoing problems years later were still caused by the original work injury.

The employee was working as a driver for Keystone Automotive Industries in 2008 when he sustained a right shoulder injury at work. He had right shoulder problems prior to the injury for which he had received treatment.

A Consent Decree was entered at that time in which the parties agreed that the 2008 work injury represented a significant aggravation of the pre-existing shoulder condition. The parties further agreed in the Consent Decree that the 2008 injury was at least, in part, the reason the employee had surgery on the shoulder and lost time from work between May and October of that year.  The employee then underwent a second surgery on the right shoulder in 2010, and finally a reverse shoulder arthroplasty in 2017.

The issue before the Appellate Division was whether the 2017 surgery and ongoing capacity were the result of the 2008 work injury.  The ALJ found that they were not, based on the opinion of the 312 examiner, Dr. Matthew Donovan, who attributed the more recent problems to natural progression of the preexisting shoulder condition instead of the work injury.  The employee appealed, arguing that the ALJ was bound by the res judicata effect of the prior Consent Decree to find that the current problems were still related to the 2008 work injury.  Specifically, the employee argued that the 2009 independent medical exam formed the basis for the Stipulated Decree and therefore, its conclusions regarding the nature of the preexisting medical condition must be accorded full and final preclusive effect.

The Appellate Division ultimately affirmed the ALJ’s decision, finding that the Consent Decree did not address nor did it decide the issue of the precise medical nature of the employee’s underlying shoulder condition.  The Appellate Division determined that the lone reference to the underlying condition (that a compensable right shoulder injury occurred and represented a significant aggravation of the pre-existing condition) was entitled to res judicata effect, but that there was no preclusive language in the Consent Decree to indicate that the current right shoulder condition was caused by the employment rather than the natural progression of the underlying condition as opined by the 312 examiner.

To see the full text of the decision: https://www.maine.gov/wcb/Departments/appellate/2021decisions/21-13_Gallup_v._Keystone_Automotive_Industries_Inc._3-26-21.pdf


Bosse v. Sargent Corporation & Cross Insurance TPA, Inc.

Decided: March 24, 2021
Topic: Preexisting Condition, Significant Contribution, Average Weekly Wage  

This decision involved several issues, including preexisting conditions and average weekly wage. The employee filed a Petition for Award alleging a gradual work injury arising out of her work for Sargent after experiencing hip and lower back pain. The employee had worked as a truck driver for many years.

Initially, she was self-employed. She then worked for another employer for a couple of years before being hired by Sargent. Notably, the employee had experienced low back problems before her employment at Sargent.

It is also important to note that the employee was subject to seasonal layoffs at Sargent. There was some indication in the record that the same was true during her employment with her prior employer. She worked year-round when she was self-employed, however.

Dr. Bradford’s initial 312 reports concluded that while her hip arthritis was caused by her work as a truck driver, the work did not cause a significant low back problem. However, at deposition, Dr. Bradford testified that her truck driving activities probably contributed to the development of degenerative disc disease in her back.

The ALJ (Goodnough) adopted Dr. Bradford’s deposition testimony and found the employee sustained a compensable gradual injury to both hips and her low back. The ALJ awarded a closed-end period of total incapacity for the hip surgery, recovery, and ongoing partial for the low back.

Because the employee was laid off during the winter months, Sargent argued that the average weekly wage should be calculated using the fallback method in section 102(4)(D) rather than under section 102(4)(B) as that method would unreasonably inflate the employee’s average weekly wage.

The ALJ disagreed, finding that the wage using (B) was not so high as to be per se unreasonable. The reasons she worked less than year-round were linked to the employer’s considerations, and she had worked on a year-round basis before working for the employer.

The Appellate Division affirmed the ALJ’s finding that the work injury included an injury to her lower back but vacated the ALJ’s determination that back injury was compensable without applying the section 201(4) analysis. It remanded for a determination whether the employment at Sargent contributed to the disability in a significant manner.

Finally, the Appellate Division found no competent evidence to support the finding that employment immediately before Sargent was year-round, which is deemed critical in the decision to employ (B) instead of (D). Ultimately, it remanded for determining whether (B) was the appropriate method for calculating the wage.

To discuss how this decision and others like it may affect you as an employer or insurer, please give one of the attorneys at Tucker Law Group a call.

To see the full text of the decision, click here.

James v. Tractor Supply Company & Gallagher Bassett Services, Inc.

Decided: March 18, 2021

Topic: 201(4) Preexisting Condition

This appellate decision involves an appeal of the ALJ’s (Elwin) decision finding that there was no medical opinion to support that the alleged work injury was a compensable aggravation of the employee’s preexisting condition.

Five days before the alleged date of injury, the employee was undergoing physical therapy when she reported left upper back and neck pain with tingling into her left arm and hand. A few days later, at work, she was moving 50 lb. bags of product when she experienced neck pain.

On appeal, the employee argued that the change in the treatment plan and the imposition of work restrictions following the alleged work injury were sufficient to establish a compensable aggravation of a preexisting condition. The ALJ disagreed, finding such to be insufficiently persuasive to establish compensability. The Appellate Division upheld the decision.

To discuss how this decision and others like it may affect you as an employer or insurer, please give one of the attorneys at Tucker Law Group a call.

For the full text of the opinion, click here.

Thomas v. United Ambulance Service v. Maine Employers Mutual Insurance Company

Decided: March 16, 2021

Topic: Gradual Injury, Arising Out of, and Within the Scope of Employment

This decision involved a gradual injury that first manifested symptoms while the employee was at home and not working. The employee had worked as a dispatcher for United Ambulance Service for roughly 12 years, taking nearly 250 calls per day and working four 10-hour days, plus frequent overtime.

On the date of the injury, the employee was at home during his day off. He was reaching over his bathtub with his arm extended when he felt a “pop” and experienced immediate pain in his neck and left shoulder. He pursued a workers’ compensation claim alleging that his employment caused his eventual diagnosis of cervical disc herniation.

A Section 312 independent medical examination by Dr. Bradford concluded that the employee sustained a compensable cervical injury, opining that the injury “occurred gradually due to repetitive computer activities and static posturing while functioning as a dispatcher over many years.” Dr. Bradford further reasoned that the bathtub incident was the culmination of a delayed-onset work injury rather than a specific nonwork-related event.

The ALJ (Goodnough) granted the petitions and awarded protection of the Act, and ordered payment of medical bills. On appeal, the Appellate Division upheld the decision, ultimately holding that the final test in such a claim is not whether the symptoms occurred at work, but instead, whether the injurious activities that caused the injury were undertaken in the course of employment.

To discuss how this decision and others like it may affect you as an employer or insurer, please give one of the attorneys at Tucker Law Group a call.

For the full text of the opinion, click here!

FDCC Membership for Tucker

Richard D. Tucker, managing partner at Tucker Law Group, was unanimously approved as a member of the Federation of Defense and Corporate Counsel (FDCC). An international organization founded over 80 years ago, FDCC includes members who have achieved professional distinction as leaders in the legal community. Membership in FDCC is limited, selective, and by nomination only.
For more information about FDCC, go to https://thefederation.site-ym.com/page/AboutUs.

Tucker is also currently serving on the Board of Directors of DRI – The Voice of the Defense Bar – as the Northeast Regional Director, formally having held the office of Maine’s State Representative. A frequent speaker on legal topics, Tucker is also a member of the Maine State Bar Association, Penobscot County Bar Association and Tri-State Defense Lawyers Association. He also continues to counsel clients on Workers’ Compensation and Insurance Defense issues.

Established in 1993, Tucker Law Group currently has four attorneys, with over 60 years in combined experience. Congratulations Dick on this accomplishment!

WCB Rule Changes

The Workers’ Compensation Board recently adopted a number of rule changes that went into effect on September 1, 2018. The full text of the rules with strikeouts of deleted language and underlines for the new language can be found here.

For a summary on these rule changes see below.