Lydon v. Sprinkler Services, et al.

Background:
In a far-reaching decision, the Law Court has redefined the 39-A 
M.R.S.A. §312(2) designation of a §312 independent medical examiner.

In the hearing giving rise to the appeal, the employee asserted that 
the §312 examiner should be dismissed because he had provided §207 
examinations within the preceding fifty-two weeks. At deposition the 
§312 examiner admitted to performing numerous §207 examinations within 
the past year, yet the Hearing Officer relied upon the §312 examiner’s 
opinion and denied the employee’s petitions.

The Law Court focused their analysis of the appeal on a strict reading 
of 39-A M.R.S.A. §312(2).  Specifically, whether or not the legislature 
intended to disqualify §312 examiners who have treated the specific 
employee who is the subject of the litigation or whether or not a §312 
examiner should be disqualified for examining any employee within the 
fifty-two weeks prior to the examination date.  Section 312 provides 
three provisions for disqualification of an examiner for §312 purposes. 
Specifically, the examiner may not be the employee’s treating health 
care provider, the examiner may not have treated the employee for the 
specific injury alleged and the physician “cannot be a physician who 
has examined AN employee (emphasis added)….in accordance with §207 
during the previous fifty-two weeks.” See 39-A M.R.S.A. §312.

The Law Court found that the use of “an” shows legislative intent not 
to refer solely to the employee at issue but to any employee.  The Court 
then looked at the Board rule regarding §312 examiners.  The Board rule 
uses the term “the” instead of “an” used in the statute.  Relying upon 
that distinction, the Law Court found that the Board rule contradicted 
the statute and therefore exceeded Board authority.

Court ruling:
The Law Court decision effectively disqualified any §312 examiner who 
has performed a §207 evaluation on any employee within the fifty-two 
weeks prior to the date of examination. There was a strong dissent 
presented by Justice Clifford and joined by Justice Levy.  These 
dissenters disagreed with the majority’s reading of §312(2), 
specifically that the legislature intended to cover “any” employee.  The 
dissent indicated that §312(2) is not free of ambiguity and is 
susceptible of more than one interpretation. Therefore, the dissenters 
deferred to the Board’s construction of the Workers’ Compensation Act. 
The dissenters would essentially leave it up to the Hearing Officer to 
determine whether or not, on a case by case basis, a specific §312 
examiner was biased.

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Little v. Knowlton Machine Company, et al.

Background:
In a case involving issues similar to those in the D’Amato v. S.D. Warren Co. case, the Law Court was presented with questions regarding the authority of a specific Hearing Officer. The Hearing Officer at issue was John McCurry. The hearing at issue in the appeal took place after the expiration of Hearing Officer McCurry’s term of office. In the D’Amato case Hearing Officer Johnson was afforded de facto authority from the Workers’ Compensation Board to decide cases presented by hearing prior to the expiration of her term. In the subject case, Hearing Officer McCurry’s expired on December 31, 2002 and the hearing was held subsequent to that date. The employer/insurer objected to Hearing Officer McCurry hearing the case although the objection was not within the time limits established by the Board for objections.

Court ruling:
The Law Court found that even though the objection was late, because there was uncertainty by the Board as to Hearing Officer McCurry’s status, he did not retain de facto authority to decide the subject matter. Hearing Officer McCurry’s decision was reversed and remanded.

View complete text of Little v. Knowlton Machine Company, et al.