Fournier v. Aetna, Inc.

Fournier was injured after a slip and fall on an external staircase when returning from an unpaid lunch break. Aetna leased space on the second through fifth floors of the building, but did not own or maintain the building or the staircase. Aetna argued that this case was subject to the “going and coming” rule which provides that injuries occurring off the employer’s premises while an employee is coming to or from work is not, without more, compensable. The hearing officer found that the injury arose out of and in the course of employment because the injury occurred on Aetna’s premises, specifically finding that the outside staircase was part of the common area of the office building. Aetna appealed. 

Court ruling: 
The Law Court, citing Professor Larson, agreed that any common area or conveyance over which the employee has a right of passage is part of the employer’s premises even if the employer does not own, lease or maintain the area or conveyance. The Court then upheld the hearing officer’s opinion that the injury arose out of and in the course of employment, finding no error in the hearing officer’s analysis under the Comeau test.

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Williams v. Tyson’s Food, Inc., et al.

Williams was fired from her post-injury employment with Tyson’s because of excessive late arrivals. Tyson’s argued that the employee was terminated due to her own fault and that pursuant to 39-A M.R.S.A. §214(1)(E), she was not entitled to wage loss benefits. Section 214 is derived from Michigan’s Section 418.301 which provides “If the employee . . . loses his or her job for whatever reason, the employee shall receive compensation based upon his or her wage at the original date of injury.” Mich. Comp. Laws §418.301(5)(e) (1999). [Emphasis added.] However, the Maine Legislature altered the language to provide “if the employee . . . loses the job through no fault of the employee, the employee is entitled to receive compensation based upon the employee’s wage at the original date of injury.” 39-A M.R.S.A. §214(1)(E) (2005). [Emphasis added.] The hearing officer, equating “fault” in the Workers’ Compensation Act with “misconduct” in the Employment Security Law, found that the employee did not lose her employment due to her own fault. As a result, the hearing officer did not reach the issue of whether Section 214(1)(E) prohibits wage loss benefits for employees who are fired due to fault. Tyson’s appealed. 

Court ruling: 
The Law Court upheld the decision of the hearing officer that the employee had not been fired due to her own fault. Apparently finding no significance in the Legislature’s change in language when adopting Section 214, the Law Court went on to say that there was nothing in the plain meaning or legislative history in that section that indicates an intent to prohibit workers’ compensation benefits when an employee is fired from post-injury employment for cause.

Although this decision severely limits this affirmative defense, it may not have eliminated it altogether. Left open is the question of whether an employee whose actions rise to the level of “misconduct” would be prohibited from receiving wage loss benefits pursuant to Section 214(1)(E). This decision is also likely to have an effect on another affirmative defense, namely refusal of suitable work. Rather than refusing suitable job offers, savvy employees will accept the offer then seek to be terminated. As long as their conduct does not rise to the level of “misconduct,” they will still be entitled to workers’ compensation benefits.

View complete text of Williams v. Tyson’s Food, Inc., et al.

Hoglund v. Aaskov Plumbing & Heating

Hoglund was injured while in the employ of Aaskov. The parties reached an agreement at mediation under which Aaskov agreed to pay medical bills and ongoing total incapacity benefits. Over a year later Aaskov filed a Petition for Review of Incapacity seeking a reduction in benefits. The Board determined that the mediation agreement was binding and that it established the compensability of the employee’s injury. As a result, Aaskov was required to demonstrate a change in Hoglund’s economic or medical circumstances since the mediation in order to merit a reduction in benefits. The Board determined that Aaskov failed to meet this burden, and denied the Petition for Review. Aaskov appealed contending that the mediation agreement was not the equivalent of a litigated factual finding on the extent of incapacity.

Court ruling: 
The Law Court, citing Bureau v. Staffing Network, Inc., 678 A.2d 538, 590 (Me. 1996), found that the legislative intent behind the Workers’ Compensation Act was to encourage mediation and avoid litigation whenever possible. The Law Court then held that, in order to carry out this legislative purpose, mediation agreements signed by the parties must be binding on factual issues. In this case Aaskov’s agreement at mediation to pay ongoing partial incapacity resulted in a factual finding that the employee was incapacitated, which in turn required Aaskov to prove a change in circumstances since the mediation in order to be entitled to reduce Hoglund’s benefits.

This case affirms the binding effect of mediation agreements and will likely lead to fewer compromises. Diligent employers and insurers will recognize that an agreement reached at mediation may establish the compensability of an injury, relieving the employee of his burden of proof and shifting it to the employer/insurer who must then show changed circumstances since mediation. As a practice tip, this danger can be avoided by careful drafting of the mediation agreement. Reserve all rights and defenses, and include language that makes it clear that any agreement reached did not have a binding effect on any factual issues as outlined in Hoglund.

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Whitney v. Wal-Mart Stores, Inc.

In this case, the Law Court was asked whether the definition of “physical or mental disability” under the Maine Human Rights Act requires a showing of a substantial limitation on a major life activity as does its federal counterpart, the Americans With Disability Act; and whether Section 3.02 (C) of the regulations adopted by the Maine Human Rights Commission is invalid because it requires such a showing.

The MHRA was enacted in 1971 and included no definition of disability. In 1973, the United States Congress adopted a definition of disability that required a showing of a physical and mental impairment which substantially limits one or more of a person’s major life activities. Two years later, the Maine Legislature added a definition of disability to the MHRA, but left out this “substantially limits” language. However, in 1985, the Maine Human Rights Commission adopted Rule 3.02 which defined disability and included the “substantially limits” requirement. The Legislature revised the MHRA in 1991 and made several non-substantive changes to the language to the definition of disability, but failed to incorporate the language of Rule 3.02. 

Court ruling: 
A narrow 4 to 3 majority noted that the Legislature had the opportunity in 1991 to include the more restrictive language of Rule 3.02 in the definition of disability, but failed to do so. Finding no ambiguity in the statutory language, the Court ruled that the MHRA definition of disability does not require a showing of a substantial limitation on one or more major life events and held Rule 3.02 invalid.

The dissent argued that the MHRA’s definition of disability was ambiguous in light of the fact that it consisted of a single run-on paragraph containing 77 words, thirteen commas, and eight “or’s”. They would have deferred to the Maine Human Rights Commission’s interpretation of the MHRA as requiring proof of a substantial limitation. In the dissent’s view, the 1991 Legislature left this language out of the revised definitionbecause it was already included in a rule adopted by the Maine Human Rights Commission.

As a result of this decision, the MHRA has a much broader definition of what constitutes disability than its federal counterpart. The less restrictive definition makes the MHRA applicable to even minor disabilities and will likely lead to a flood of litigation in Maine courts. 

View complete text of Whitney v. Wal-Mart Stores, Inc.

Interest at Mediation

April 2006

In light of the Law Court’s ruling in Hoglund v. Aaskov Plumbing & Heating, employers and insurers should take note of another consequence of reaching an agreement at mediation. Section 205(6) of the Act provides that “when weekly compensation is paid pursuant to an award, interest on the compensation must be paid at the rate of 10% per annum from the date each payment was due, until paid.” The policy of the Workers’ Compensation Board has been to apply this Section to mediation agreements as well. Therefore, if an agreement is reached at mediation, the employer and insurer will be responsible for the interest on those payments as well.

Celentanto v. Dept. of Corrections

In a case involving issues similar to those in the Bryant v. Masters Machine case, the Law Court revisited under what circumstances work injuries combine with pre-existing physical conditions resulting in disability that is compensable under the Workers’ Compensation Act. The employee suffered from pre-existing herniated discs and severe spinal disease, which the Hearing Officer found had resolved until a non-work-related injury in 2001. The Hearing Officer found that the 2001 injury arose out of the employment and contributed to the employee’s disability in a significant manner. The employer/insurer appealed the decision.

Court ruling: 
Although the Hearing Officer did not refer to Bryant in her decision, the Maine Supreme Court found that she applied the standard for legal causation set out in that opinion. After hearing a description of the table legs and learning that another employee also caught his foot on the table leg, the Hearing Officer determined that the table leg contributed a substantial element to increase the risk of the employee sustaining a disability.

The Court then found that the remaining elements of Section 201(4) were met because the Hearing Officer, relying on one of the doctor’s opinions, determined that the combination of the work injury and the pre-existing condition rendered the employee disabled and the disability was contributed to by the employment in a significant manner.

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Leighton v. S.D. Warren Company, et al.

In this case, the Maine Supreme Court was asked to decide which party has the burden of proof regarding whether the employer had contemporaneous notice that payments made for a later injury related in part to a prior injury, thereby tolling the statute of limitations for the prior injury. This case was governed by former 39 M.R.S.A. §95, which requires a petition to be filed within two years after the date of injury or, if the employee is paid benefits pursuant to the Act, within ten years of the last payment. (The current version of this Section provides two and six year periods respectively.)

The employee suffered a work-related injury to his right hand on May 29, 1983. The last payment on this date of injury was made on November 18, 1991. The employee returned to work on April 6, 1987 and suffered another injury to his right hand on January 26, 2000. In 2002 the employee sought to restore benefits related to the 1983 injury, arguing that the employer had contemporaneous notice that payments made on the 2000 injury related to the 1983 date of injury as well, thereby tolling the statute of limitations. 

Court ruling: 
The Maine Supreme Court ruled that the employer/insurer bears the initial burden of proof on a statute of limitations defense (that the last payment was made more than ten years before the petition was filed). The burden is then on the employee to demonstrate that the employer had contemporaneous notice that payments made within the limitations period but after a subsequent injury related in part to the prior injury.

View complete text of Leighton v. S.D. Warren Company, et al.

Marcoux v. Parker-Hannifin/Nichols Portland Division

Under 39-A M.R.S.A. §104, employers are generally immune from civil actions involving personal injuries arising out of and in the course of employment. This immunity extends to employees who are assigned to an employer by a temporary help service to work under the direction and control of the employer. Plaintiff, an on-site coordinator for the temporary help service, brought a civil action against the employer, alleging that she fell and was injured as a result of the employer’s negligence. The employer moved for summary judgment under the immunity provision of the Act. 

Court ruling: 
The Law Court held that in order for an employer to be immune from civil actions, the employees assigned by the temporary help service must work under the direction and control of the employer. In this case it was not clear whether the Plaintiff, who was supplied by the service to supervise other temporary employees, was under the direction and control of the employer. The Law Court therefore denied the employer’s Motion for Summary Judgment and remanded the case for the trier of fact to determine whether or not Plaintiff was working under the direction and control of the employer.

View complete text of Marcoux v. Parker-Hannifin/Nichols Portland Division

Bridgeman v. S.D. Warren Company, et al.

In this case (and its companion case, Mitchell v. UPS), the Law Court was asked to rule on the validity of Board Rule Chapter 1(1), commonly referred to as the 14-day rule. Under that rule, an employer who fails to pay or controvert a claim for incapacity benefits within 14 days of receipt of the claim violates the rule. The employer then must pay incapacity benefits from the date of incapacity through the date the violation is cured (by paying accrued benefits and filing a Notice of Controversy).

The employer argued that the rule conflicts with Section 205 of the Workers’ Compensation Act which provides a $50.00 per day penalty for claims not disputed or paid within 44 days. The employer also argued that when, as here, the employee presents his initial claim by way of petition, no response is required under Section 307(3) of the Act. Finally, the employer argued that the rule is contrary to the intent of the Act by forcing employers to immediately dispute claims rather than risking a rule violation, creating more litigation and delaying payment of valid claims.

Court ruling: 
The Law Court concluded that the Workers’ Compensation Board enjoys broad rule-making authority and that the 14-day rule does not directly conflict with the language of the Act. The Court found that the rule encourages employers to quickly pay or controvert a claim, resulting in faster disposition. However, the Court did not respond to the employer’s argument that no response to a petition is required under Section 307(3).

The Court also ruled that when a 14-day violation has been established, the employee is due benefits not from the date of his petition, but from the date of incapacity. Enforcement of the 14-day violation under these circumstances may have a huge financial impact on insurers and employers.

As a result of this decision, a safer route for insurers when the facts and initial investigation may not support compensability is to file Notices of Controversy to avoid a 14-day rule violation, then complete their investigation of the claim and decide whether or not to pay benefits.

View complete text of Bridgeman v. S.D. Warren Company, et al.

Lydon v. Sprinkler Services, et al.

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.

View complete text of Lydon v. Sprinkler Services, et al.