Recent Court Decision

Prompt Reporting of Injuries Undermined

On November 17, 2006, the Law Court denied a request for an appellate review of Shaver v. Poland Spring . Going forward, employers will have a difficult time requiring prompt reporting of injuries. (See September 2006 WCCC Alert .)

Date Injured Worker Claims Injury is Work-Related

In the case of Pratt & Whitney v. WCB , the employer knew that an employee was injured two months before the employee claimed it to be work-related. Once notified that the employee considered the injury to be work related, the employer immediately filed a First Report, but the WCB fined the employer $100 for filing it “late.” Superior Court Justice Paul Fritzsche overturned the fine and also suggested that the WCB consider amending its First Report from to avoid this problem in the future. Employers are reminded that Box 42 should be interpreted to mean not merely the date that the employer was notified of an injury but, in fact, the date that the employer was notified the injury was work related. Similarly, Box 43 should be filled in as the day the employer was notified the employee was claiming to be out of work for a worker’s comp injury. Box 20b is similar in the Notice of Controversy.

PI Stacking

The case of Bisco v. S. D. Warren involves the concept of stacking permanent impairment ratings for workplace injuries. The stacking concept is well known to law firms that specialize in workers’ comp, but Bisco has brought stacking to the attention of attorneys with broader based practices. The court ruled: “Bisco, the employee, bore the burden of raising the issue of whether permanent impairment from unrelated injuries should be stacked for the purpose of obviating the durational cap…. The employer then bears the ultimate burden of proving that it is entitled to discontinue benefits.” The court decided that Hearing Officer Jerome had applied too high a standard when she looked to Bisco to convince her that permanent impairment from the unrelated injuries should be stacked. It was enough for the employee to produce evidence. It was then up to the employer to demonstrate by a preponderance of the evidence that, in this case, the 1999 injury did not aggravate or accelerate the 1995 injury. The Law Court in Bisco shifted the burden of proof from the employee to employer in permanent impairment stacking cases. It is now much easier for employees to benefit from stacking permanent impairment ratings.

“Coming and Going”

Finally, there is the very important decision involving liability for travel, and what constitutes “on the clock” for an employee. In Spencer v. VIP ,Justin Laliberte, an hourly employee of VIP, volunteered to help set up a promotional show for VIP. He was given $25, in part to cover his expenses. On his way home, he crossed the centerline and tragically crashed into the Spencer family car. Mrs. Spencer died, and her child and husband were injured. Mr. Spencer, on behalf of himself, his child and his late wife, initiated legal action, seeking damages against VIP. His case was dismissed under a summary judgment ruling. In their ruling, the Law Court vacated the summary judgment and allowed the lawsuit to proceed. The majority decision considered that Laliberte was paid $25, that VIP paid him workers’ comp, and that the traveling occurred just before and just after he completed his tasks.

Judge Levy joined Judges Saufley in his written dissent. “The decision of the court today may ultimately cause employers to become the insurer for all harm caused on the highways by their employees while driving to work. It puts Maine out of step with tort law across the country.” These judges felt it was inappropriate for such a precedent to be set by the court; rather, they recommended the legislative process during which costs and risks could have been debated. Saufley further wrote: “We should apply the law that exists today: a person who is going to or coming from work is responsible for his or her own actions…. He was not under the control of VIP… Laliberte was done with work for the day. He was not acting on behalf of his employer, and his allegedly negligent conduct was outside the contours of any employment relationship with VIP.”

On September 19, 2003, the Maine Supreme Court decided on D’Amato v. S.D. Warren, the case concerning the continued employment of two Hearing Officers.

The introductory summary :   “We affirm the decision concluding that although the hearing officer’s appointment by the Workers’ Compensation Board expired on December 31, 2002, she retained de facto authority to issue her decision in January 2003.”

This means that the hearing officer in question would have no authority to issue decisions on new cases after December 31, 2002, but had de facto authority to decide cases on which the evidence closed prior to December 31, 2002, by virtue of Paul Dionne’s Order to that effect. The Board had the discretion to provide terms of employment for the hearing officers, and that when those terms expired, the employment ended, and that no further action was needed to end the term. Therefore, it is clear that neither McCurry nor Johnson have authority to act as hearing officers after December 31, 2002 with respect to newly arising cases, and that their limited authority was to decide the cases pending for decision as of December 31, 2002.

To read the entire decision, go to http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=me&vol=03me116da&invol=1