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WCB App Div Affirms §201(4) Decision In Apportionment Case

The Maine WC Board Appellate Division has just issued a new decision affirming the denial of petitions filed by one concurrent employer against another for apportionment of benefits, and reiterating that the “significant aggravation” language in 39-A MRSA §201(4) applies only if the employee has had an actual work injury.

In Gail Levesque v. Daigle Oil Co. v. Louis Paradis, Inc. , Ms. Levesque was a full-time sedentary clerk at Daigle Oil and a part-time grocery store shift- supervisor at Paradis, where she stocked shelves and moved items around the store. She had a pre-existing right knee condition and had already undergone two surgeries, but in 2011 she injured her knee when she slipped on ice in the Daigle parking lot. She returned to work at both jobs, but her knee grew increasingly painful, especially when she was working at Paradis. In 2013, Dr. Michaud operated on her knee and released her to return to work only at Daigle Oil; in 2014 Dr. Michaud performed a total knee replacement.

Ms. Levesque filed petitions against Daigle Oil, which then filed its own petitions against Paradis, alleging a 2012 gradual injury that significantly contributed to her need for both surgeries. Dr. Bradford performed a §312 IME and found that Ms. Levesque’s knee condition was causally related to only the 2011 injury at Daigle Oil, and that her work at Paradis did not “aggravate, accelerate or combine with the 2011 injury in a significant manner.” At his deposition, Dr. Bradford conceded that Ms. Levesque’s work at Paradis after the 2011 injury contributed in a "small" or "minor" way to increase her symptoms, but he said it did not cause any new or separate injury. He admitted that “such a contribution could be viewed as significant,” but he felt it did not contribute to the need for surgery or the subsequent disability.

Judge Pelletier concluded that Daigle Oil did not carry its burden of proving that Ms. Levesque’s part-time work at Paradis caused an injury, let alone one that contributed to her disability in a significant manner. Daigle appealed, but the WCB Appellate Division upheld the decision. The panel reiterated its holding in prior cases that, for §201(4) to apply, an employee must first have a work-related injury. It upheld Judge Pelletier’s finding that Ms. Levesque’s increased symptoms at Paradis did not rise to the level of a gradual work injury, and the panel approved of his “considering the larger context” in his interpretation of Dr. Bradford’s §312 IME report and testimony.

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Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law