Sandra Dominguez v. Pyramid Fore St. Management LLC– Where the employee failed to identify the issue of a 14-day (Rule 1.1) violation in the Joint Scheduling Memorandum (JSM) and did not raise it until closing argument, the Appellate Division held the ALJ did not err by concluding the issue was waived. In the alternative the panel found a voicemail left by the employee for a supervisor was not adequate to state a claim for incapacity benefits. In Dominguez v. Pyramid Fore St. Management LLC, Dec. No. 23-03, Dominguez injured her wrist at work on March 26, 2019. Dr. Hanna diagnosed a sprain and pre-existing TFFC tear and ulnar impaction syndrome. Treatment was application of a brace and modified duty. Dominguez went out of work in August 2019 for unrelated medical reasons. Her supervisor understood she was to return to work in two weeks but she did not. On September 4, 2019 Dominguez left a voice mail for the supervisor in which she stated “workers comp’ had not been paying her perhaps because they thought she was out for unrelated reasons. She added that her hand still hurt and she would “fight for this”. The supervisor twice attempted to return the call unsuccessfully. He then sent a letter to her seeking further information on her “short term medical absence”. Having last seen Dominguez on July 15, on September 5, 2019 Dr. Hanna completed a return to work form releasing her without restrictions effective August 6, 2019.

On September 25, 2019 the employer filed a Memorandum of Payment for varying rates and a unilateral Discontinuance under 39-A M.R.S.A. sec. 205(9)(A), effective August 6, 2019, the date she had been retroactively released without restriction. On October 4, 2019 the supervisor advised the employee she could return to work once she updated her medical status. She did not return to work, which Pyramid treated as a resignation and refusal of employment.

The ALJ granted Dominguez’ petition for award for protection of the act, and accepted Dr. Hanna’s opinion that the effects of the injury resolved as of August 6, 2019. The Appellate panel held this was not error as the ALJ had discretion to accept or reject medical opinions, in whole or part. The ALJ found that it was equally plausible that the voicemail message was an expression of job dissatisfaction or intention to resign as it was a claim for benefits. The Appellate panel held the ALJ did not err by failing to make clear the denial of the 14-day claim was based on waiver, or the merits, as it was proper to deny on either basis. Because the 14-day issue was not raised until closing argument, and not identified in the JSM, Pyramid did not have a fair opportunity to introduce evidence on the question. It was within the ALJ’s allowable discretion to conclude Dominguez forfeited consideration by failing to add it to the JSM. Alternatively, on the merits the voicemail did not clearly state a claim for benefits.

The Appellate panel did agree with Dominguez that the ALJ failed to make adequate findings of whether Pyramid complied with sec. 205(9)(A) and remanded the case for further findings on that question.

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Thomas Getchell
Daniel F. Gilligan