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WCB App. Div. Affirms 3 Awards

The Maine Workers Compensation Board's Appellate Division has issued 3 recent appellate decisions affirming the underlying decisions granting benefits in cases involving the burden of proof, res judicata, and the date of a gradual injury.

Louis Civiello v. Covanta Energy - Civiello apparently had a pre-existing back condition which he significantly aggravated at work, rendering him totally disabled. Covanta filed a Petition for Review arguing that the work injury had resolved, but former Hearing Officer Greene denied the petition and allowed Civiello to remain on total incapacity benefits.

Covanta appealed, but the Appellate Division panel affirmed the decision. The panel found that "the medical records and Civiello's testimony" provided support for the underlying decision, but the panel did not describe the evidence further. After the hearing, Civiello's PCP released him to part-time work with restrictions, and Covanta had a labor market survey done showing work available within those restrictions.

Although Civiello did not complete a work search, HO Greene ruled that it was not required because “work capacity was not attributed to him until after the hearing, just before the close of evidence.” The panel found this harmless error, however, because Civiello’s doctor testified Civiello could not do any of the jobs listed on the LMS, so the panel said Civiello “met his burden of production through medical evidence” alone, without doing a work search.

Raymond Butler v. Twin Rivers Paper Co. - Butler apparently injured himself at work and had earlier filed a Petition for Award, which former HO Greene apparently denied (the appellate decision lacks detail). Butler filed a Petition for Restoration, and Twin Rivers raised res judicata as a defense. Judge Jerome rejected that defense and granted the petition, and Twin Rivers appealed.

The Appellate Division panel sustained Judge Jerome's decision, noting that, in the initial decision denying benefits, HO Greene did not set Butler's level of incapacity but instead "expressly reserved" the issue, keeping it “open for future litigation.”

Steven Marean v. City of Portland - Marion was a Portland EMT and claimed a gradual PTSD injury from experiencing "the threat of death or actual death" during his work. He had been getting psychological treatment for this condition for years prior to claiming it as a work injury in 2012, when his doctor suggested he take time off from work or perform non-patient care duties.

He gave notice of this injury within 90 days of leaving work, but Portland raised notice as a defense anyway, claiming the actual date of this gradual injury occurred earlier. Marean filed a petition in 2013 and later amended it to include a gradual physical injury to his neck, arms, back and legs. Judge Jerome granted the petition on the PTSD but denied his petition on the physical injury because of late notice.

Portland appealed, but the Appellate Division panel affirmed the decision, finding that Judge Jerome conceived and applied the law correctly. Judge Jerome had found that the PTSD injury became "manifest" only on the day Marean left work -- not a month earlier when he and his doctor discussed that future possibility.

The panel cited the Maine Supreme Court's decision in Jensen, which held that "the date of injury for a gradual injury is the date on which the injury manifests itself.” The panel, however, said the Court had "referred interchangeably" to the injury date and incapacity dates, as though either one could be used as the date of a gradual injury. This expansive reading of Jensen would allow employees or ALJs to choose between multiple potential dates for a gradual injury, giving them flexibility to overcome notice or statute of limitations defenses.

If you have any questions about these or any other cases, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law