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WCB App Div affirms no 14-day violation and no comparative medical evidence

The Maine Workers’ Compensation Board Appellate Division has issued two new decisions, one affirming denial of a petition alleging a 14-day violation, and the other affirming denial of a petition for failure to prove a change of circumstances since the last decree. Although the employers prevailed in both cases, they still provide employers and insurers with guidance in handling similar cases.

In Faye Boyle v. W.W. Osborne, Boyle’s husband died of mesothelioma, and she filed a petition for death benefits against Osborne and two alleged insurers, Fireman's Fund and American Insurance. Boyle attempted to serve her petition by certified mail to all three respondents, but the petitions sent to Osborne and American were returned as undeliverable. The return receipt from Fireman's showed that the petitions were delivered there, but it failed to show the person who received them or the date of receipt. A year and a half later, Boyle filed a petition for payment, alleging a 14-day violation.

Judge Greene (now retired) denied the petition for order of payment on the grounds that service of the petitions was successful only as to Fireman’s, which is not the actual insurer for Osborne. Although American was a subsidiary of Fireman’s, and a Fireman's adjuster finally filed the Notice of Controversy for both American and Osborne, Judge Greene found Fireman’s and American were different entities, so the initial service of the petition on Fireman's did not start the 14-day period running.

Boyle filed an interlocutory appeal, which the Appellate Division accepted. Although the WCB amended the 14-day rule in 2012 and expressly provided that it applied to all dates of injury and to pending cases, Boyle argued that the petition was served under the old rule, which should apply. The Appellate Division found that under both the old and new 14-day rules, the petition must be served on the correct insurer to start the 14-day rule running. Although Osborne, Fireman’s and American avoided 14-day liability in this case, Maine employers and insurers can avoid litigation costs and onerous penalties by filing NOCs upon first notice of dubious claims.

In Stevens v. L.L.Bean, Stevens injured his back at work and received a 2013 decree entitling him to ongoing partial benefits. Stevens later filed a petition for review, alleging total incapacity, but he failed to produce any "comparative medical evidence" comparing his present condition to his condition in 2013. Instead, he presented reports indicating only current opinions of total incapacity. Judge Stovall denied Stevens’ petition on grounds of res judicata, and Stevens appealed.

The Appellate Division rejected Stevens’ argument that Judge Stovall should have made the medical comparison himself by using the reports in evidence showing total incapacity. The panel agreed that Stevens failed to meet his burden of production or proof as he did not submit a "comparative medical opinion in which the practitioner reviewed the medical evidence relied on in 2013 and opined that Mr. Stevens’ condition had deteriorated." The same, of course, applies to employers who seek to change compensation payment schemes established by prior ALJ decisions: truly “comparative” medical evidence is required.

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

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law