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WCB App Div Decisions

The Workers’ Compensation Board Appellate Division has just issued 3 new decisions: (1) affirming an award finding Lyme disease compensable; (2) affirming an award finding of “contemporaneous notice” that a later injury was related to an earlier injury, thus extending the statute of limitations; and (3) vacating an award because the statute of limitations had expired.

In Dustin Pickering v. Maine Department of Conservation, Pickering worked as a forest ranger and developed Lyme disease from ticks he picked up in the course of his employment. Dr. Dubocq provided an “unrebutted medical opinion that his diagnosis was work-related,” and Judge Hirtle granted his petitions awarded incapacity and medical benefits. The Department appealed, but the Appellate Division affirmed the decision, finding “sufficient competent evidence in the record to support the ALJ’s finding that his Lyme disease was work-related.”

In Ronald Flanagan v. Maine Department of Inland Fisheries & Wildlife, Flanagan injured his back at work in 1975 and apparently received payment of benefits from that injury. He reinjured his back at work in 1979, and Judge Jerome found that, when the Department paid him benefits on that injury, they had “contemporaneous notice” that the payments related in part to the 1975 injury, thus extending that statute of limitations on the 1975 injury under the Maine Supreme Court’s decisions in Klimas and Lister.

The Department also raised for the first time the defenses of “waiver” (conduct signifying conscious intent to relinquish a legal right) and “laches” (waiting too long to assert a right to the prejudice of an adverse party), but Judge Jerome declined to apply these defenses, because “equitable remedies are not available under the Act.” Finally, the Department argued that Flanagan had other non-compensable injuries which contributed to his incapacity, but Judge Jerome found that these subsequent aggravations related to the original 1975 injury and awarded Flanagan total incapacity benefits, and the AD panel found no error in those findings.

In George and Doris Fournier v. Wade & Searway, Mr. Fournier was a sheet metal worker for 35 years, retiring in 1990, and dying in 2010 from esophageal cancer. In 2012, Mrs. Fournier filed petitions alleging that her husband's asbestos exposure in 1984 caused his cancer and death. Wade & Searway denied benefits on the basis of the claims were time-barred by the applicable statute of limitations.

Further, its insurer Reliant had become insolvent, and in 2001 a Pennsylvania court ordered that any claims against Reliant be brought by the end of 2003. Thus, the Maine Insurance Guarantee Association became involved in the case and argued that the MIGA statute time-barred Mrs. Fournier's claim. Mrs. Fournier argued that a 2002 amendment to the MIGA statute provided a “good cause” exception to the time bar provision that applied retroactively to her claim. Judge Goodnough agreed with Mrs. Fournier's argument, granted her petitions and awarded her benefits. MIGA appealed, and the Appellate Division found that Judge Goodnough had misconstrued the law by applying the exception retroactively and thus vacated his decision.

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

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law