WCB App Div Says File Another Notice of Controversy

The Maine Workers’ Compensation Board has just issued a new decision upholding the finding of a 14-day violation and the award of incapacity benefits without deducting for a prior non-work condition.

In John Paradis v. Pine State Trading Co., Mr. Paradis delivered beverages for Pine State and injured his back at work on 8/19/11. He got treatment and was given restrictions and a helper, so he was able to continue working, but he missed 2 days of work. Although Mr. Paradis did not actually request payment of WC incapacity benefits, Pine State filed a “full-denial” Notice of Controversy on 10/24/11, “questioning why Mr. Paradis was losing time sporadically.” On 4/23/12, Pine State laid Mr. Paradis off because they could no longer accommodate his work restrictions. Mr. Paradis had a prior non-work-related knee injury which continued to degenerate, so he had knee replacement surgery in June 2012 and recovered by January 2013.

On 5/19/14, Mr. Paradis wrote to Pine State asking for payment of total incapacity benefits from the date of the layoff to the present and continuing. Pine State declined to pay benefits and pointed out that it had already filed a full-denial NOC in 2011 and would therefore not file another one. Mr. Paradis filed petitions, and Judge Knopf granted them, both on the merits of the case and because of a “14-day violation.” She found that when the employee lost two days from work due to his work injury in October of 2011 “there was no claim for benefits,” and therefore no obligation to file a NOC. Instead, “the first articulation of any claim for lost time benefits was set forth in the May 19, 2014 letter.” Accordingly, there was an ongoing 14-day violation due to the failure to file another NOC within 14 days of receiving the 2014 letter. Although Dr. Donovan’s §312 IME apportioned 50% of the incapacity to Mr. Paradis’ non-work-related knee, Judge Knopf declined to reduce his benefits accordingly, because the knee condition was a pre-existing condition and not a subsequent non-work injury under §201(5). Pine State appealed.

The Appellate Division panel upheld Judge Knopf’s decision, holding that “the filing of a protective NOC in the absence of a claim for benefits does not discharge an employer's future obligation under the 14-day rule.” The panel ruled that another NOC in 2014 would not have been “duplicative” of the earlier one because “there was no claim for benefits” at the time the 2011 NOC was filed. The panel also held that pre-existing conditions that gradually worsen do not qualify as a “subsequent medical conditions” for which an offset is available under §201(5).

This decision appears to support the position that, if an employee has a work injury and the employer knows he is losing time because of it, there is no obligation to file a NOC unless there is a specific “articulation of a claim for lost time benefits.” We would welcome an explicit ruling to that effect, but in our opinion, employers and insurers take that position at their peril. The better practice, and the most important lesson here for Maine employers, is this: when you receive or know about any potential claim for WC incapacity benefits, file another NOC, even if you previously filed one on the same injury.

If you have any questions, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law