March 17, 2017

Workers' Comp Board Appellate Division Addresses Various Issues Relative to Occupational Disease Cases

Estate of Boyle v. WW Osborne, Me. WCB App. Div. 17-09 (Feb 28, 2017)

The widow and estate of the decedent appealed a decision denying a Petition to Order Payment under Rule 1.1 in an occupational disease case. Rule 1.1 requires that, within 14 days of notice or knowledge of a claim to incapacity or death benefits for a work-related injury, an employer or insurer must accept a claim, pay without prejudice, or deny the claim and file a Notice of Controversy. The primary issue was the interplay between adequate notice and knowledge of a claim as it relates to a subsidiary of the insurer on the risk. The Board found that even though American Insurance is a subsidiary of Fireman’s Fund, it issues policies in its own name and its own coverage policy for the relevant period was on file with the Board. Thus, any notice to Fireman’s Fund by petitions designating it as the “insurer" was insufficient to establish that American Insurance had “notice or knowledge” of the claim. The Estate cited to no authority for the proposition that notice to a parent company constitutes notice to a subsidiary.. The Appellate Division found the Judge did not err by failing to impute a corporate relationship between Fireman’s Fund and American Insurance beyond that set forth in the stipulation. Because Fireman’s Fund was not “the insurer,” any notice it received was not imputed to W.W. Osbourne

Between the Maine Supreme Court case of Joyce v. Commercial Welding and this case, it is abundantly clear there can be a Rule 1.1 violation in an occupational disease case. It is also clear that notice to a parent company does not constitute notice to a subsidiary under Rule 1.1.

Estate of Boyle v. Lappin Brothers, WCB App. Div. 17-08 (Feb 28, 2017)

This was an appeal from part one of a “bifurcated” round of litigation in an asbestos occupational disease case. In occupational disease cases, the Board typically first addresses which employer and insurer is responsible for “last injurious exposure” and, after it does so, addresses issues of medical causation. In this case, the Judge found Lappin Brothers and its insurer to be on the risk for last injurious exposure but went one step further and found “”[t]hat exposure contributed to his contracting mesothelioma, an asbestos related disease".

The Appellate Division affirmed the Judge’s finding relative to last injurious exposure, but vacated and remanded for additional proceedings on issue of whether the employee contracted and died from an asbestos-related disease. On the issues of medical causation the Appellate Division found the record devoid of evidence, and the Judge’s assumption that the employers agreed the decedent developed an asbestos-related disease from asbestos exposure (i.e. medical causation), lacks support from any stipulation of the parties or competent evidence in the record.

Judge Stovall authored a dissenting opinion asserting the appeal should be dismissed because it is not a final opinion. The majority addressed this, however, finding that although the rules of the Appellate Division define a “decision” as a “final decision” that “fully disposes of a matter,” the rules governing the Appellate Division also were promulgated to “provide a prompt, and inexpensive review of a decision . . . .”, and a dismissal of the appeal would “unnecessarily prolong the involvement of parties who could potentially be finally reviewed of liability after this appeal”. It appears the primary concern here was that Judges have a “longstanding practice” of bifurcating asbestos-related litigation and that insurer is not potentially liable, can be dismissed in the first stage of proceedings.

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