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June 13, 2016 Article

Workers' Compensation Alert: Maine Workers' Compensation Board Appellate Division Rules on Application of Rule 1.1

In Nickerson v. Paul’s Marina, App. Div. Dec. No. 16-17, the employee was struck in the head with a beam on May 4, 2010. He reported the injury to a representative of the employer on May 7, 2010. Paul’s Marina contacted its insurer, but no First Report was filed. On June 1, 2010 Nickerson completed and signed a “Statement of Injured Employee” at the insurer’s request. On that form he indicated that the injury only caused one day of incapacity. In early October 2010, Nickerson’s mother contacted the insurer to inform it that her son was out of work on account of the May 4, 2010 injury. A NOC was filed.

Nickerson argued that the employer was required to file a NOC at the time he alleged a single day of incapacity, seeking benefits for a violation of WCB Rule c. 1.1.

The ALJ found no violation of Rule 1.1 because Paul’s Marina was not provided with information necessary to conclude that a claim for incapacity benefits was being made on May 24, 2010 and that Nickerson did not consider himself out of work due to the injury until October 2010.

The Appellate Division found that the claim was timely controverted when there had been a claim of ongoing incapacity in October 2010. The Appellate Division also found that, based on the report to the insurer on June 1, 2010, the ALJ had a rational basis to conclude that Paul’s Marina did not violate Rule 1.1 because, regardless of the employee’s statement on May 24, 2010, he effectively withdrew his request for lost wage benefits before the 14 days had expired.

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