Maine WC Alert: Appellate Division Addresses the Issue of Timely Notice in Two Recent Decisions
For claims for which the date of injury is on or after January 1, 2013, unless otherwise provided by the Maine Workers' Compensation Act, proceedings may not be maintained unless notice of an injury is given within 30 days after the date of injury. (39-A M.R.S.A. 301)
Two recent decisions illustrate the very fact-specific determination of whether notice was timely and what type of evidence is required to support a finding of timely notice.
Flesher v. Inland Hospital
In Flesher v. Inland Hospital (WCB App. Div. No. 19-25 [July 26, 2019]), Inland Hospital argued that the administrative law judge (ALJ) erred in finding that the Hospital had adequate notice of an injury.
Flesher had a longstanding back condition. In June 2012, at work, Flesher’s back pain worsened. On August 30, 2012, Flesher’s back pain intensified after she hand-carried a stack of charts. She called the supervisor to say she would not be coming in the next day. On August 31, 2012, Flesher spoke with Beth Clifford, whose job was to handle HR issues for the Hospital. Ms. Clifford asked Flesher if this was a workers’ compensation issue. Flesher responded, “no, because I had a prior existing condition with my back anyway.” At that time, Flesher did not understand that an aggravation of a preexisting condition could be compensable. On October 4, 2012, while seated at home, she felt “a complete burst” in her back. She was taken to the hospital.
In finding timely notice, the ALJ found Flesher (1) “had told her supervisor in the records room that the file retrieval work was causing her increased back pain,” which caused her to request a different assignment; and (2) that while “Ms. Flesher mistakenly believed that her preexisting back condition would prevent her from making a workers’ compensation claim, Ms. Clifford, whose job was to handle human resource issues and workers’ compensation claims for Employer’s hospital, presumably understood that this was not the case.”
The Appellate Division found that “Ms. Clifford did not testify at the hearing. The ALJ attributed to the Hospital specific knowledge concerning workers’ compensation law that she presumed Ms. Clifford knew. Without evidence on the point, this was unwarranted speculation.” As for the ALJ’s finding, that Flesher “had told her supervisor in the records room that the file retrieval work was causing her increased back pain,” this is unsupported by competent evidence. Although this finding may have been inferred from Flesher’s testimony that she requested a different assignment after a day or two working in the records room, “it is unclear whether the ALJ would determine that this finding, standing alone, provides an adequate basis for finding timely notice.”
Gelinas v. CMP
In Gelinas v. CMP (WCB App. Div. No. 19-26 [July 26, 2019]), CMP appealed from a decision granting a Petition for Award regarding a September 18, 2014, gradual back injury, asserting that the ALJ erred in finding that Mr. Gelinas had established timely notice pursuant to § 301. The Appellate Division affirmed.
Gelinas worked on power lines for CMP. In 2014, his job responsibilities increased. He began traveling significantly more in a company truck. He began to experience progressively worsening back pain, which he attributed to the seat in the truck. In January 2015, Gelinas underwent an MRI, which showed a disc herniation in his lower back. Gelinas notified his supervisor of the MRI results. He filed his Petitions the following month.
In October 2015, a § 312 examiner found that the back injury manifested on January 26, 2015. The ALJ rejected the examiner’s opinion, finding that the injury manifested itself in 2014, and Gelinas was aware during that time that the cause of his back pain was the seat in the company truck. The ALJ established the date of injury as September 18, 2014 (the date Gelinas underwent X-ray imaging of his back).
The ALJ found that “[Gelinas] informed [CMP] of what he knew when he knew it,” and that Gelinas “directly connected his back problems to a faulty seat in his work truck and in a timely manner told his supervisor about that fact.” The ALJ found that Gelinas “directly connected his back problems to a faulty seat in his work truck and in a timely manner told his supervisor about that fact.”
The Appellate Division found, “[i]t was reasonable for the ALJ to infer that [Gelinas] informed the supervisor that the seat was the source of his low back pain. Although [Gelinas] did not explicitly testify that he complained about the seat as the cause of his injury, the ALJ’s finding that he informed CMP of his back problems when reporting the faulty seat is a reasonable and logical inference, more than mere surmise or conjecture, derived from competent evidence.” Gelinas reported his back injury as work-related within the statutory time frame.