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August 31, 2020 Article

Maine Workers' Comp Alert: Update on Appellate Division Findings on Notice of Injury Requirements

Maine Workers' Comp Alert

Maine WC Appellate Division Affirms Decision Finding Untimely Notice of Injury; Reiterates Requirements for Timely Notice

As background, the notice period is 90 days for dates of injury between January 1, 1993, and January 1, 2013.

For dates of injury on or after January 1, 2020, notice of the injury must be given to the employer within 60 days. Notice must be provided to the employer within 30 days of the date of injury for dates of injury between January 1, 2013, and January 1, 2020.

Section 302 provides that lack of timely notice does not bar a claim if the employer or employer‘s agent has “knowledge” of injury.

There is a “Mistake of Fact” exception to the notice requirement. Section 302 provides that lack of timely notice is excused if the failure to give timely notice is the product of an employee mistake of fact. The mistake of fact exception to the notice requirements applies when an injury, or its cause, is not recognized due to a mistake of fact (Pino v. Maplewood Packing Co., 375 A.2d 534, 537 [Me. 1977]). The exception applies in situations where the injury is latent or its relation to the injury is not perceived (Id.).

In Pelletier v. Town of Acton, Deborah Pelletier appealed a decision (Stovall, ALJ) denying her Petitions for Award and for Payment of Medical, alleging a July 22, 2014, date of injury. Ms. Pelletier contended that the administrative law judge (ALJ) erred in determining that: (a) the date of her gradual, right, upper-extremity injury was in fact November 30, 2013; (b) notice given on August 21, 2014, was untimely pursuant to § 301; and (c) Ms. Pelletier was not operating under a mistake of fact that tolled the notice period. The decision was affirmed.

The ALJ found that the date of the gradual injury is November 30, 2013, because at that time Ms. Pelletier believed that her pain was the result of overuse at work and her CTS. He supported that finding with citations to Ms. Pelletier’s testimony that she suffered the onset of symptoms in November 2013, after which she sought help from the school’s occupational therapist, who gave her certain tools to work with to alleviate her symptoms while writing. She also testified that she believed the symptoms were provoked by her work activities. “This finding is permissible on the record before us, and accordingly, we find no error.”

The ALJ also found Ms. Pelletier “was aware of the work relatedness of her injury in November of 2013 but did not provide her employer with notice until August 21, 2014.” This finding is based on Ms. Pelletier’s testimony, in which she stated she had related her symptoms to her increased workload in November 2013. The Appellate Division affirmed. “This finding provides the factual predicate for the determination that notice was untimely, and thus is adequate for appellate review. And, because the finding is supported by competent evidence in the record, we do not disturb it.”

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