February 10, 2021 Article

Maine Workers' Comp Alert: Updates from the WCB February Monthly Business Meeting

Maine Workers' Comp Alert

The WCB met remotely on February 9, 2021, for its monthly business meeting. Following are some developments with respect to an appeal accepted by the Maine Supreme Court and claims related to Covid-19.

COVID-Coded Claims Are Trending Down

Executive Director John Rohde reviewed COVID-coded claim numbers as of the end of January (2,970 COVID lost-time FROIs as of the end of January). COVID-coded claims are reportedly trending down. During the week of January 12, there were 165 new reports, while in the week of February 2 there were 103.

Maine Supreme Court Agrees to Take Appeal in Desgrosseilliers V. Auburn Sheet Metal

In Desgrosseilliers v. Auburn Sheet Metal, Auburn Sheet Metal/MEMIC appealed a decision (Goodnough, ALJ) finding that Desgrosseilliers, who was last injuriously exposed to asbestos during his employment with Auburn Sheet Metal in 1994 (insured by MEMIC), was not barred from pursuing his claim for an occupational disease by the notice provision, 39-A M.R.S.A. section 301. Desgrosseilliers asserted that, under the statute, he had no obligation to notify Auburn Sheet Metal’s insurer within 30 days of the date of injury or otherwise. Section 301 provides, in part:

The notice must be given to the employer, or to one employer if there are more employers than one; or, if the employer is a corporation, to any official of the corporation; or to any employee designated by the employer as one to whom reports of accidents to employees should be made. It may be given to the general superintendent or to the supervisor in charge of the particular work being done by the employee at the time of the injury. Notice may be given to any doctor, nurse or other emergency medical personnel employed by the employer for the treatment of employee injuries and on duty at the work site. If the employee is self-employed, notice must be given to the insurance carrier or to the insurance carrier's agent or agency with which the employer normally does business.

The Appellate Division affirmed the decision. The ALJ found that, pursuant to section 301, Desgrosseilliers “was under a duty to demonstrate that notice was provided to the employer or insurer within 30 days of February 26, 2016.” (emphasis added). “However, section 301 describes in plain language those people or entities to whom an employee must give notice in various circumstances. The only situation in which the employer’s insurer is specified as the recipient of the required notice is when the employee is self-employed. There is no contention that Mr. Desgrosseilliers was self-employed. Thus it is apparent from the context that for the purposes of section 301 notice, employer does not include insurer, except where specified.”

“Here, we are presented with a case in which the employee was under an obligation to notify his former employer of his injury, but that obligation arose at a time when that employer no longer existed. The ALJ found as fact and there is no dispute that Auburn Sheet Metal was ‘long out-of-business’ by 2016. The company had been owned and operated by Desgrosseilliers’s former wife who, the ALJ noted, had ‘passed away a number of years ago.’”

The Appellate Division held:

When providing the statutorily required notice to an employer is impossible, and there is no specific legislative directive that the employee notify an insurer, the failure to provide notice within the time constraints of section 301 cannot be held to bar a claim. The term ‘employer’ in section 301 does not include the employer’s insurer and does not impose an independent obligation to notify an employer’s insurer of an injury—except in the circumstance of a self-employed employee.

The Law Court hears only discretionary appeals from the WCB's Appellate Division, entertaining such appeals sparingly.

Looking Forward

The next meeting of the WCB is set for March 9 at 10 a.m.

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