November 2, 2020 Article

Maine Workers' Comp Alert: Appellate Division Affirms Notification Requirements for Occupational Disease Claims

Maine Workers' Comp Alert

WC Appellate Division Finds Timely Notice in Context of Occupational Disease Claim; No Independent Obligation to Notify Employer’s Insurer Where Not Required by Statute

Timely notice is critical for a viable claim under the Maine Workers’ Compensation Act (the “Act”). For claims for which the date of injury is on or after January 1, 2013, unless otherwise provided by the 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).

A recent decision emphasizes that there is no obligation to provide notice to the employer’s insurer unless the employee is self-employed at the time of injury. Specifically, where it is not possible to give notice to the employer and the employee is not under the independent obligation to notify the insurer, the lack of notice of notice to the insurer does not bar the claim to benefits.

In Desgrosseilliers v. Auburn Sheet Metal, Auburn Sheet Metal/MEMIC appealed a decision 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. § 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. . . . 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 administrative law judge (ALJ) found that pursuant to sec. 301, Desgrosseilliers had a duty to show that notice was provided to the employer or insurer within 30 days of February 26, 2016. However, the Appellate Division affirmed the decision. It found that section 301 plainly describes 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 for the purposes of section 301 notice, the “employer” does not include the “insurer,” except where specified.”

In this case, 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 and was out-of-business. As the ALJ found, the company had been owned and operated by Desgrosseilliers’s former wife, who 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.”