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.”

Firm Highlights

Publication

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

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...

News

Attorney Evan Hansen Selected by Peers as “Lawyer of the Year” in Best Lawyers in America 2021

Preti Flaherty attorney Evan Hansen has been recognized in Best Lawyers in America 2021 as the “Lawyer of the Year” for the Portland region in the field of Workers' Compensation Law - Employers. Inclusion in...

Publication

Maine Workers' Comp Alert: Appellate Division Affirms Burden of Proof in Death Presumption

WC Appellate Division Affirms Placement of Burden of Proof on Employer to Disprove Facts Presumed Under the Death Presumption A recent decision from the Appellate Division centers on the burden of proof in the...

Publication

Maine Supreme Court Affirms Decision on WCB Rule 2 §5 Termination of Benefits Prior Notice Requirement

Notice Is Required Prior to Termination of Benefits for Durational Cap Under Former WCB Rule, Even When Discontinuance Is Sought by Petition Weekly compensation for partial incapacity benefits under the Workers’ Compensation Act are...

Publication

Maine Workers' Comp Alert: Board Updates Fee Schedule

The Maine Workers’ Compensation Board has completed its annual update with respect to Appendix III (inpatient facility fees) for dates of discharge on or after October 1, 2020, in accordance with Title 39-A M.R.S.A...

Publication

Maine Workers' Comp Alert: WCB Revises Fee Schedule

The Maine Workers' Compensation Board has completed the annual update of its Medical Fee Schedule. Appendix II (professional fees) and Appendix IV (outpatient facility fees) have been updated in accordance with Title 39-A M.R.S.A...

News

48 Preti Flaherty Attorneys Selected by Peers for Inclusion in Best Lawyers in America 2021, Including 4 “Lawyers of the Year”

Forty-eight Preti Flaherty attorneys have been named to Best Lawyers in America 2021, including four recognized on the inaugural “Ones to Watch” list for attorneys earlier in their careers and four “Lawyer of the...

Publication

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

The Maine Workers’ Compensation Board met remotely on October 13, 2020, for its monthly business meeting. Following are some developments with respect to reappointments, the appointment of a Section 312 examiner, and claims related...

News

U.S. News – Best Lawyers Ranks Preti Flaherty Among 2021 Best Law Firms

Preti Flaherty has been named among the 2021 Best Law Firms by the U.S. News – Best Lawyers rankings. To be eligible for ranking, a law firm must have at least one attorney named...

Publication

Maine Workers' Comp Alert: WCB December Updates - Covid-19 Claim Statistics and Appeal Accepted by Law Court

The Maine Workers’ Compensation Board met for its regular business meeting on December 8. Among the items discussed were COVID-19 claim statistics and an appeal accepted by the Law Court dealing with a fascinating...