November 9, 2021 Article

Maine Workers’ Compensation Appellate Division Update - November 2021

Maine Workers' Comp Alert

Below are two recent and interesting Maine Workers’ Compensation Appellate Division decisions. The first  deals with the compensability of injuries sustained in employer-sponsored athletic events. The second deals with the referral of an employee to vocational rehabilitation while at the same time the employee was found to be medically totally incapacitated.

Compensability of Injuries: Participation in an Employer-Sponsored Athletic Event

In Pike v. CNO Financial Group, Inc., WCB App. Div. No. 21-26 (October 5, 2021), the Maine Workers’ Compensation Board Appellate Division addressed 39-A M.R.S.A. § 102(11)(C) and affirmed a decision that an injury was not compensable because the injury occurred during participation in an employer-sponsored athletic event.

Under the Maine Workers’ Compensation Act, “Employee” does not include any person who is otherwise an employee, if the person is injured as a result of the person's voluntary participation in an employer-sponsored athletic event or an employer-sponsored athletic team. See 39-A M.R.S. § 102 (11)(C).

On June 6, 2016, Casey Pike began selling insurance policies for CNO Financial Group, doing business as Bankers Life and Casualty Company. The Bankers Life office in Scarborough sponsored an annual charity golf tournament. The tournament in 2017 was held at the Willowdale Golf Course in Scarborough. As she had done in 2016, on June 2, 2017, Ms. Pike did not play golf; she participated in the golf tournament by helping to put on the event. She registered golfers, sold raffle tickets, and helped with serving lunch in the club house. She also helped on the course handing out water and snacks and serving as a “spotter” near the green where a hole-in-one prize was offered.

After lunch, Ms. Pike was about to head out on the course in a golf cart when she was approached by the thirteen-year-old daughter of Ms. Pike’s manager at Bankers Life. The teenager asked if she could drive the cart around the course while Ms. Pike served water and snacks to the golfers. Ms. Pike let her drive. Ms. Pike sat in the passenger seat with her feet on top of a cooler filled with bottles of water. When Ms. Pike suggested it was time to head back to the club house to prepare for dinner, the teenager abruptly turned the wheel causing the cart to skid, ejecting both the driver and Ms. Pike from the cart. Ms. Pike’s face struck the ground causing serious injuries to her mouth, nose, and teeth, and she was taken to the hospital.

The Workers’ Compensation Board administrative law judge denied the claim, finding, “[a]lthough Ms. Pike did not participate in the golf event as a competitor, the language in section 102(11)(C) is broad enough to encompass her activities that day.” Specifically, “[t]he employee’s activities on the day in question, which included registering the golfers, selling raffle tickets, handing out water and snacks, helping with the lunch, and serving as a ‘spotter’ near the green for the hole-in-one contest, constitutes participation in an employer-sponsored athletic event within the meaning of 39-A M.R.S.A. §102(11)(C).” In sum, section 102 provides there is no coverage under the Act for the Employee’s activities.

The Appellate Division affirmed the ALJ's conclusion that the injury arose out of the Employee’s voluntary participation in an employer-sponsored athletic event. In so doing, the Appellate Division found that the ALJ's findings are adequate for appellate review and are dispositive in this case, involved no misconception of applicable law, and the application of the law to the facts was neither arbitrary nor without rational foundation.

Application of section 102(11) is obviously very fact-specific, with the outcome varying case by case. However, Pike is instructive in that there are not many published decisions from the Workers’ Compensation Board addressing this issue. With Pike, we now have further clarification from the Appellate Division that an employee need not actively “compete” in an employer-sponsored athletic event or team; simple participation is likely enough to trigger the provision and render an injury not compensable.

Referral to Vocational Rehabilitation with a Simultaneous Finding of Total Medical Incapacity

In Tyler v. Douglas Dynamics, WCB App. Div. 19-0029 (October 29, 2021). Douglas Dynamics argued that the ALJ’s referral of the case to vocational rehabilitation was inconsistent with the finding of total incapacity.

Under 39-A M.R.S.A. § 217(1), the board has authority to refer an employee for vocational rehabilitation for “evaluation of the need for and kind of service, treatment or training necessary and appropriate to return the employee to suitable employment.” The Appellate Division essentially found that even if an ALJ finds an employee is totally incapacitated under section 212, they can still refer an employee for vocational rehabilitation under section 217. This seems inconsistent with the general purpose of the statute. However, in this case, the Appellate Division supports its decision, noting “[t]he only requirement for such referral is that 'as a result of injury the employee is unable to perform work for which the employee has previous training or experience,' 39-A M.R.S. § 217(1). Based upon the ALJ’s finding that it is unlikely that he can return to his career in the welding trade, we find the referral of Mr. Tyler for vocational rehabilitation services was neither arbitrary nor without rational foundation.”

Looking Ahead

Time will tell whether a Petition for Appellate Review will be filed in either or both of the above cases. If so, time will tell whether either of these cases are accepted for appellate review. Please stay tuned for further updates.

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