Maine Supreme Court to Address "Tolling"of Statute of Limitations in Successive Injury Case

On November 14, 2017, the Maine Supreme Court will hear oral argument in the case of Flanagin v. Maine Department of Inland Fisheries & Wildlife. This case deals with the concept of “tolling” of the statute of limitations. Under Maine law, “the limitations period for a claim is tolled if payments made by the employer or insurer or a subsequent injury were made with ‘contemporaneous notice’ that the payments ‘were for treatment that was in part necessitated by’ the earlier injury.” Leighton v. S.D. Warren Co., 2005 ME 111. The “contemporaneous notice” issue arises from a concern that an employer may not have exclusive control, through its claim handling practices, over the assignment of dates of injury to a claim that may eventually have an impact upon the tolling or application of the statute of limitations in successive injury cases. 

Leighton held that an employer bears the burden of establishing the date of latest payment for the original injury, “but that the burden shifts to the employee to establish that the statute of limitations has been tolled through contemporaneous notice.” As the Appellate Division stated, “[i]t is through this explicit burden-shifting mechanism that an employer’s exclusive ability to assign incapacity or medical payments to a date of injury can be questioned and tested.” In Leighton, the Law Court noted that an employee could satisfy this burden by:

for example, submitting medical records that attribute the onset of new symptoms at least in part to the prior injury, along with evidence that the insurer or employer had been made aware of the contents of the records at the time payments were made. Or, the employee could submit proof that he or she had asserted a belief to the employer at the time payments were being made that the older injury is at least in part responsible for the later incapacity.

Turning to the facts of Flanagin, on July 31, 2014, the Appellate Division of the Workers’ Compensation Board found the employee entitled to workers’ compensation benefits on account of an injury sustained in 1975 while working for the Department of Inland Fisheries and Wildlife (the “Department”). It rejected the Department’s contention that the ALJ erred in finding it had “contemporaneous notice” within the limitations period sufficient to toll the statute of limitations on a 1975 injury. The Appellate Division found the Department had contemporaneous notice within the 10-year statute of limitations and that payments made on a 1979 injury were related to a 1975 injury.

The Appellate Division found that the Law Court cases, taken together, “endorse as sufficient a relatively low threshold to meet the employee’s burden to establish the causative relationship.” Therefore, “the employee must show that the earlier injury ‘contributed in some part’ to the later incapacity or need for medical treatment, or that medical treatment after the later injury was ‘in part necessitated by’ the earlier injury. An employee may also, alternatively, demonstrate that he or she informed the employer that the earlier injury was still in play at the time of the payments. This is not the same standard as may be required to establish medical causation in a contested workers’ compensation claim. Instead, it is a “somewhat lower ‘connection’ standard that is unique to the circumstances inherent in determining whether the employer’s unilateral assignment of dates of injury in successive injury cases is, or is not, correct.”

With respect to the 1975 injury at issue, the Appellate Division found “the [ALJ] raised the legal bar to a height not required by [Law Court precedent.]” According to the Appellate Division, a 1989 report conveyed the necessary information to the Department to meet the employee’s burden with respect to the 1975 injury and was sufficient to establish contemporaneous notice as a matter of law. As the Appellate Division pointed out, the 1989 report did “more than merely recite the history of [the employee’s] low-back problems, but it indicates that the employee reported to the physician in 1989 that the 1975 injury was his “major back injury” and that he still had the same complaints of low-back pain and left leg pain in 1989 that he had in 1975.

In other words, the doctor’s clinical examination demonstrated that the then-current diagnosis of chronic low-back pain started with the 1975 injury and remained unchanged over the years despite two surgical procedures. The Appellate Division found this was “sufficient to establish a ‘partial attribution’ or contribution in part of the 1975 injury to then-current symptomology.” As well, the report also sufficiently demonstrated that the later-in-time treatment was partially necessitated by the earlier injury. In addition, the Appellate Division also found that the 1989 report satisfied the alternative manner of providing contemporaneous notice: assertion of a belief by the employee at the time payments were being made and within the 10-year window that the older injury was in part responsible for the later incapacity and treatment.

On remand, the ALJ found the employee had proven that the Department had been put on notice that medical treatment for a 1979 work injury implicated the 1975 injury.

The Department appealed to the Law Court, arguing that the Appellate Division erred by determining that there was a tolling of the applicable statute of limitations and upholding an award of benefits that includes incapacity for a date of injury barred by the statute of limitations.

This is one of several workers’ compensation cases the Law Court has accepted for appellate review this year.

Appellate Division Revisits Retirement Presumption in Various Contexts

Under the “retirement presumption” (§ 223 of the Maine Workers’ Compensation Act), an employee who terminates active employment and is receiving nondisability pension or retirement benefits is presumed not to have a loss of earnings as the result of a compensable injury or disease. This presumption may be rebutted only by evidence that the employee is medically totally incapacitated.

By way of background, the Maine Supreme Court has found, “[t]he retiree presumption is designed to assist fact-finders in determining when an employee who has reached or neared the conclusion of his or her working career will remain eligible to receive workers’ compensation benefits.” Downing v. Dep’t of Transp., 2012 ME 5. In Cesare v. Great N. Paper Co., 1997 ME 170, the employee announced an intention to retire early and was on the cusp of retirement when he sustained a new work injury. Due to the effects of the new work injury, he went out of work voluntarily before his retirement date; he was not working on the day he retired. The Court held that because he was not working as a result of a work-related injury, Cesare did not terminate active employment on 2/1/87.

“The fact that an employee has announced an intention to retire, or requested the necessary paperwork, or applied for retirement, does not affect the status of the employee as actively employed until the effective date of retirement. The presumption did not apply. The Cesare Court distinguished Bowie v. Delta Airlines, 661 A.2d 1128 (Me. 1995) where the employee argued that because he was working light-duty at the time of retirement, he was not actively employed for purposes of § 223. The Maine Supreme Court rejected this argument, holding that the phrase “active employment” is usually understood to mean one who is actively on the job and performing the customary work of his job.

In Perry v. Meadwestvaco, WCB App. Div. No. 17-29 (September 13, 2017) the employee appealed a decision denying his Petitions for Restoration due to the “retirement presumption.” The Appellate Division found the ALJ’s application of the retirement presumption was not erroneous. Although the employee was not performing the same duties of the job he held at the time of his original work injury, he performed the customary duties of his job, with restrictions, for many years until retirement. The Appellate Division found this work constitutes “active employment” for purposes of the presumption. The Appellate Division went one step further and noted, as an aside, that the employee did not prove that he had been working under duress or that he was unable to perform work suitable to his qualifications; two avenues which may offer relief from the retirement presumption if proven.

This is not the first decision this year from the Appellate Division dealing with the retirement presumption. In Wing v. NewPage, WCB App. Div. No. 16-5 (March 7, 2016) the Appellate Division applied the retirement presumption because the employee continued working, albeit light-duty, up to the date of retirement from active employment. In Hallock v. NewPage, WCB App. Div. No. 16-6 (March 7, 2016) the Appellate Division found the presumption applied where an employee had used accrued vacation time leading to a retirement date. In Casey v. NewPage, WCB App. Div. No. 16-9 (March 22, 2016), the Appellate Division found the presumption applied because the employee was actively employed at the time of retirement despite her claim that she retired because she was working with restrictions for financial reasons despite her injuries, which constituted coercion by the employer.

Expect more litigation on the retirement presumption in light of the fact-specific nature of workers’ compensation matters and the ever-changing law. The Appellate Division suggests that under the right facts (i.e. duress or an inability to perform work suitable to ones restrictions) the presumption may not apply. Time will tell whether the Appellate Division addresses an appeal with these facts in the future. For now, it is clear that as long as an employee is working in some capacity up until a retirement date, this is sufficient to trigger the presumption.