Your Employee is Out of Work for a Non Work-Related Injury: Do You Owe Workers’ Compensation Benefits? The Answer May Surprise You

broken leg

In a pair of recent decisions, the Appellate Division of the Maine Workers’ Compensation Board has significantly restricted the availability of the “subsequent nonwork-related injury” defense to workers’ compensation claims. For the first time, Maine employees who are out of work for non work-related injuries or diseases sustained may be entitled to lost time benefits simply by soliciting after-the-fact medical restrictions from doctors hired by their attorneys.

For several years, the rule governing subsequent non work-related injuries in Maine was that a subsequent injury could not be used to increase the level of benefits to a disabled worker. See, Roy v. BIW, 2008 ME 94. However, in Michael Parent v. NewPage Corp. the appellate panel found that an employee who was working full time, earning his full wage at the time he suffered a totally disabling non work-related psychiatric illness was nevertheless entitled to lost time benefits on the basis of medical restrictions for a work injury that a doctor imposed on him after he was already out of work for the non work psychiatric illness. More recently in Pastula v. Lane Construction, the Appellate Division upheld a hearing officer’s finding that an employer who had been accommodating an employee without loss of income was responsible for total workers compensation benefits when that employee was no longer able to work as a result of a subsequent non work psychiatric injury.

This disturbing trend essentially makes employers and workers’ compensation insurers in Maine subsidizers of long-term disability insurance for all of their workers. Please feel free to call us for a consultation on how this and other recent developments in workers’ compensation may affect your business.

Maine Workers’ Compensation Appellate Division Addresses Statute of Limitations

In the recent case Estate of Ralph Zeitman v. WW Osborne, a widow whose petition for death benefits against five employers was dismissed on statute of limitations grounds prevailed on appeal to the Appellate Division of the Maine Workers’ Compensation Board. The widow, Ms. Zeitman, filed her petitions against the employers twelve years after the death of her husband. The employers filed a joint motion to dismiss, raising the two-year statute of limitations period on death claims. Because he was asked to decide the issue on a motion, rather than after a hearing, the hearing officer made every inference in favor of Ms. Zeitman, including assuming that she was operating under a mistake of fact as to the reason of Mr. Zeitman’s death until shortly prior to the filing of the petitions. Despite the assumption of a mistake of fact, the hearing officer found that twelve years was not a “reasonable time” within which to file petitions and granted the motion to dismiss.

The Appellate Division reversed, finding that, in the event of a mistake of fact as to the cause of death, the two year statute of limitations did not begin to run until the widow’s mistake of fact was cured. The case was remanded to the hearing officer for further proceedings consistent with the decision.

This case provides employers and insurers with some additional clarity regarding the mistake of fact exception to the statute of limitations defense. It is now clear that the limitations period does not begin to run until the mistake of fact is cured, effectively entitling the claimant to the full limitations period after she becomes aware that she has a viable claim.

Maine Workers’ Compensation Appellate Division Explains “Lent Employee” Doctrine


In a recent decision, the Appellate Division of the Maine Workers’ Compensation Board was asked to decide whether an employment relationship can exist between a “special” (or borrowing) employer and an employee where no employment relationship exists between the “general” (or lending) employer and that employee. Malpass v. Gibbons, et al. App. Div. 13-0043.  In this case, a member of a framing crew asked an independent contractor at another job site for help with lifting a wall.  During the lift, the wall fell, injuring the independent contractor.  The Appellate Division found no employment relationship between the contractor and the supposed lending employer.  Citing Torsey’s Case, 153 A. 807 (Me. 1931), the Appellate Division found that, where there is no employment relationship between a worker and his supposed lending employer, there can be no “transfer” of employment, and therefore no employment relationship can be created between the worker and the borrowing employer under the lent employee doctrine.

Maine WCB Appellate Division Limits Scope of Personal Jurisdiction


In a recent decision, the Appellate Division of the Maine Workers’ Compensation Board found that the Board had exceeded the scope of personal jurisdiction under Maine’s Long Arm statute when it agreed to decide a case involving a Massachusetts company.  The employee, a Maine resident who had traveled to Massachusetts to take a job with AGM Maine Contractors, Inc., argued that the company had sufficient contacts with Maine to reasonably have anticipated litigation there.  The purported contacts consisted of (1) a single project performed in Maine in nine years prior to the work injury, (2) language on the company’s website, holding itself out as available to do work in Maine, and (3) corporate registration in Maine.  The Appellate Division found that, based on these contacts, the company could not have reasonably anticipated litigation in Maine and vacated the Board’s decision awarding the employee benefits.

This decision may be one of several developments in personal jurisdiction law in Maine over the next several years.  We will keep an eye on this vital area of law and will provide updates when available.

What your business needs to know about Heartbleed


By now you’ve probably heard of the creatively-named “Heartbleed” bug.  Heartbleed, which has its own slick logo courtesy of the organization that discovered the bug, is a flaw in certain versions of SSL (the encryption protocal used by most websites worldwide to protect information like passwords and account names).  Disturbingly, the bug has been present for over two years, though it only recently came to light.  There’s a good chance your business has either been vulnerable itself, or has transmitted information to a vulnerable third party site within the past two years.  Here’s a helpful (but non-exhaustive) list of affected sites.

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Where Can a Corporation be Sued? Supreme Court’s Recent Decision May Signal a Change

US Supreme Court

There are venues in certain corners of the United States that exert a magnetic pull on plaintiffs’ attorneys everywhere. In Madison County, Illinois more than 800 asbestos cases are filed annually, 90% by out-of-state plaintiffs. In the Eastern District of Texas, shell “patent troll” companies rent empty offices to create “headquarters” from which to file over 1,000 patent infringement cases per year. Driven by statistics showing plaintiff-friendly judges or astronomical jury awards, plaintiffs’ lawyers travel to these venues to haul in the next big catch. But a new decision from the nation’s highest court might signal the death knell for “forum shopping.”

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