ESTATE OF TIMOTHY J. FLAHERTY (Appellee)
v.
CITY OF PORTLAND (Appellant)
and
MAINE MUNICIPAL ASSOCIATION (Insurer)
Decision No. 19-31
No. App. Div. 17-0031
Maine Workers Compensation Decisions
State of Maine Workers’ Compensation Board
August 23, 2019
Argument held: April 12, 2018
PANEL
MEMBERS: Administrative Law Judges Pelletier, Collier, and
Goodnough
Attorney for Appellant: Stephen Hessert, Esq. NORMAN HANSON
& DeTROY Two Canal Plaza
Attorney for Appellee: James J. MacAdam, Esq. Nathan A. Jury,
Esq. Donald M. Murphy, Esq MacADAM JURY, PA
Collier, Administrative Law Judge
[¶1]
The City of Portland appeals from a decision of a
Workers’ Compensation Board administrative law judge
(Jerome, ALJ) awarding benefits to Theresa Flaherty,
the widow of Timothy Flaherty, pursuant to 39-A M.R.S.A.
§ 215 (Supp. 2018). The City contends that the ALJ erred
by concluding that Ms. Flaherty’s petition was not
barred by the statute of limitations and notice provisions of
the Act, and by determining that Mr. Flaherty’s
development of cancer constituted a “personal
injury” under the Act, rather than an occupational
disease. We disagree with the City’s contentions, and
affirm the decision.
I.
BACKGROUND
[¶2]
Timothy Flaherty worked for the Portland Fire Department for
nearly 33 years. During his career, he was exposed to many
different types of fires that produced smoke, dust, and fumes
from a wide variety of substances. Mr. Flaherty began his
firefighting career in 1972, when the use of respirators was
not common in firefighting. Although in the 1990s the City
began to require that firefighters use respirators when
actively fighting fires, they generally did not wear them
during the overhaul stage, after the active fire had been
knocked down. Mr. Flaherty also worked inside the firehouse
repairing small engines, painting, and other tasks. He
routinely used solvents and kerosene while performing these
duties but did not wear a respirator. The ALJ specifically
found that Mr. Flaherty had been exposed to benzene, among
other chemicals, during his firefighting career.
[¶3]
In August of 2004 Mr. Flaherty was diagnosed with
myelofibrosis, a rare bone marrow cancer. He retired from the
Portland Fire Department on February 28, 2005. In addition to
firefighting, Mr. Flaherty had a part-time, side business
painting houses that he continued, sporadically, after he
retired. Unfortunately, however, his condition progressively
worsened, and he died due to myelofibrosis on August 30,
2011.
[¶4]
Throughout Mr. Flaherty’s battle with myelofibrosis
neither he nor his wife Theresa knew what caused his cancer.
The Flahertys had asked his doctors what caused the disease
and were told that the cause was unknown. On June 19, 2012,
Theresa saw a television news broadcast about cancer rates
among firefighters. She then spoke with the president of the
firefighters’ union and learned that there may be a
potential connection between Mr. Flaherty’s work as a
firefighter and his cancer. This led her to consult a lawyer
in late June or early July of 2012.
[¶5]
Theresa Flaherty filed two Petitions for
Award—Occupational Disease Law in September of 2012.
See 39-A M.R.S.A. §§ 601-615 (2001 &
Supp. 2018). One petition was filed in her role as the
personal representative of the Estate, and the other as a
dependent of Mr. Flaherty. With the former she sought
benefits on Mr. Flaherty’s behalf for the time between
his retirement and his death, and with the latter she sought
death benefits on her own behalf. By Order dated February 2,
2014, the ALJ allowed Ms. Flaherty to amend the Petitions to
include claims under the non-occupational disease provisions
of the Workers’ Compensation Act.
[¶6]
The ALJ decided that Ms. Flaherty had not shown that
myelofibrosis is a disease characteristic of the firefighting
occupation, so she denied the claims under the Occupational
Disease Act. See 39-A M.R.S.A. § 603
(“[T]he term ‘occupational disease’ means
only a disease that is due to causes and conditions
characteristic of a particular trade, occupation, process or
employment and that arises out of and in the course of
employment.”).
[¶7]
As to the claims under the non-occupational disease
provisions of the Act, the ALJ concluded that Mr.
Flaherty’s myelofibrosis could constitute a personal
injury within the meaning of 39-A M.R.S.A. § 201 (2001),
even if it was not an occupational disease pursuant to
sections 602 and 603. She further concluded that the
evidentiary presumption that applies when an employee has
been killed or is unable to testify applies to these claims,
see 39-A M.R.S.A. § 327 (2001).[1] The ALJ also
concluded that the petitions were not barred by...
