Estate of Flaherty v. City of Portland, 082319 MEWC, 19-31

Docket Nº:Decision 19-31
Case Date:August 23, 2019
Court:Maine
 
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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...

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