ESTATE OF GEORGE FOURNIER and DORIS FOURNIER (Appellees)
v.
WADE & SEARWAY, (Appellant)
and
RELIANCE INSURANCE COMPANY IN LIQUIDATION C/O MAINE INSURANCE GUARANTEE ASSOCIATION
Decision No. 17-13
Case No. App. Div. 15-0033
Maine Workers Compensation Decisions
State of Maine Workers Compensation Board
March 21, 2017
Argued: February 4, 2016
Attorneys for Appellant: Steven Wright, Esq. WRIGHT
& ASSOCIATES, P.A. Elizabeth J. Ernst, Esq.
DOUGLAS, DENHAM BUCCINA & ENRNST
Attorney for Appellee: James J. MacAdam, Esq. Nathan
A. Jury, Esq. Donald M. Murphy, Esq. MacADAM JURY P.A.
PANEL
MEMBERS: Administrative Law Judges Collier, Jerome, and Knopf
Collier, Administrative Law Judge
[¶1]
Wade & Searway and Reliance Insurance Company in
liquidation, c/o Maine Insurance Guaranty Association (MIGA),
appeal from a decision of a Workers' Compensation Board
administrative law judge (Goodnough, ALJ) granting
the petitions for compensation filed by Doris Fournier and
the Estate of George Fournier (collectively, "the
Estate"). Wade & Searway and MIGA contend, among
other issues, that the Estate's claims were time-barred
by the applicable version of 24-A M.R.S.A. § 4438
(2015). Because we agree with this contention, we vacate the
decision and remand with instructions to deny the petitions
as against Wade & Searway and MIGA.
I.
BACKGROUND
[¶2]
George Fournier worked as a union sheet metal worker for more
than 35 years before retiring in 1990. Mr. Fournier died on
March 12, 2010, from esophageal cancer. Following his death,
his widow, Doris Fournier, filed a number of petitions
against various employers seeking compensation. On August 14,
2012, she filed two petitions against Wade & Searway and
Reliance/MIGA: (1) a Petition for Award—Occupational
Disease Law, in her capacity as Personal Representative of
his Estate, seeking benefits for the period up to Mr.
Fournier's death; and (2) a Petition for
Award—Occupational Disease Law—Fatal, as his
widow and sole dependent, seeking death benefits pursuant to
39-A M.R.S.A. § 215 (Supp. 2016). The petitions alleged
that Mr. Fournier was injuriously exposed to asbestos while
working on a maintenance project at the International Paper
mill in Jay, Maine, from July 3 through July 5, 1984.
[¶3]
In July of 1984, Wade & Searway was insured for
workers' compensation claims by Reliance Insurance
Company. On October 3, 2001, a Pennsylvania court issued a
Liquidation Order, finding Reliance to be insolvent and
setting a deadline of December 31, 2003, for claims to be
brought against Reliance. In response to the Estate's
petitions, MIGA filed a timely Notice of Controversy (NOC)
asserting a time-bar defense, and in July of 2013 it filed a
Motion to Dismiss the petitions, arguing in part that they
were not timely filed pursuant to 24-A M.R.S.A. § 4438.
[¶4]
The ALJ denied the Motion by Order dated December 5, 2013,
and proceeded to grant the Estate's petitions, awarding
benefits as against Wade & Searway pursuant to 39-A
M.R.S.A. § 614 (2001), and denying the petitions filed
against all other employers. Wade & Searway and MIGA
filed this appeal.
II.
DISCUSSION
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