Sawyer v. S.D. Warren, 082319 MEWC, 19-30

Docket Nº:Decision 19-30
Case Date:August 23, 2019
Court:Maine
 
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ROBERT SAWYER (Appellee)
v.
S.D. WARREN (Appellant)
and
ESIS (Insurer)
Decision No. 19-30
No. App. Div. 17-0059
Maine Workers Compensation Decisions
State of Maine Workers’ Compensation Board
August 23, 2019
          Argued: June 14, 2018           Attorney for Appellant: Daniel F. Gilligan, Esq. TROUBH HEISLER           Attorneys for Appellee: James J. MacAdam, Nathan A. Jury, Esq. Donald M. Murphy, Esq. MacADAM JURY, P.A.           PANEL MEMBERS: Administrative Law Judges Goodnough, Elwin, and Pelletier           Elwin, Administrative Law Judge.          [¶1] S.D. Warren/ESIS appeals from a decision of a Workers’ Compensation Board administrative law judge (Knopf, ALJ) granting Mr. Sawyer’s Petition for Award alleging a 2004 gradual bilateral knee injury; rejecting S.D. Warren’s notice, statute of limitations, and res judicata defenses; and declining to find that benefits for this injury ran concurrently with those paid for Mr. Sawyer’s October 23, 2004, acute left knee injury. The ALJ also dismissed S.D. Warren’s Petition to Determine Extent of Permanent Impairment as unripe. S.D. Warren argues that (1) the ALJ erred in rejecting its notice and statute of limitations defenses for mistake of fact; (2) the ALJ erred in concluding that the claim was not barred by the res judicata effect of a 2007 consent decree; (3) the ALJ misapplied the law when ordering benefits to be paid for the gradual, bilateral knee injury after the maximum number of benefit payments had been made for the acute left knee injury; and (4) the ALJ erred when dismissing the Petition to Determine Extent of Permanent Impairment on ripeness grounds. We disagree with S.D. Warren’s contentions and affirm the decision.          I. BACKGROUND          [¶2] Mr. Sawyer suffered an acute left knee injury when he stepped into a gap in the floor while working for S.D. Warren on October 23, 2004. He had worked for S.D. Warren (or its predecessor) for almost twenty years prior to that date. Mr. Sawyer testified that during those early years he would regularly work eight to twelve hours on cement floors, and his work involved climbing, lifting, pushing, and pulling. A consent decree approved March 2, 2007, established the compensability of the left knee injury, but did not specify whether it was acute or gradual. That consent decree awarded ongoing benefits for partial incapacity.          [¶3] In October 2013, near the end of the period for paying partial incapacity benefits on the 2004 left knee injury, S.D. Warren filed a Petition for Review and a Petition to Determine Extent of Permanent Impairment. As part of that litigation, Dr. Bradford examined Mr. Sawyer and issued a report pursuant to 39-A M.R.S.A. § 312 (Supp. 2018). That report included a medical finding that Mr. Sawyer’s work for S.D. Warren since 1986 had contributed to a gradual bilateral knee injury as of 2004.          [¶4] In an August 28, 2015, decree, the hearing officer (Greene, HO) concluded that the 2007 consent decree addressed only the compensability of the acute injury to Mr. Sawyer’s left knee. Although he concluded that the compensability of a gradual bilateral knee injury was beyond the scope of the petitions pending at that time, the hearing officer invited Mr. Sawyer to file a new petition alleging a gradual bilateral knee injury subject to defenses of notice, statute of limitations, and res judicata. The hearing officer disposed of S.D. Warren’s 2013 petitions by authorizing discontinuance of benefits for the 2004 acute left knee injury because the effects of the injury had ended, or alternatively because the durational limit for that injury had passed.          [¶5] Mr. Sawyer subsequently filed a Petition for Award, and S.D. Warren filed Petitions for Award and to Determine Extent of Permanent Impairment, all alleging a gradual bilateral knee injury on the same date as the acute left knee injury. The ALJ determined, in the 2017 decree, that res judicata did not bar Mr. Sawyer’s petition, giving alternative reasons:
In his decision of 2015 . . . the hearing officer specifically determined that the 2007 consent decree addressed only a traumatic left knee injury. The 2015 decree settles this issue: only the traumatic left knee injury was “adjudicated” in the earlier litigation. Moreover, even if it did not, the board finds that the description of injury in the 2006 petition did not include a gradual bilateral knee injury. Although there is some support (the affidavit attached to the petition) that in 2006 Mr. Sawyer was alleging a gradual left knee injury, there was no claim involving his right knee until 2015. The reference to “related bodily parts” does not include a separate injury affecting his right knee, which the board finds to be a wholly separate bodily part, unrelated to Mr. Sawyer’s left knee and, based on Dr. Bradford’s assessment, the injury thereto.
         The ALJ further determined that neither the statute of limitations nor the notice provision barred his claim because Mr. Sawyer was under a mistake of fact regarding the cause and nature of the gradual injury until he received Dr. Bradford’s section 312 report.          [¶6] Despite finding that Mr. Sawyer’s gradual bilateral knee injury had contributed to his incapacity since 2004, the ALJ determined that payments of incapacity benefits for this injury did not retrospectively run concurrently with payments S.D. Warren previously had made for the acute left knee injury, citing Oleson v. International Paper, Me. W.C.B. No. 14-29 (App. Div. 2014). Because partial incapacity payments for the gradual bilateral injury had commenced only in 2015 (upon expiration of the 520-week cap for the acute left knee injury), the ALJ...

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