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...
