Lister v. Roland's Service, Inc.

1997 ME 23, 690 A.2d 491, 1997 Me. LEXIS 24
CourtSupreme Judicial Court of Maine
DecidedFebruary 12, 1997
StatusPublished
Cited by1 cases

This text of 1997 ME 23 (Lister v. Roland's Service, Inc.) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lister v. Roland's Service, Inc., 1997 ME 23, 690 A.2d 491, 1997 Me. LEXIS 24 (Me. 1997).

Opinion

LIPEZ, Justice.

[¶ 1] The employee, Terry W. Lister, appeals from a decision of the Workers’ Compensation Board denying his petitions for award and fix related to an April 27, 1987 low-back injury. The injury occurred while his employer, Roland’s Services, was insured by Hanover of Maine. The Board concluded that Lister’s petitions relating to the April 1987 injury were barred by the statute of limitations. 39 M.R.SA. § 95 (Supp.1992).1 The Board also denied Lister’s motion for findings of fact and we granted his petition for appellate review pursuant to 39-A M.R.S.A § 322 (Supp.1996). We conclude as a matter of law that the employer failed to meet its burden of proof to show that Lister’s petitions were time-barred for his April 27, 1987 injury, and therefore we vacate the Board’s decision with respect to that injury.

[¶ 2] At the date of Lister’s petition for award in 1992, section 95 provided, in pertinent part:

Any employee’s claim for compensation under this Act is barred unless an agreement or a petition as provided in Section 94 is filed within 2 years after the date of the injury, or, if the employee is paid by the employer or the insurer, without the filing of any petition or agreement, within 2 years of any payment by such employer or insurer for benefits otherwise required by this Act. The 2-year period in which an employee may file a claim does not begin to run until the employee’s employer, if the employer has actual knowledge of the inju[492]*492ry, files a first report of injury as required by section 106 of the Act.... No petition of any kind may be filed more than 6 years following the date of the latest payment made under this Act. For the purposes of this section, payments of benefits made by an employer or insurer pursuant to section 51-B or 52 are considered payments under a decision pursuant to a petition, unless a timely notice of controversy has been filed.

39 M.R.SA.. § 95 (Supp.1992) (emphasis added).2

[¶ 3] As originally enacted in 1983, the last sentence of section 95 provided that “[f]or the purposes of this section, payments of benefits made by an employer or insurer pursuant to section 51-B shall be considered payments under a decision unless a timely notice of controversy has been filed.” P.L. 1983, ch. 587, § 1. In 1989 the Legislature amended the last sentence of section 95 to provide that “payments of benefits made by an employer or insurer pursuant to section 51-B or 52 are considered payments under a decision pursuant to a petition unless a timely notice of controversy has been filed.” P.L. 1989, ch. 256, § 4 (effective September 30, 1989) (emphasis added). Lister contends that, pursuant to the last sentence of section 95, the payment of chiropractic treatment following the April 1987 injury constituted a “payment of benefits made by an employer or insurer pursuant to section 51-B or 52” and therefore must be “considered payments under a decision pursuant to a petition” obviating the two-year statute of limitations. Rutter v. Allstate Auto. Ins. Co., 655 A.2d 1258, 1259-60 (Me.1995); Danforth v. L.L. Bean, Inc., 624 A.2d 1231, 1232 (Me.1993); Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814, 816 (Me.1980). We agree that Lister is entitled to the protection of the 1989 amendment as long as his claim had not been extinguished at the time of the effective date of that amendment. See P.L.1989, ch. 256, § 4 (effective September 30, 1989). Because the effective date of the 1989 amendment occurred later than two years after the April 27, 1987 injury, Lister must have received payment of medical expenses for that injury prior to April 27,1989 in order to satisfy the two-year statute.

[¶ 4] The Board found that Lister received chiropractic treatment for the April 1987 injury in May 1987. There is also evidence suggesting that the chiropractor had been paid for all services provided until August 1989, including the chiropractic treatment provided in May 1987. Hanover contends that payment for the May 1987 treatment was made by New Hampshire Insurance Co., a previous workers’ compensation insurer. As Hanover states in its brief, “[a] review of [the chiropractor’s] deposition ... makes it clear that the insurer that paid his bill was ... New Hampshire ... and not Hanover” and the “affirmative evidence is that the New Hampshire ... payment of [the chiropractor’s] bill was the only payment made on the record_” Hanover contends, however, that despite the evidence that Lister’s medical expenses for the April 27,-1987 injury had been paid, payments by a previous insurer cannot toll the statute of limitations for a claim against Hanover. Pottle v. Bath Iron Works Corp., 551 A.2d 112 (Me.1988). We disagree.

[¶ 5] In Pottle, we held that a subsequent insurer’s payments for a 1982 left-knee injury did not toll the statute of limitations against a previous insurer at risk for a prior left-knee injury. 551 A.2d at 114. We stated that “[t]he fact alone of [the subsequent insurer’s] payment on account of the 1982 injury did not put [the previous insurer or employer] on any kind of notice of a claim by the employee for the 1980 injury.” Id. We addressed a similar issue in a more recent decision, Elimos v. Great No. Paper Co., 582 A.2d 256, 258-59 (Me.1990). In that case, the employee suffered a work-injury to his right knee while his employer, Great Northern, was insured, by Commercial Union, and a subsequent injury to the same knee while [493]*493Great Northern was self-insured. Id. at 257. Commercial Union argued on appeal that payment by Great Northern while self-insured did not toll the ten-year statute against Commercial Union for the prior injury. Id. We held that payment by a subsequent insurer may toll the ten-year statute if payments were made “with contemporaneous notice that they were made for treatment that was in part necessitated by the” previous injury and we remanded the case for further findings on the issue of notice. Id. at 258-59. We emphasized that the employee need only show that the employer had notice that payments were necessitated in part by the prior injury, not that the previous insurer received notice of the payments:

Even if Commercial Union shows that it did not know that Great Northern had paid travel expenses with notice that they were in part required by the 1974 injury, that fact does not absolve Commercial Union from its responsibility for covering Great Northern’s liability_ Although Commercial Union has an interest in avoiding stale claims, any quarrel it may have for not being informed of the fact, if it be the fact, that Great Northern made the 1983 travel payments with notice they related in part to the 1974 injury, should be with its insured, Great Northern, and not with the employee.

Id. at 259.

[¶ 6] The facts in this case are distinguishable from the facts of Pottle and Klimas. In this case, Lister suffered an injury to his shoulder and upper back in 1984 while New Hampshire was the insurer.

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Bluebook (online)
1997 ME 23, 690 A.2d 491, 1997 Me. LEXIS 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lister-v-rolands-service-inc-me-1997.