Lorraine Somers v. S.D. Warren Company , 2020 ME 137 ( 2020 )


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  • MAINE SUPREME JUDICIAL COURT                                                        Reporter of Decisions
    Decision: 
    2020 ME 137
    Docket:   WCB-20-60
    Argued:   September 16, 2020
    Decided:  December 15, 2020
    Panel:        MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.
    LORRAINE SOMERS
    v.
    S.D. WARREN COMPANY et al.
    MEAD, J.
    [¶1] In December 2014, the Workers’ Compensation Board (Elwin, HO)1
    entered a decree permitting S.D. Warren Company and its insurer, Constitution
    State Services (collectively S.D. Warren), to discontinue paying Lorraine
    Somers partial incapacity benefits because those payments had reached a
    520-week statutory limit. See 39-A M.R.S. § 213(1)(A), (4) (2014).2
    [¶2] Somers petitioned to have her benefits reinstated, asserting that
    S.D. Warren had failed to comply with Me. W.C.B. Rule, ch. 2, § 5(1) (2017) (“the
    1 Before October 15, 2015, Administrative Law Judges deciding workers’ compensation cases
    were known as Hearing Officers. See P.L. 2015, ch. 297 (effective Oct. 15, 2015).
    2  The statute has since been amended, but not in a way that affects this appeal. P.L. 2015, ch. 297,
    § 8 (effective Oct. 15, 2015); P.L. 2017, ch. 288, § A-50 (effective July 15, 2017) (codified at 39-A M.R.S.
    § 213(1)(A), (4) (2020)).
    2
    former Rule”)3 by not providing her, before it ceased making payments, with
    notice that she could be eligible for an extension of weekly benefits. Although
    an Administrative Law Judge (Elwin, ALJ) denied the petition for reinstatement
    of benefits, the Workers’ Compensation Board Appellate Division vacated that
    decision after Somers appealed.
    [¶3] The Appellate Division concluded that the notice requirement of the
    former Rule was applicable to Somers’s petition and that, because S.D. Warren
    admitted that it had not sent the notice, it was required to pay Somers all
    benefits owed to her from the date they were discontinued pursuant to the
    2014 decree. The Appellate Division further concluded that the decree did not
    impose a res judicata bar on Somers’s petition. On S.D. Warren’s appeal from
    the decision of the Appellate Division, we affirm.
    I. BACKGROUND
    [¶4] In December 2000, Somers suffered a right knee injury while
    working for S.D. Warren. She returned to work in a work-hardening capacity
    3The Rule was amended on September 1, 2018, by adding subsection 1-A, which shifts the burden
    to provide notice from the employer to the Board in cases where an order of compensation has been
    entered. See Me. W.C.B. Rule, ch. 2, § 5(1)-(1-A) (2020). Accordingly, the principal legal issue in this
    case will not recur in petitions filed after the amendment took effect. The version of the rule
    applicable to Somers’s petition, Me. W.C.B. Rule, ch. 2, § 5(1) (2017), is referred to in this opinion as
    “the former Rule.” The former Rule was virtually unchanged during the twenty years from its
    adoption in 1998 to its 2018 amendment.
    3
    in October 2001 and resumed her regular job in December 2001. After her
    symptoms worsened, she went out of work in March 2005 and was terminated
    two years later.
    [¶5] In a July 2008 decree, the Workers’ Compensation Board found that
    the injury Somers sustained in 2000 was compensable and that she was entitled
    to ongoing 100 percent partial incapacity benefits. In March 2013, S.D. Warren
    filed a petition for review seeking to discontinue benefits on the ground that
    Somers’s entitlement to them had ended pursuant to a 520-week statutory cap.
    See 39-A M.R.S. § 213(1)(A), (4). The Board found in its December 2014 decree
    that 520 weeks of benefits had been paid and that Somers’s permanent
    impairment level fell below the 11.8 percent threshold established by
    Me. W.C.B. Rule, ch. 2, § 1(1) (2014), and therefore S.D. Warren was entitled to
    discontinue payment of benefits, see 39-A M.R.S. §§ 205(9)(B)(2), 213(1)(A),
    (4) (2014).
    [¶6] In May 2015, Somers filed a petition for reinstatement of benefits,
    see 39-A M.R.S. § 205(9)(C) (2020), arguing that S.D. Warren had failed to send
    the notice required by the former Rule and that she was entitled to continuing
    4
    benefits until the company did so.4 The version of the Rule in effect at the time
    provided,
    Prior to cessation of benefits pursuant to 39-A M.R.S.A. § 213(1),
    the employer must notify the employee that the employee’s lost
    time benefits are due to expire. The notice must be sent at least
    21 days in advance of the expiration date, and must include the
    date the lost time benefits are due to expire and the following
    paragraph:
    If you are experiencing extreme financial hardship due
    to inability to return to gainful employment, you may
    be eligible for an extension of your weekly benefits. To
    request such an extension, you must file a Petition for
    Extension of Benefits within 30 calendar days of the
    date that benefits expire, or, in cases where the
    expiration date is contested, within 30 calendar days of
    a final decree as to the expiration date.
    Failure to send the required notice will automatically extend the
    employee’s entitlement to lost time benefits for the period that the
    notice was not sent.
    Notice shall be considered “sent” if it is mailed to the last address
    to which a compensation check was sent.
    Me. W.C.B. Rule, ch. 2, § 5(1) (2017).
    [¶7] In a 2017 decision denying Somers’s petition, the Board (Elwin, ALJ)
    construed the former Rule as applying solely to cases in which an employer
    seeks a “prospective” discontinuation of benefits, rather than in cases where, as
    4The parties stipulated that S.D. Warren had not issued a notice of Somers’s right to request an
    extension of benefits for extreme financial hardship pursuant to the former Rule.
    5
    here, a Board decree allows “immediate” discontinuation of benefits. Somers
    moved for further findings. See 39-A M.R.S. § 318 (2020). When her motion
    was denied, Somers appealed to the Appellate Division. See 39-A M.R.S. § 321-B
    (2020).
    [¶8]   In January 2020, the Appellate Division vacated the decision,
    construing the plain language of the former Rule to require the prescribed
    notice before S.D. Warren could terminate Somers’s benefits. The Appellate
    Division further concluded that the former Rule did not exceed the Board’s
    rulemaking authority and that Somers’s notice argument was not barred by
    res judicata. We granted S.D. Warren’s petition for appellate review. See
    39-A M.R.S. § 322(3) (2020); M.R. App. P. 23.
    II. DISCUSSION
    A.    Res Judicata
    [¶9] S.D. Warren contends that because Somers did not claim a lack of
    notice when contesting the company’s 2013 petition seeking to terminate her
    benefits, the res judicata doctrine barred her from doing so when she sought to
    reinstate her benefits following the Board’s 2014 decree.       The Appellate
    Division disagreed, concluding that “[b]ecause S.D. Warren did not cease paying
    benefits until after the 2014 decree, the factual issue of whether notice was
    6
    provided to Ms. Somers was not before the board during that litigation.” We
    review de novo the Appellate Division’s determination that res judicata did not
    bar Somers’s petition to reinstate her benefits. See Portland Water Dist. v. Town
    of Standish, 
    2008 ME 23
    , ¶ 7, 
    940 A.2d 1097
    .
    [¶10] “[V]alid and final decisions of the Workers’ Compensation Board
    are subject to the general rules of res judicata . . . .” Bailey v. City of Lewiston,
    
    2017 ME 160
    , ¶ 10, 
    168 A.3d 762
     (quotation marks omitted). The claim
    preclusion branch of res judicata “forecloses relitigation of claims only when
    (1) the same parties or their privies are involved in both actions; (2) a valid
    final judgment was entered in the prior action; and (3) the matters presented
    for decision in the second action were, or might have been, litigated in the first
    action.” Berry v. MaineStream Fin., 
    2019 ME 27
    , ¶ 8, 
    202 A.3d 1195
     (quotation
    marks omitted). It is the third element that is at issue here.
    [¶11]    We agree with the Appellate Division’s determination that
    res judicata does not bar Somers’s petition for reinstatement of her benefits
    because, prior to the decree allowing S.D. Warren to discontinue paying
    benefits, she could not have known that the company would fail to send the
    notice required by the former Rule. See 39-A M.R.S. § 205(9)(B)(2) (providing
    that an employer “may not reduce or discontinue benefits until the matter has
    7
    been resolved by a decree issued by an administrative law judge”). S.D. Warren
    was not required to send the notice prospectively—although it could have done
    so and avoided much of the obligation that the Appellate Division ultimately
    ordered it to pay5—and so, as the Appellate Division determined, the company
    “did not violate the [former Rule] until it ceased paying benefits.” Accordingly,
    the notice issue was not before the Board in the 2013 action, and thus was not
    barred by res judicata in Somers’s appeal to the Appellate Division. See Berry,
    
    2019 ME 27
    , ¶ 8, 
    202 A.3d 1195
    .
    B.       Application of the Former Rule
    [¶12] S.D. Warren next contends that the Appellate Division erred in
    concluding that the former Rule applied to require notice in a case like
    Somers’s, that is, after the Board had issued a decree allowing an employer to
    terminate benefits, because that construction is in conflict with (1) an
    employer’s statutory right to discontinue benefits immediately upon issuance
    of the decree and (2) the presumptive 520-week limit on benefits for an injured
    worker at Somers’s level of incapacity. See 39-A M.R.S. §§ 205(9)(B)(2),
    213(1)(A), (4).
    At oral argument, Somers reported that S.D. Warren sent the notice required by the former Rule
    5
    after the Appellate Division issued its decision.
    8
    [¶13] We disagree. On questions of law6 we review the decision of the
    Appellate Division directly and deferentially, “afford[ing] appropriate
    deference to the Appellate Division’s reasonable interpretation of the workers’
    compensation statute and . . . uphold[ing] the Appellate Division’s
    interpretation unless the plain language of the statute and its legislative history
    compel a contrary result.” Bailey, 
    2017 ME 160
    , ¶ 9, 
    168 A.3d 762
     (citation and
    quotation marks omitted); see Bridgeman v. S.D. Warren Co., 
    2005 ME 38
    , ¶ 11,
    
    872 A.2d 961
     (“We give great deference to Board rules interpreting the Act, and
    we have encouraged the Board to enact rules to fill in the ‘gray areas’ that were
    intentionally left in the Act.”).
    [¶14] S.D. Warren’s burden is thus a significant one. In Bailey, we cited
    Kroeger v. Department of Environmental Protection, 
    2005 ME 50
    , ¶ 7,
    
    870 A.2d 566
    , for the proposition that “we will only vacate an agency’s decision
    where that decision violates the Constitution or statutes; exceeds the agency’s
    authority; is procedurally unlawful; is arbitrary or capricious; constitutes an
    abuse of discretion; or is affected by bias or an error of law.” 
    2017 ME 160
    , ¶ 9,
    
    168 A.3d 762
     (alteration and quotation marks omitted).
    A hearing officer’s or ALJ’s findings of fact are final, absent fraud. 39-A M.R.S. §§ 318, 322(3)
    6
    (2020).
    9
    [¶15] No such error is present here. The plain language of 39-A M.R.S.
    § 205(9)(B)(2) does not give an employer an automatic right to immediately
    cease paying benefits without giving notice to the employee as required by the
    former Rule. The statute provides that
    [i]f an order or award of compensation or compensation scheme
    has been entered, the employer . . . shall petition the board for an
    order to reduce or discontinue benefits and may not reduce or
    discontinue benefits until the matter has been resolved by a decree
    issued by an administrative law judge.
    39-A M.R.S. § 205(9)(B)(2). The statute thus directs that an employer may not
    cease paying benefits to an employee before the Board issues a decree; it does
    not, however, say that the issuance of a decree is the sole requirement for
    discontinuing benefits. Although the statute allows an employer to “reduce or
    discontinue benefits . . . pending a motion for findings of fact and conclusions of
    law or pending an appeal from [the] decree,” id., it does not bar the Board from
    imposing other requirements on the termination of benefits that are not
    addressed in the statute but are consistent with it. The former Rule imposes
    just such a requirement.
    [¶16] Section 205(9)(B)(2) must be read in conjunction with section
    213, which provides that, for workers with Somers’s level of incapacity,
    10
    an employee is not eligible to receive compensation . . . after the
    employee has received a total of 260 weeks[7] of compensation . . . .
    The board may in the exercise of its discretion extend the duration of
    benefit entitlement beyond 260 weeks in cases involving extreme
    financial hardship due to inability to return to gainful employment.
    39-A M.R.S. § 213(1)(A) (emphasis added); see 20 Thames St. LLC v. Ocean State
    Job Lot of Me. 2017, LLC, 
    2020 ME 55
    , ¶ 8, 
    231 A.3d 426
     (“We interpret the
    statute in the context of the entire statutory scheme . . . .”). Section 213(1)(A)
    explicitly gives the Board the broad discretion to determine when the “extreme
    financial hardship” exception to the presumptive cap applies; that discretion
    includes the latitude to establish notice requirements. The Board’s authority to
    extend benefit payments, reflected in the language of the notice required by the
    former Rule—“[i]f you are experiencing extreme financial hardship . . . you may
    be eligible for an extension of your weekly benefits,” Me. W.C.B. Rule, ch. 2,
    § 5(1) (2017)—exists whether the employer seeks to end benefits through a
    certificate sent to the employee or by Board decree.                          See 39-A M.R.S.
    § 213(1)(A).
    [¶17] Furthermore, contrary to S.D. Warren’s contention, the former
    Rule does not, as applied in this case, “expressly mandate[] that the durational
    7 Although the statute presumptively limits benefits to 260 weeks, under specified conditions the
    presumptive limit may be extended to a maximum of 520 weeks. 39-A M.R.S. § 213(4) (2020); see
    Buckley v. S.D. Warren Co., 
    2010 ME 53
    , ¶ 9 & n.4, 
    997 A.2d 747
    .
    11
    cap is extended beyond the defined eligibility limit set by the Legislature.”
    Rather, the Rule was adopted pursuant to the Board’s discretion to fill in the
    “gray area[]” intentionally left in section 213(1)(A)’s exception for extreme
    financial hardship, which provides that “[t]he board may in the exercise of its
    discretion extend the duration of benefit entitlement.” 39-A M.R.S. § 213(1)(A)
    (emphasis added); see Johnson v. Home Depot USA, Inc., 
    2014 ME 140
    , ¶ 10,
    
    106 A.3d 401
     (“We have recognized . . . that, subject to concrete statutory
    requirements, there are ‘gray areas’ in the Workers’ Compensation Act that the
    Legislature knew would require ‘flexible and realistic solutions.’” (quoting
    Bridgeman, 
    2005 ME 38
    , ¶ 11, 
    872 A.2d 961
    )). The Board’s broad discretion
    extends to requiring that notice of the hardship exception be given to the
    employee.    As we said in discussing another section of the Workers’
    Compensation Act, “notice provisions . . . would be rendered meaningless if the
    employee’s rights were cut off before receiving notice of those rights.” Graves
    v. Brockway-Smith Co., 
    2012 ME 128
    , ¶ 18, 
    55 A.3d 456
    .
    [¶18] Our jurisprudence and the decisions of the Board support our
    conclusion that S.D. Warren was required to give Somers notice pursuant to the
    former Rule before terminating her benefits. In Bridgeman we upheld a rule
    that attached a greater penalty than that specified by statute to an employer’s
    12
    failure to file a notice of controversy within fourteen days of the employee’s
    notice of a claim. 
    2005 ME 38
    , ¶¶ 2-3, 12, 15, 
    872 A.2d 961
    . The rule at issue
    in Bridgeman imposed the same penalty on the employer as does the former
    Rule at issue in this case—an automatic continuation of benefits until the
    employer’s compliance with a notice requirement. Id. ¶ 7; see Me. W.C.B. Rule,
    ch. 2, § 5(1) (2017). We concluded that the rule’s imposition of a greater
    penalty than the statute “[did] not compel a conclusion that the Board exceeded
    its authority in promulgating [the rule] to implement the statute and carry out
    the purposes of the Act.” Bridgeman, 
    2005 ME 38
    , ¶ 15, 
    872 A.2d 961
    .
    [¶19]    Additionally, during the twenty years that the former Rule
    remained essentially unchanged following its enactment, see supra n.3, the
    Board released a number of decisions that predicted the Appellate Division’s
    interpretation—some against S.D. Warren. See Waters v. Sappi Fine Paper,
    W.C.B. 99-01-98-48 (Me. 2017) (Jerome, ALJ) (“Whether benefits are being paid
    voluntarily or by Board order, benefits will be ‘due to expire’ after the 30 day
    notice period required by [the former Rule] . . . .”); Bridgeman v. S.D. Warren Co.,
    W.C.B. 98-019729 (Me. 2016) (Collier, ALJ) (concluding that sections
    205(9)(B)(2) and 213(1) were not mutually exclusive as S.D. Warren suggested
    and that the notice rule was applicable); Smith v. Cummings Health Care,
    13
    W.C.B. 00-00-53-14 (Me. 2008) (Pelletier, HO) (“[The Rule] requires that the
    notice with the required language be sent to the employee before benefits
    actually cease, whether or not the expiration date is set by the insurer or by
    Board decree.”).8
    [¶20] S.D. Warren does not cite any decision apart from the ALJ’s
    decision in this case to establish that the Appellate Division’s interpretation
    here is inconsistent with longstanding Board practice. To the contrary, when
    the Rule was amended in 2018, the Board made it explicit that notice
    concerning an employee’s right to request an extension of benefits based on
    extreme financial hardship must be given to the employee when a Board order
    has been entered. Me. W.C.B. Rule, ch. 2, § 5(1-A) (2000). Although the current
    rule provides that the notice must be included in the decree itself, as opposed
    to being sent by the employer, id., if S.D. Warren’s argument—asserting “the
    fallacy that in litigated cases the financial hardship extension notification is
    necessary”—were correct, then notice would not be required at all.
    [¶21] Finally, as we have noted, see supra ¶ 11, S.D. Warren could have
    satisfied the former Rule’s requirement that it notify Somers that her benefits
    were “due to expire,” Me. W.C.B. Rule, ch. 2, § 5(1) (2017), by applying basic
    8 See also Adams v. Presque Isle Nursing Home, W.C.B. 95-017695H (Me. 2008) (Pelletier, HO);
    Chaput v. Adecco N. Am., LLC, W.C.B. 01-017391 (Me. 2007) (Goodnough, HO).
    14
    math and sending the notice twenty-one days before reaching the presumptive
    520-week benefit limit. We reject S.D. Warren’s argument that it could not
    know the exact date the Board would enter its decree and so could not know
    when it should send Somers’s notice—the former Rule requires notice “at least
    21 days in advance of the expiration date,” Me. W.C.B. Rule, ch. 2, § 5(1) (2017)
    (emphasis added), not exactly twenty-one days in advance. S.D. Warren always
    knew when Somers’s benefits could be terminated—at 520 weeks—and by
    referencing that date and sending notice twenty-one days in advance of it
    (or before), the company could have satisfied the former Rule and protected
    itself against the judgment about which it now complains, regardless of when
    the Board’s decree was actually entered. Had S.D. Warren done so, Somers
    would have known exactly when her petition for an extension of benefits was
    due: “within 30 calendar days of the date that benefits expire, or, in cases where
    the expiration date is contested, within 30 calendar days of a final decree as to
    the expiration date.” Me. W.C.B. Rule, ch. 2, § 5(1) (2017).
    [¶22] In sum, affording the Appellate Division’s decision appropriate
    deference, we discern no error. See Bailey, 
    2017 ME 160
    , ¶ 9, 
    168 A.3d 762
    ;
    Johnson, 
    2014 ME 140
    , ¶ 10, 
    106 A.3d 401
    ; Bridgeman, 
    2005 ME 38
    , ¶ 11,
    
    872 A.2d 961
    .
    15
    The entry is:
    The decision of the Workers’ Compensation
    Board Appellate Division is affirmed.
    Daniel F. Gilligan, Esq. (orally), Troubh Heisler LLC, Portland, for appellants S.D.
    Warren Company and Constitution State Services
    James J. MacAdam, Esq. (orally), Nathan A. Jury, Esq., and Donald M. Murphy,
    Esq., MacAdam Jury, P.A., Freeport, for appellee Lorraine Somers
    Robert W. Bower, Jr., Esq., and David A. Goldman, Esq., Norman Hanson &
    DeTroy, LLC, Portland, for amici curiae Maine Workers’ Compensation
    Coordinating Council and Maine Council of Self-Insurers
    Workers Compensation Board Appellate Division docket number 17-0022
    FOR CLERK REFERENCE ONLY