Lamonica v. Holmes , 1998 Me. 190 ( 1998 )

WATHEN, Chief Justice.

[¶ 1] The employer, Ladd Holmes, appeals from a decision of the Workers’ Compensation Board granting the employee’s petition for restoration related to a 1977 injury. Although the employee suffered a subsequent injury in 1995 while employed by a second employer, the Board concluded that the subsequent injury was nonwork-related because the employee failed to give timely notice of that injury to preserve his workers’ compensation claim against his second employer, 39-A M.R.S.A. § 301 (Supp.1997). Ladd Holmes contends that the employee’s 1995 injury should have been treated as a subsequent work-related injury and that its liability should be reduced by the contribution of the second injury to the employee’s resulting incapacity. We affirm.

[¶ 2] The employee, Paul R. Lamonica, suffered a work-related injury on June 9, 1977, while employed by Ladd Holmes, and a subsequent injury on March 3, 1995, while employed by the Town of Skowhegan. Lamonica filed petitions with the Board for benefits related to both injuries. The Board granted Lamonica’s petitions for the 1977 injury, but denied his petition for award related to the 1995 injury because he failed to provide timely notice of his injury to the Town of Skowhegan. 39-A M.R.S.A. § 301 (“Proceedings for compensation under this Act, except as provided, may not be maintained unless a notice of the injury is given within 90 days after the date of injury.”). The Board concluded further that, because the 1995 injury is not compensable, it must be treated as a nonwork-injury for purposes of determining the liability of Ladd Holmes. Applying 39-A M.R.S.A. § 201(5),¹ the applicable provision when a work-injury combines with a subsequent nonwork-injury, the Board concluded that the 1995 injury was “causally connected” to the 1977 injury and, therefore, Ladd Holmes is fully liable for Lamonica’s subsequent disability. See Mushero v. Lincoln Pulp & Paper Co., 683 A.2d 504, 506 (Me.1996). We granted the employer’s petition for appellate review pursuant to 39-A M.R.S.A § 322 (Supp.1997).

[¶ 3] Ladd Holmes contends that, as a matter of common usage, the 1995 injury was a work-related injury because it arose out of and in the course of his employment with the Town of Skowhegan. Furthermore, because the 1995 injury was a subsequent work-injury, Ladd Holmes contends that it is entitled to an apportionment. As we have stated, however, “ ‘the law of workers’ compensation is uniquely statutory.’ ” Beaulieu v. Maine Med. Ctr., 675 A.2d 110, 111-12 (Me.1996) (quoting Wentzell v. Timberlands, Inc., 412 A.2d 1213, 1215 (Me.1980)). The basic entitlement to workers’ compensation benefits under the Act, 39-A M.R.S.A. § 201(1) (Supp.1997), expressly defines a compensable injury with reference to the notice-of-injury provision set forth in 39-A M.R.S.A. § 301. For purposes of the Act, an injury is not “work-related” if the employee does not provide notice of the injury. Because this appeal involves a work-injury and a subsequent nonwork-injury, the controlling statutory provision is 39-A M.R.S.A. § 201(5).

[¶ 4] Even if we considered the 1995 injury as work-related, that would not alter our decision concerning an apportionment. The applicable statute when an employee suffers more than one work-injury is section 354, providing, in pertinent part:

1.Applicability. When 2 or more occupational injuries occur, during either a single employment or successive employments, that combine to produce a single incapacitating condition and more than one insurer is responsible for that condition, liability is governed by this section.

2. Liability to employee. If an employee has sustained more than one injury while employed by different employers, or if an employee has sustained more than one injury while employed by the same employer and that employer was insured by one insurer when the first injury occurred and insured by another insurer when the subsequent injury or injuries occurred, the insurer providing coverage at the time of the last injury shall initially be responsible to the employee for all benefits payable under this Act.

3. Subrogation. Any insurer determined to be liable for benefits under subsection 2 must be subrogated to the employee’s rights under this Act for all benefits the insurer has paid and for which another insurer may be liable. Any such insurer may, in accordance with the rules adopted by the Superintendent of Insurance, file a request for appointment of an arbitrator to determine apportionment of liability among responsible insurers. ... Arbitration pursuant to this subsection is the exclusive means for resolving apportionment disputes among insurers and the decision of the arbitrator is conclusive and binding among all parties involved.

39-A M.R.S.A. § 354 (Supp.1997) (emphasis added).

[¶5] Subparagraph 1 states that section 354 applies when “more than one insurer is responsible for that condition.” 39-A M.R.S.A. § 354(1) (emphasis added). As we have stated, the right to an apportionment in workers’ compensation eases is limited to a right of subrogation. See Kennedy v. Brunswick Convalescent Ctr., 584 A.2d 678, 681 (Me.1991) (subsequent employer not entitled to apportionment after employee settled claim against previous employer).² The subrogation principle has been carried forward into the new Act by subsection 2. Because there is only one insurer responsible for compensation in this case, there is no statutory basis for an apportionment.³

[¶ 6] The employer’s remaining arguments are based more on policy than language of the Act. Ladd Holmes contends that, as a matter of fairness, employers should not be made fully liable for benefits resulting from multiple injuries merely because the employee, by his or her own inaction, failed to notify a subsequent employer. Ladd Holmes contends that “[t]here is no indication that the Legislature ever intended for such exceptional penalties to be borne by employers upon the fortuities of the employee’s own compliance with the statutory notice provisions.”

[¶ 7] We rejected a similar policy argument made by the employer in Harding, 647 A.2d at 1194. In that case, the employer sought an apportionment against an employee who suffered a subsequent injury while self-employed and not covered by the Act. Id. at 1193. The employer made the policy argument that “the self-employed employee who receives a subsequent injury arising from self-employment should not be entitled to look to a previous employer for full eom-pensation merely because that employee has failed to elect coverage under the Act.” Id. at 1194. We rejected the employer’s policy argument because it lacked support in the statutory language. Id. (“While the employer makes an interesting policy argument, such policy issues are more appropriately addressed to the Legislature.”).

[¶ 8] Ladd suggests further that the Board’s result will encourage employees to collude with subsequent employers in order to shift full liability to a prior employer. Such action, however, would not be without risk to the employee. A previous employer can only be made fully liable for a resulting incapacity when the subsequent nonwork-injury is “causally connected” to the previous work-injury. 39-A M.R.S.A. § 201(5); Mushero, 683 A.2d at 506. Any employee who colludes with a later employer to let the notice period lapse on a claim will therefore run the risk that the Board will find no causal connection between the injuries and deny full compensation against the previous employer.

[¶ 9] We find no support for the employer’s remaining policy arguments in this appeal. The decision to include or exclude an injury within the ambit of the Workers’ Compensation Act is as much a question of legislative policy as it is a matter of actual work-relatedness. Indeed, workplace injuries are exempted from the Act for a variety of reasons that are unrelated to the actual connection of the injury to the work, for example, because the employee is a maritime employee, 39-A M.R.S.A. § 102(11)(A)(1) (Supp. 1997), a firefighter, 39-A M.R.S.A. § 102(11)(A)(2), or self-employed, 39-A M.R.S.A. § 102(11)(B), or because the employer is a small agricultural business and is exempted from the obligation to procure workers’ compensation insurance, 39-A M.R.S.A. § 401(1) (Supp.1997). The determination whether an injury is “work-related” is ultimately a legislative decision; and we decline to enter into the thicket of deciding on a case-by-case basis whether otherwise noncompensable injuries should be regarded as “work-related” for purposes of apportionment. Accordingly, absent some expression of legislative intent to the contrary, we will continue to define a “work-related” injury with respect to whether it is compensable under the Act. See, e.g., LaPointe v. United Eng’rs and Constructors, 680 A.2d 458, 460-61 (Me.1996) (subsequent injury in other jurisdiction treated as nonwork-injury in the absence of a claim under Maine Act); Harding, 647 A.2d at 1194 (subsequent injury while self-employed and not covered by Act treated as nonwork-injury).⁴

The entry is:

Decision of the Workers’ Compensation Board affirmed.

SAUFLEY and DANA, JJ., dissent.

1 . The statute provides:

If an employee suffers a nonwork-related injury or disease that is not causally connected to a previously compensable injury, the subsequent nonwork-related injury or disease is not com-pensable under this Act.

39-A M.R.S.A. § 201(5).

2 . We do not agree with Ladd Holmes that our decision in Murray v. City of Augusta, 394 A.2d 1171 (Me.1978), stands for the rejection of subrogation as the basis for apportionment. Id. at 1175. The employee in Murray suffered two work-related injuries while employed by different employers. Id. at 1172-73. The employee brought a workers’ compensation claim against his first employer, the City of Augusta, but failed to join his second employer, Bath Iron Works. Id. at 1173. We held that the award of benefits against the City of Augusta must be reduced to reflect the subsequent employer’s proportionate share of responsibility for the disability, even though the second employer was not a party to the proceeding. Id. at 1175. Ladd Holmes contends that, pursuant to subrogation principles, the liability of Bath Iron Works should have been established prior to apportioning liability. Murray, however, was decided pursuant to judge-made apportionment principles and prior to the statutory apportionment provision limiting apportionment to a right of subrogation. P.L.1977, ch. 368, codified as 39 M.R.S.A. § 104-B, repeated and replaced by P.L.1991, ch. 885, § A-7. A-8; see Robbins v. Bates Fabrics, Inc., 412 A.2d 374, 377-78 (Me.1980). Moreover, as we stated more recently in Harding v. Sheridan D. Smith, Inc., 647 A.2d 1193 (Me.1994), there was nothing in Murray to suggest that the employee was barred from bringing a claim against his second employer. As we stated in Harding, the employee in Murray "retained the right to seek supplemental workers' compensation recovery against the employer not joined in the original action.” Id. at 1194

3 . Ladd Holmes also contends that because subsection 354(2) provides that the most recent insurer "shall initially be responsible .to the employee for all benefits payable under this Act,” the first insurer is not responsible for any compensation unless and until the most recent insurer is made initially responsible for benefits. We have never interpreted the apportionment statute in the way suggested by the employer, see Harding, 647 A.2d at 1193-94 (recovery against first employer when second jury occurred in self-employment); LaPointe v. United Eng’rs and Constructors, 680 A.2d 458, 460 (Me.1996) (recovery against first employer when later Massachusetts employer not joined); and we see no reason to alter our consistent interpretation in the absence of express statutory authority to the contrary.

4 . Ladd Holmes also contends that the Board’s conclusion that the two injuries were causally related was not based on competent evidence. Our review of factual determinations is deferential. Smith v. Great Northern Paper, Inc., 636 A.2d 438, 439 (Me.1994). We conclude that there is competent evidence on the record to support the Board’s findings.