Roger Desgrosseilliers v. Auburn Sheet Metal at al. , 2021 ME 63 ( 2021 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 63Docket: WCB-20-291
Argued: September 8, 2021
Decided: December 16, 2021
Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
ROGER DESGROSSEILLIERS
v.
AUBURN SHEET METAL et al.
GORMAN, J.
[¶1] Auburn Sheet Metal and Maine Employers’ Mutual Insurance
Company (MEMIC) appeal from a decision of the Appellate Division of the
Workers’ Compensation Board affirming the decision of the WCB
Administrative Law Judge (Goodnough, ALJ) granting Roger Desgrosseilliers’s
petition for award of compensation. The question presented on appeal is
whether an employee is required to give notice of his occupational disease
claim to his former employer’s insurer when the employer no longer exists.
Because neither 39-A M.R.S. § 301 (2021) nor the Occupational Disease Law,
39-A M.R.S. §§ 601-615 (2021), impose that requirement, we affirm the
decision of the Appellate Division.
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I. BACKGROUND
[¶2] The following facts were found by the ALJ in his decision, were
adopted by the Appellate Division, and are not challenged on appeal. Roger
Desgrosseilliers is a seventy-eight-year-old retiree. Beginning in the 1960s,
Desgrosseilliers worked as a sheet metal worker repairing asbestos-insulated
ductwork, siding, roofing, lagging, boilers, and hoods in paper mills throughout
New England. His work resulted in the release of asbestos fibers into the air,
where they were inhaled by him. On November 2, 2015, nearly twenty years
after retiring, Desgrosseilliers underwent surgery for lung cancer and was later
diagnosed with asbestosis.
[¶3] In March of 2016, Desgrosseilliers filed with the Workers’
Compensation Board five petitions for award of compensation under the
Occupational Disease Law. Each petition alleged a different date of injury and
named a different employer and insurer pairing. All told, the petitions covered
a period stretching from September of 1977 until May of 1994. The petitions
were consolidated, and the parties agreed to bifurcate the issues of medical
causation and the last injurious exposure. After a hearing, the ALJ found that
Desgrosseilliers’s last injurious exposure to asbestos more likely than not
occurred in 1994 when he was working for Auburn Sheet Metal. In 1994,
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Auburn Sheet Metal was owned and operated by Desgrosseilliers’s wife and
was insured by MEMIC. Desgrosseilliers’s wife has since died, and Auburn
Sheet Metal no longer exists.
[¶4] The ALJ determined that Desgrosseilliers’s date of injury for
purposes of applying the Occupational Disease Law was November 2, 2015,
when he underwent lung cancer surgery. See 39-A M.R.S. §§ 606- 607. The ALJ
also determined, however, that Desgrosseilliers likely gained awareness of the
compensable nature of his injury only when he discussed the claim with his
attorney on February 26, 2016.
[¶5] Desgrosseilliers notified Auburn Sheet Metal of his claim on
Monday, March 28, 2016, when one of its insurers received his petition for
award. This was thirty-one days after he understood the compensable nature
of his injury. The ALJ concluded that Desgrosseilliers’s notice on the thirty-first
day was timely because the thirtieth day fell on a Sunday. In explaining its
conclusion, the ALJ referenced M.R. Civ. P. 6(a), which allows for an extra day
to file documents in civil court matters when, among other reasons, the last day
of the filing period is a Sunday. The ALJ also concluded that Desgrosseilliers
was operating under a mistake of fact as to the cause or nature of his injury and
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that the notice he provided occurred within a reasonable time. See 39-A M.R.S.
§ 306(5) (2021).
[¶6] After receiving the ALJ’s decision, the parties entered into a consent
decree. They agreed that, if the ALJ’s decision regarding notice was affirmed on
appeal, Desgrosseilliers’s petition would be granted against Auburn Sheet
Metal, as insured by MEMIC. MEMIC specifically reserved the right to challenge
the issue of notice to the Appellate Division and to us. On appeal, the Appellate
Division affirmed the decision of the ALJ with regard to the issue of notice, albeit
on different grounds than that of the ALJ. The Appellate Division concluded that
Desgrosseilliers was not required to provide notice to MEMIC pursuant to
section 301 and, therefore, did not consider whether the notice to MEMIC was
timely. MEMIC petitioned for appellate review of the Appellate Division’s
decision, and we granted the petition. See 39-A M.R.S. § 322(3) (2021); M.R.
App. P. 23(c).
II. DISCUSSION
[¶7] Before 2016, when an ALJ’s decision was reviewed by the Appellate
Division and subsequently appealed, we would review the ALJ’s decision
directly. Bailey v. City of Lewiston, 2017 ME 160, ¶ 9, 168 A.3d 762. The
Legislature, however, amended the workers’ compensation statute to provide
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that “only a decision of the [Appellate] [D]ivision may be reviewed on appeal.”
39-A M.R.S. § 322(1); see P.L. 2015, ch. 469, § 2 (effective July 29, 2016).
Therefore, we review decisions of the Appellate Division “according to
established principles of administrative law, except with regard to the . . . ALJ’s
factual findings.” Bailey, 2017 ME 160, ¶ 9, 168 A.3d 762. Decisions of the
Appellate Division interpreting the Workers’ Compensation Act are “entitled to
great deference and will be upheld on appeal unless the statute plainly compels
a different result.” Johnson v. Home Depot USA, Inc., 2014 ME 140, ¶ 8, 106 A.3d
401 (quotation marks omitted).
[¶8] This case, with its focus on section 301, requires us to consider the
Maine Workers’ Compensation Act of 1992, 39-A M.R.S. §§ 101-409 (2021), and
its relationship to the Occupational Disease Law, 39-A M.R.S. §§ 601-615.
See Urrutia v. Interstate Brands Int’l, 2018 ME 24, ¶ 12, 179 A.3d 312 (“The law
of workers’ compensation is uniquely statutory.”) (alteration and quotation
marks omitted)). Our main objective in construing any statute is to give effect
to the will of the Legislature. Est. of Stone v. Hanson, 621 A.2d 852, 853
(Me. 1993); see also Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360
(Me. 1994). In determining the legislative intent, we look first to the plain
meaning of the statutory language. Wuori v. Otis, 2020 ME 27, ¶ 6, 226 A.3d
6771. “[W]e construe that language to avoid absurd, illogical or inconsistent
results, and we consider the whole statutory scheme of which the section at
issue forms a part so that a harmonious result, presumably the intent of the
Legislature, may be achieved.” Urrutia, 2018 ME 24, ¶ 12, 179 A.3d 312(quotation marks omitted).
[¶9] The question presented here is whether any portion of the Workers’
Compensation Act of 1992 or the Occupational Disease Law requires an
employee to provide notice of an occupational disease to an insurer when that
employer is no longer in business. As we have recognized, the purpose of the
thirty-day notice requirement1 is to enable the employer to provide prompt
medical treatment to minimize the employee’s injuries or disability and the
employer’s liability, to make a prompt investigation of the circumstances of the
accident, and to take prompt action to prevent similar injuries to other workers.
See Daigle v. Daigle, 505 A.2d 778, 779 (Me. 1986); Dunton v. E. Fine Paper Co.,
423 A.2d 512, 518 (Me. 1980); Clark v. DeCoster Egg Farms, 421 A.2d 939, 942
(Me. 1980).
1 The notice requirement for some employees has recently been enlarged to sixty or ninety days
after the date of injury, depending on when the injury occurred. See 39-A M.R.S. § 301 (2021);
P.L. 2019, ch. 344, § 13 (effective Sept. 19, 2019).
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[¶10] Although this is a case governed by the Occupational Disease Law,
the parties agree that the notice provision of section 301 applies to
occupational disease claims. See 39-A M.R.S. § 607 (“Sections 301 to 307 with
reference to giving notice, making claims and filing petitions apply to cases
under th[e] [Occupational Disease Law] . . . .”). Section 301 reads, in relevant
part:
For claims for which the date of injury is on or after January 1, 2013
and prior to January 1, 2020, proceedings for compensation under
this Act, except as provided, may not be maintained unless a notice
of the injury is given within 30 days after the date of injury. . . .
The notice must be given to the employer, or to one employer
if there are more employers than one; or, if the employer is a
corporation, to any official of the corporation; or to any employee
designated by the employer as one to whom reports of accidents to
employees should be made. It may be given to the general
superintendent or to the supervisor in charge of the particular
work being done by the employee at the time of the injury. Notice
may be given to any doctor, nurse or other emergency medical
personnel employed by the employer for the treatment of
employee injuries and on duty at the work site. If the employee is
self-employed, notice must be given to the insurance carrier or to the
insurance carrier’s agent or agency with which the employer
normally does business.
(Emphasis added.) As MEMIC concedes, the plain language of section 301
provides no direction to those employees, like Desgrosseilliers, whose
employer no longer exists. Relying on the definition of “employer” found in
39-A M.R.S. § 102(12), MEMIC asserts, however, that we should read section
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301 as though it requires notice to the “employer or insurer.” Section 102(12)
provides:
If the employer is insured, “employer” includes the insurer,
self-insurer or group self-insurer unless the contrary intent is
apparent from the context or is inconsistent with the purposes of
this Act.
[¶11] Adding “insurer” to the first iteration of the word “employer” in
section 301 would produce the following result:
For claims for which the date of injury is on or after January 1, 2013
and prior to January 1, 2020, proceedings for compensation under
this Act, except as provided, may not be maintained unless a notice
of the injury is given within 30 days after the date of injury. . . .
The notice must be given to the employer [or insurer], or to
one employer if there are more employers than one; or, if the
employer is a corporation, to any official of the corporation; or to
any employee designated by the employer as one to whom reports
of accidents to employees should be made. It may be given to the
general superintendent or to the supervisor in charge of the
particular work being done by the employee at the time of the
injury. Notice may be given to any doctor, nurse or other
emergency medical personnel employed by the employer for the
treatment of employee injuries and on duty at the work site. If the
employee is self-employed, notice must be given to the insurance
carrier or to the insurance carrier’s agent or agency with which the
employer normally does business.
(Emphasis added.) The problem with this reading is that it results in
uncertainty and confusion. See Urrutia, 2018 ME 24, ¶ 12, 179 A.3d 312. Would
every employee have the option to give notice to either the employer or an
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insurer when both are in existence and known? That is an unlikely result,
because allowing an employee to give notice to the insurer rather than the
employer would ignore the carefully curated list of individuals or entities
authorized to accept notice from an employee and on behalf of an employer.
See 39-A M.R.S. § 301. Such a process could prevent anyone directly associated
with the workplace from actually being notified, a result inconsistent with the
purposes of section 301. See Daigle, 505 A.2d at 779; Dunton, 423 A.2d at 518;
Clark, 421 A.2d at 942.
[¶12] Even if this interpretation were only applied in situations where
the employer is no longer in existence, a further complication arises in cases
involving occupational diseases. Assuming that section 102(12) should be
applied generally to the Occupational Disease Law,2 the language in the Law’s
notice provision section demonstrates an apparent “contrary intent” in its use
2 As noted above, 39-A M.R.S. § 607 (2021) does specifically incorporate section 301 into the
Occupational Disease Law, 39-A M.R.S. §§ 601-615 (2021). Although there is no provision specifically
incorporating 39-A M.R.S. § 102 (2021) or its definitions, 39-A M.R.S. § 602 states:
Except as otherwise specifically provided, incapacity to work or death of an
employee arising out of and in the course of employment and resulting from an
occupational disease must be treated as the happening of a personal injury arising
out of and in the course of the employment, within the meaning of the former
Workers’ Compensation Act or the Maine Workers’ Compensation Act of 1992, and
all the provisions of the applicable Act apply to that occupational disease. . . .
(Emphasis added and footnotes omitted.)
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of “employer.” Title 39-A M.R.S. § 606, which establishes a process for the
determination of the date an employer becomes liable for an employee
incapacitated by an occupational disease, also contains specific language
directing to whom notice must be given:
The date when an employee becomes incapacitated by an
occupational disease from performing the employee’s work in the
last occupation in which the employee was injuriously exposed to
the hazards of the occupational disease is the date of the injury
equivalent to the date of injury under the former Workers’
Compensation Act or the Maine Workers’ Compensation Act of
1992. When compensation is payable for an occupational disease,
the employer in whose employment the employee was last
injuriously exposed to the hazards of the occupational disease and
the insurance carrier, if any, on the risk when the employee was
last exposed under that employer, are liable. The amount of the
compensation must be based on the average wages of the employee
on the date of injury. Notice of injury and claim for compensation
must be given to the employer in whose employment the employee
was last injuriously exposed to the hazards of the occupational
disease. . . .
(Emphasis added and footnotes omitted.)
[¶13] When “the employer in whose employment the employee was last
injuriously exposed to the hazards of the occupational disease” is no longer in
existence, could the employee satisfy his notice obligation by providing notice
to any one of the employer’s past insurers, even if that insurer was not
responsible for the period of employment when the last injurious exposure
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occurred? See 39-A M.R.S. § 606. How is the employee supposed to know which
insurer to notify? Would notice to any insurer suffice?
[¶14] Because MEMIC’s proposed reading of the statute would require
us to adopt an implied and alternate meaning to the statutory language for
some cases, i.e., those where an employer is no longer in existence, and a “plain
language” meaning to those cases where both the employer and the insurer are
known and still in existence, we would be creating a system not currently found
in either the Workers’ Compensation Act of 1992 or the Occupational Disease
Law. See Daigle, 505 A.2d at 779. Had the Legislature intended to place such a
requirement only on certain employees—those whose employers are no longer
in existence—it certainly knew how to draft such a requirement. See HL 1, LLC
v. Riverwalk, LLC, 2011 ME 29, ¶ 25, 15 A.3d 725 (“It is apparent that the
Legislature knew how to create statutory language that allows [the intended
result in other provisions] . . . . Consequently, the absence of such language [in
this provision] demonstrates the Legislature’s intent [to provide for a different
result].”). Section 301 already contains a provision that specifically requires
some employees—those who are self-employed—to provide notice to the
“insurance carrier or to the insurance carrier’s agent or agency.”
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[¶15] We have repeatedly recognized that the law of workers’
compensation is uniquely statutory. See Urrutia, 2018 ME 24, ¶ 12, 179 A.3d
312. In the absence of a clear indication of legislative intention, and in light of
the substantial deference we pay to the Appellate Division’s interpretation
when the statute’s plain language does not compel a contrary result, we decline
to graft onto the statutory scheme the requirement that an employee provide
notice to the employer’s insurer when the employer is no longer in existence.
Johnson, 2014 ME 140, ¶ 8, 106 A.3d 401; Wentzell v. Timberlands, Inc., 412 A.2d
1213, 1215 (Me. 1980) (“Since the Workers’ Compensation Act is a creation of
the [L]egislature, the [L]egislature bears the primary responsibility for
enunciating with clarity the purposes it intends to achieve through that
statute.”); Ryerson v. Pratt & Whitney Aircraft, 495 A.2d 808, 812 (Me. 1985)
(“If a policy different from that laid down by th[e] clear language is to be
adopted, it is the [L]egislature that should do it . . . .”). To do otherwise would
be to venture outside of our role in a uniquely statutory field created in
response to legislative dissatisfaction with judicial solutions to the problems of
compensation for workers injured or otherwise harmed in the workplace.
Am. Mut. Ins. Cos. v. Murray, 420 A.2d 251, 252 (Me. 1980).
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III. CONCLUSION
[¶16] For the foregoing reasons, we conclude that the Appellate Division
properly concluded that the workers’ compensation statute does not impose on
an injured employee whose employer is no longer in existence the duty to give
notice to the insurer.
The entry is:
Judgment affirmed.
Elizabeth Eddy Griffin, Esq. (orally), MEMIC, Portland, for appellants Auburn
Sheet Metal and Maine Employers’ Mutual Insurance Company
James J. MacAdam, Esq. (orally), Nathan A. Jury, Esq., and Donald M. Murphy,
Esq., MacAdam Jury, P.A., Freeport, for appellee Roger Desgrosseilliers
Workers Compensation Board Appellate Division case number 17-0045
FOR CLERK REFERENCE ONLY