Marean v. City of Portland
Maine Municipal Association
December 9, 2016
CategoriesGradual Injury Notice Gradual Injury Notice
Gradual Injury Post Traumatic Stress Disorder PTSD Neck Arm Back Leg Notice
Summary from the Troubh Heisler Attorneys
Marean was a Portland EMT and claimed a gradual PTSD injury from experiencing "the threat of death or actual death" during his work. He had been getting psychological treatment for this condition for years prior to claiming it as a work injury in 2012, when his doctor suggested he take time off from work or perform non-patient care duties.
He gave notice of this injury within 90 days of leaving work, but Portland raised notice as a defense anyway, claiming the actual date of this gradual injury occurred earlier. Marean filed a petition in 2013 and later amended it to include a gradual physical injury to his neck, arms, back and legs. Judge Jerome granted the petition on the PTSD but denied his petition on the physical injury because of late notice.
Portland appealed, but the Appellate Division panel affirmed the decision, finding that Judge Jerome conceived and applied the law correctly. Judge Jerome had found that the PTSD injury became "manifest" only on the day Marean left work -- not a month earlier when he and his doctor discussed that future possibility.
The panel cited the Maine Supreme Court's decision in Jensen, which held that "the date of injury for a gradual injury is the date on which the injury manifests itself.” The panel, however, said the Court had "referred interchangeably" to the injury date and incapacity dates, as though either one could be used as the date of a gradual injury.