Name

Davis v. Boise Cascade & NewPage

Insurance Company

Maine Self-Insurance Guarantee Association

Date Decided

December 1, 2017

Panel Members

Timothy Collier

Elizabeth Elwin

David Hirtle

Categories

Tags

Multiple Injuries Neck Back §306 §95 IME§312

File Size

284 KB

Summary from the Troubh Heisler Attorneys

Mr. Davis claimed a 1989 neck injury, a 1990 back injury, and a 2010 back injury. He worked for Boise when the 1989 and 1990 injuries occurred, and he worked for NewPage when the 2010 injury occurred (NewPage had acquired the former Boise Cascade mill). Boise had paid compensation benefits for the 1989 and 1990 injury, with the last payment occurring in 2004, more than 10 years before the current petitions were filed against Boise both by Mr. Davis and by NewPage (seeking apportionment). Boise asserted statute of limitations defenses to the 1989 and 1990 injury claims, citing 39 M.R.S. §95, the statute of limitations that applies to pre-1993 claims.

Mr. Davis and NewPage argued that a 2001 amendment to 39-A M.R.S. §306 (the statute of limitations that applies to injuries on and after 1/1/93) applies to the 1989 and 1990 injury claims. That amendment provided that certain qualifying treatments at an employer-provided medical facility constituted a "payment of benefits" for statute of limitations purposes. Boise argued that the amendment to §306 could not apply to the 1989 and 1990 injury claims because those claims are governed by former §95. Boise also argued that visits to the mill medical department after Boise sold the mill could not constitute "payments" by "the employer" even under the amended §306 because the medical department was then maintained by a subsequent employer rather than the employer at the time of the injury.

Judge Jerome agreed with Mr. Davis and NewPage, found that Mr. Davis had the sufficient number of mill medical department visits to make the visits the equivalent of "payments," and ruled that visits to the NewPage medical department tolled the statute of limitations against Boise. The majority of the Appellate Division panel affirmed (Judge Hirtle dissenting). Neither Judge Jerome nor the Appellate Division addressed the subsequent employer issue.

Judge Jerome also ruled, and the Appellate Division panel affirmed, that the payments of some back-related medical bills by NewPage's TPA after the 2010 injury were made with notice that they also applied to the 1990 back injury, thereby tolling the statute on that injury pursuant to Klimas. Finally, the panel also affirmed Judge Jerome's total incapacity finding, holding that it was within her discretion to adopt the incapacity opinion in the §312 medical examiner's written report rather than the contrary opinion he expressed in his subsequent deposition.