Bickmore v. Old Town Canoe
Sentry & Travelers
May 14, 2018
CategoriesStatute of Limitations Retroactivity Statute of Limitations
Carpal Tunnel Multiple Insurers Statute of Limitations
Summary from the Troubh Heisler Attorneys
ALJ Hirtle granted OTC/Sentry’s Petitions for Award and Apportionment against Travelers’ 5/18/04 injury. Sentry was paying benefits on a 5/31/12 bilateral carpal tunnel injury, and Travelers had paid medical expenses following an identical injury in 2004, with the most recent payment made on 12/28/04. It did not file a FROI prior to the amendment’s effective date of 8/30/12, however, because Ms. Bickmore’s first day of lost time was 9/21/12. Traveler’s filed its FROI on 12/14/12. Judge Hirtle concluded that the 2012 amendment tolls the two year statute of limitations when an employer fails to file a FROI only if a FROI was required to be filed. He found that applying the amendment here would change the legal significance of Travelers’ actions by impairing the rights or creating liabilities of the parties involved. Therefore, Judge Hirtle concluded the amendment was substantive rather than procedural, as it would decrease the tolling period from the prior version of the statute as interpreted by the Law Court in Wilson and Graves v. Brockaway-Smith. Per Wilson, on August 29, 2012 the statute had not yet commenced to run, but under the amendment, as of August 30, 2012 Ms. Bickmore’s claim was barred. Judge Hirtle found no legislative intent that the WCB apply the statute retroactively. Having determined that the “operative event” was Travelers’ “failure to file a first report of injury with the board for the May 18, 2004 date of injury,” and that this failure took place before the effective date of the 2012 amendment, he held that application of the amendment in this case would be retroactive and therefore impermissible. The appellate panel reviewed the legislative history on the intent of the amendment, including comments from the WCB’s executive branch. The panel agreed with the ALJ’s first two determinations: (1) the legislature intended the amendment to limit Wilson so that the two year statute of limitations is tolled where an employer fails to file a FROI only if a FROI was required to be filed under §303 within two years after the date of injury, and (2) the amendment was substantive and the legislature did not intend that the WCB apply the amendment retroactively. The panel, however, disagreed that the operative event was Travelers’ failure to file a FROI. Noting that neither the original nor amended versions of §306(1) mention an employer’s “failure to file,” and that neither Wilson nor Graves involved the failure to file a FROI, the panel concluded the failure to file a FROI is not an operative event. The panel concluded instead that, in enacting the 2012 amendment, the legislature considered the operative events to be (1) the date the obligation arises to file a required FROI under §303, and (2) the date the employer files the FROI as required by §303. In this case, both operative events occurred after the statute’s effective date of 8/30/12, so application of the amendment was prospective and therefore permissible. Because Sentry filed its claim on the 2004 injury more than six years after Travelers made its last payment, and no FROI was required to be filed within that six year period, it was barred by the statute of limitations.