Boulanger v. SD Warren
Helmsman and CCMSI
January 25, 2019
CategoriesApportionment Durational Limit Apportionment Durational Limit
Multiple Injuries Durational Limit Apportionment Maximum Medical Improvment Self-Insured
Summary from the Troubh Heisler Attorneys
Boulanger suffered work injuries at S.D. Warren in 1989, 1998, and 2002. Warren was self-insured throughout but had different excess insurance programs for each date of injury, with different TPAs administering the different injury claims: CCMSI (1989), Helmsman (1998), and ESIS (2002). In a 2005 decree, the Board ordered Warren/ESIS to pay Boulanger 71% partial incapacity due to the 2002 injury. CCMSI and Helmsman were not involved in that proceeding.
ESIS filed petitions for review and to determine PI, seeking to terminate partial incapacity benefits on the 2002 DOI based on the 520-week durational limit on partial. ESIS also filed petitions for apportionment against CCMSI and Helmsman. CCMSI filed a petition to determine MMI on the 1989 DOI, and Helmsman filed a petition to determine PI on the 1998 DOI.
Boulanger argued that his benefits should not be terminated because the PI due to the 2002 DOI exceeded the applicable threshold and that he was totally incapacitated, making the durational limit inapplicable. Boulanger and Helmsman also argued that ESIS was not entitled to apportionment against CCMSI and Helmsman because Warren was self-insured, and therefore §354 did not apply because there was not "more than one insurer."
ALJ Jerome found that the PI on the 2002 DOI exceeded the threshold, so the durational limit does not apply. She also found that Boulanger's partial incapacity had increased, and she ordered ESIS to pay increased partial incapacity benefits. Judge Jerome found that each injury contributed 1/3 to Boulanger's overall incapacity, but she ruled that a self-insured employer is not entitled to apportionment against itself, based on the "more than one insurer" language of §354 and the definition of "Insurer" in §102(14). She therefore denied ESIS's petitions for apportionment.
Judge Jerome found that Boulanger reached MMI from the 1989 injury on 5/31/03, and she permitted ESIS to reduce by 1/3 its payment to Boulanger 400 weeks after that date, when CCMSI's payment obligation for the 1989 injury would have ended. She also found the PI on the 1998 injury was 9%, which is below the applicable threshold. All TPAs filed appeals or cross-appeals.
The appellate panel reversed Judge Jerome's apportionment ruling, holding that apportionment is a fundamental right not created or limited by §354. The panel also held that ESIS's petition for review raised the issue of the degree of Boulanger's incapacity, and that Boulanger's separation from employment at Warren after the 2005 decree constituted a change in circumstances sufficient to revisit the incapacity determination made in that decree.
The panel ordered CCMSI to pay apportionment benefits to ESIS until CCMSI’s 1989 injury reached the 400-week durational limit, and it ordered Helmsman to pay ongoing apportionment benefits to ESIS, because Helmsman had not reached the 520-week durational limit on its 1998 injury when the evidence closed.