Somers v. S.D. Warren Company

Insurance Company

Constitution State Services

Date Decided

December 15, 2020

Panel Members


Durational Limit Procedure Partial Incapacity Res Judicata Statutory Construction Durational Limit Partial Incapacity Procedure Res Judicata Statutory Construction


rule making authority res judicata

File Size

118 KB


Summary from the Troubh Heisler Attorneys

Lorraine Somers v. S.D. Warren (attached) – Ms. Somers injured her knee at SD Warren in 2000 but returned to her regular job before leaving permanently in 2005. In 2008 the Board awarded her 100% partial benefits. In 2013, Warren filed a Petition for Review seeking a discontinuance of Somers’ benefits for expiration of the 520-week limitation, which Judge Elwin granted in 2014.

In 2015, Somers filed a Petition for Reinstatement of Benefits because Warren did not comply with WCB Rule, Ch.2, §5 (1) by mailing her a formal notice of her right to ask for an extension of benefits because of financial hardship due to her inability to find suitable work. The rule required employers to send the notice at least 21 days before benefits would expire and to list the expiration date, as it also gives the employee only 30 days after benefits end to file an extension request.

Warren argued that res judicata barred the reinstatement petition, as Somers could have raised the issue during the Petition for Review. Warren also argued that the rule applied only to an employer’s unilateral suspension, not a litigated Petition for Review where the employee is represented by counsel. Warren pointed out that compliance in a contested case is impossible because the termination date is unknown until the Board issues the decree. Judge Elwin agreed with Warren and denied Somers’ Petition for Reinstatement in 2017.

Somers appealed, and in January 2020 the WCB Appellate Division finally issued a decision. It reversed Judge Elwin and held that that the rule applied even in the context of a Petition for Review, and that res judicata did not bar the benefit extension petition as the notice issue was not raised or litigated during the Petition for Review. The panel found res judicata inapplicable because the rule is not violated until the employer stops payment after the decree issues without having first provided the notice, therefore the employer’s non-compliance with the rule cannot be known during the first litigation.

Warren appealed to the Maine Supreme Court, which accepted the case for review but upheld the Appellate Division decision, deferring to the Board’s interpretation and application of its own rule. Although the Board changed the rule to require the Board, rather than the employer, to give the benefit-extension notice in its decrees, that amendment did not apply to this case and may not apply to others as well. If you have any questions, please let us know.

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