Robert Plourde v. Huhtamaki, Inc.

Insurance Company

Gallagher Bassett Services

Date Decided

June 30, 2021

Panel Members

Timothy Collier

Mike Stovall


Gradual Injury Notice Procedure Statute of Limitations Gradual Injury Notice Procedure Statute of Limitations


Administrative Notice mistake of fact

File Size

155 KB


Summary from the Troubh Heisler Attorneys

The Appellate Division found that the ALJ did not commit error by taking administrative notice of a FROI after the evidence closed, and correctly determined the employee was under a mistake of fact as to the nature and cause of his injury. Mr. Plourde developed low back symptoms in 2015, leading to fusion surgery on May 25, 2016. Prior to the surgery, Mr. Plourde completed disability forms listing the back condition as non-work related. Subsequently he found work with another employer earning less than he had a Huhtamaki. On April 13, 2018 Mr. Plourde met with an attorney where he learned the concept of gradual injury. On that day he gave notice to Huhtamaki of a May 25, 2016 low back injury. On June 1, 2018 Huhtamaki filed a First Report of Injury (FROI). In defense of a Petition for Award Huhtamaki raised affirmative defenses that notice of injury was not provided within 30 days and that the petition was barred by the two-year statute of limitations. The case was ready for decision in April 2019 but the parties asked the ALJ to hold off on decision while they attempted to negotiate a resolution. The negotiations failed and at a June 18, 2019 conference Mr. Plourde asked the ALJ to take administrative notice of the FROI. The ALJ did so over the objection of Huhtamaki. Further written arguments were submitted. The ALJ issued a decision granting the petition finding that Mr. Plourde was under a mistake of fact as to the nature and cause of his injury until April 13, 2018, the date he met with his attorney, and that the statute of limitations did not begin to run until the FROI was filed on June 1, 2018. On appeal Huhtamaki argued the ALJ erred by taking administrative notice of the FROI after the evidence has closed and the case was ready for decision. It cited Sec. 309(2), Sec. 318 and Board Rule Ch. 12, 13(1) for the proposition that cases are to be handled in a summary manner and that the taking of administrative notice fell outside this period of time. The Appellate Division disagreed, citing Maine Rule of Evidence 201, which the ALJ followed in taking notice. The App. Div. also upheld the ALJ's application of the law for determining that Mr. Plourde was under a mistake of fact until April 13, 2018.

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