Name
Sherry Knox v. Irving Forest Products, Inc.
Insurance Company
Liberty Mutual Insurance Co.
Date Decided
June 29, 2022
Panel Members
Elizabeth Elwin
David Hirtle
Evelyn Knopf
Categories
Procedure Notice Reopening Evidence Notice Procedure Reopening EvidenceTags
File Size
115 KB
DownloadSummary from the Troubh Heisler Attorneys
Sherry Knox v. Irving Forest Products, Inc. (attached)- In 2019 the Appellate Division granted Irving’s appeal of Judge Goodnough’s 2017 decree which found that Knox had experienced a gradual, work-related right hip injury in 2015 as a lumber handler. The Appellate Division vacated the decision in part and remanded for the ALJ to determine the date of Knox’s gradual injury by applying the correct legal standard established in Jensen v. S.D. Warren, 2009 ME 35. On remand the ALJ rejected Knox’s request to offer new testimony on the issue of mistake of fact of when she became aware her hip condition could be work-related. This mistake of fact issue was not raised in the first litigation. Applying the Jensen standard to the existing record, and based on Knox’s testimony that on February 15, 2015 she was experiencing severe right hip pain brought on by her injuries, the ALJ found the date of injury was February 21, 2015. Further, the ALJ relied on Knox’s testimony that she gave notice of her injury in February 2015 to her supervisor to find that she knew her condition was work-related at that time and therefore the 30-day notice period began on that date. Because the initial decision found that Knox actually gave notice on July 22, 2015, the ALJ determined the claimed was barred by sec. 301 and denied the petition. This led to the current appeal.
The Appellate Division rejected Knox’s argument the ALJ was obligated to allow her to present testimony and develop a record regarding the mistake of fact issue. Knox had every opportunity to present the mistake of fact argument during the initial litigation and it was not reversible error to refuse her request for further testimony.
The Appellate Division also rejected Knox’s argument that it was error for the ALJ to rely on her testimony to establish the required knowledge that triggered her notice obligation in February of 2015 when in the 2017 decision the ALJ found the same testimony not credible to establish Knox gave notice of injury to Irving on that date. The Appellate Division held that it was within the ALJ’s discretion as a fact finder to rely on Knox’s testimony for a different purpose: finding that she knew of a connection between her symptoms and work in February of 2015 and then to find that her notice obligation began at that time.