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The Supreme Judicial Court of Maine ruled Thursday that a worker is not required to give notice of his occupational disease claim to his former employer's insurer when the employer no longer exists.
Roger Desgrosseilliers repaired asbestos insulation in paper mills throughout New England since the 1960s before retiring in 1994. In 2015, Mr. Desgrosseilliers underwent surgery for lung cancer and was diagnosed with asbestosis, according to documents in Desgrosseilliers v. Auburn Sheet Metal, filed in Portland, Maine.
In early 2016, Mr. Desgrosseilliers filed five claims for compensation under the Occupational Disease Law, each alleging a different date of injury between Sept. 1977 and May 1994, naming a different employer and insurer pairing, according to documents.
The claims were consolidated and the parties agreed to bifurcate the issues of medical causation and the last injurious exposure. After a hearing, an administrative law judge found that Mr. Desgrosseilliers' last injurious exposure likely occurred in 1994 when he was working for Auburn Sheet Metal, which no longer existed had workers comp insurance with the Maine Employers' Mutual Insurance Co.
The ALJ determined that Mr. Desgrosseilliers' date of injury for purposes of applying the Occupational Disease Law was Nov. 2, 2015, when he underwent lung cancer surgery. The ALJ also determined, however, that Mr. Desgrosseilliers likely gained awareness of the compensable nature of his injury only when he discussed the claim with his attorney in February 2016.
Mr. Desgrosseilliers notified Auburn of his claim 31 days after the ALJ’s ruling. State law at the time required that notice of injury be provided within 30 days, but since the 30th day fell on a Sunday, the ALJ deemed notice on the following business day to be timely.
The Appellate Division of the Workers' Compensation Board affirmed the decision of the ALJ on the issue of notice. In affirming, the state’s highest court went on to say that state law provides no direction to employees such as Mr. Desgrosseilliers, whose employer no longer exists.
In the absence of a clear indication of legislative intention and the plain language of state law, the court wrote, “we decline to graft onto the statutory scheme the requirement that an employee provide notice to the employer's insurer when the employer is no longer in existence.”
WorkCompCentral is a sister publication of Business Insurance. More stories here.
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