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Commercial Union v. Workers' Comp. Board
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME   227
Docket:	Pen-97-237
Argued:	October 8, 1997
Decided:	December 5. 1997

Panel:		WATHEN, C.J., and ROBERTS, CLIFFORD, DANA, and LIPEZ, JJ.

COMMERCIAL UNION INSURANCE COMPANY

 v. 

WORKERS' COMPENSATION BOARD

DANA, J.

	[¶1]  Commercial Union Insurance Company appeals from a decision of
the Superior Court (Penobscot County, Kravchuk, J.) affirming a decision of
the Workers' Compensation Board penalizing the insurer $2,500 for
violations of the Worker's Compensation Act in obtaining an employee's
medical records.  39-A M.R.S.A. § 360(2) (Supp. 1997).  Commercial Union
contends that, because the Board's decision has a collateral estoppel effect
in an action pending in the Superior Court, the Board's denial of its motion
to stay the Board proceedings constituted an infringement of its right to a
jury trial pursuant to article I, section 20 of the Maine Constitution. 
Commercial Union also contends that the Board's findings of intentional
misrepresentation and a willful violation of the Act were not supported by
substantial evidence.  We disagree with both contentions and affirm the
decision of the Board.
	[¶2]  Examining the evidence in the light most favorable to the Board,
the record reveals that Lynn Thiel suffered a work-related injury to her right
foot while employed by Hibbard Nursing Home.  Hibbard's insurer,
Commercial Union, sent Thiel a medical release form requesting a release of
"any and all" of Thiel's medical records from Mayo Regional Hospital.  Thiel
contacted Commercial Union by telephone, objected to the scope of the
release, and stated that she would only agree to release medical information
pertinent to her foot injury.  Commercial Union instructed Thiel to discard
the first form and that another more limited release would be sent to her. 
Thereafter, Thiel received two releases from Commercial Union.  One of the
forms was a more restrictive version of the release that she had already
seen, now limited to medical records pertinent to her work injury.  The
second form was titled "Statement of Injured."  Although much of this latter
form dealt specifically with the work injury, the final paragraph, read in
isolation, suggested an unlimited release of medical information.  Thiel was
instructed to sign this form "so that [Commercial Union] may give early
consideration to [her] case."  Thiel signed both release forms. 
	[¶3]  During an informal conference two years later representatives of
Commercial Union made statements leading Thiel to believe that
Commercial Union had obtained records from the hospital that did not
relate to her work injury.  Thiel obtained a copy of the "Statement of
Injured" form from Mayo Regional Hospital and discovered that it had been
altered so that all but the last paragraph, containing the broadly written
release, had been removed.  An insurance adjuster confirmed that both
forms, including the altered form, were in Commercial Union's file and that
at least one of the forms had been sent to Mayo. 
	[¶4]  In 1993 Thiel filed a complaint in the Superior Court against
Commercial Union alleging an intentional and a negligent infliction of
emotional distress and an invasion of privacy.  In 1994 Thiel also filed a
complaint with the Workers' Compensation Abuse Unit alleging improper
conduct in obtaining the release.  Commercial Union filed a motion with the
Board seeking a stay of the Abuse Unit proceeding until the court litigation
was resolved.  Commercial Union's argument before the Board in support of
its motion addressed issues of res judicata, collateral estoppel, judicial
economy and fairness.  The Board denied the motion, stating:

I don't think that my ruling in this case would have the effect of
res judicata on that forum; and I don't think that they would be
collaterally estopped from proceeding with their case.  I think
this is a separate proceeding and I don't think the Superior
Court justice would take this proceeding into effect in regard to
that particular case.

	[¶5]  The Board granted Thiel's complaint and ordered Commercial
Union to pay a $2,500 penalty to the General Fund, finding three violations
of 39-A M.R.S.A. § 360(2):  (1) the intentional misrepresentation to Thiel of
the purpose and nature of the "Statement of Insured" release form; (2) the
intentional misrepresentation to Mayo Hospital of the scope of Thiel's
consent to release medical information; and (3) the willful use of an
unauthorized,{1} intentionally altered, release form to obtain medical
information from Mayo Hospital.  Commercial Union filed a petition for
judicial review of final agency action pursuant to 39-A M.R.S.A. § 360(3)
(Supp. 1997).{2}  The Superior Court (Penobscot County, Kravchuk, J.) denied
the petition and this appeal followed. 
	[¶6]  Commercial Union contends that because it was entitled to a jury
trial in the pending civil action, and because the Abuse Unit case involved
the same or similar issues of fact, the Board's denial of its motion to stay
violated its right to a jury trial pursuant to article I, section 20 of the Maine
Constitution.  As the Superior Court observed, however, Commercial Union
did not raise this issue before the Board.  We have held that constitutional
issues are not preserved for appeal unless they are raised at the proceeding
below, and that this rule applies to appeals from administrative agencies. 
New England Whitewater Ctr. v. Department of Inland Fisheries & Wildlife,
550 A.2d 56, 60 (Me. 1988).  The fact that the Board may have been
incorrect in its legal conclusion regarding the collateral estoppel effect of a
Board decision, see Van Houten v. Harco Constr., Inc., 655 A.2d 331, 333
(Me. 1995) (collateral estoppel must be accorded to administrative
proceedings), does not excuse the insurer from raising the jury trial issue
before the Board.  The rule in the administrative setting is based on "'simple
fairness to those who are engaged in the tasks of administration, and to
litigants,'" New England Whitewater, 550 A.2d at 60 (quoting United States
v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)), and the principle
that "'the agency and not the appellate court should have the first
opportunity to rule on the objectionable practices,'" Hale v. Petit, 438 A.2d
226, 232 (Me. 1981) (quoting Mechanic Falls Water Co. v. Public Utilities
Comm'n, 381 A.2d 1080, 1105 (Me. 1977)).  We have no way of knowing
how the Board would have decided Commercial Union's motion had the
Board been alerted to the possibility that a constitutional right might be
infringed by the denial of a stay.  Based on the arguments presented to the
Board, we conclude that it did not abuse its discretion in denying
Commercial Union's motion for a stay.
	[¶7]  Commercial Union next contends that the Board's findings of
intentional misrepresentation and a willful violation of the Act are
"[u]nsupported by substantial evidence on the whole record" and are
"[a]rbitrary or capricious or characterized by abuse of discretion."  5 M.R.S.A.
§§ 11007(4)(C)(5) & (6) (1989).  We disagree.  Section 360(2) provides that
"[t]he board may assess, after hearing, a civil penalty . . . for any willful
violation of this Act, fraud or intentional misrepresentation."  39-A M.R.S.A.
§ 360(2).  The Board's finding that Commercial Union intentionally
misrepresented the nature of the release to Thiel is supported by evidence 
that:  Commercial Union informed Thiel that it would send a limited release;
the release sent was not so limited; and the release was misrepresented as
being necessary only to expedite the handling of the claim.  There is also
substantial evidence to support a finding that Commercial Union
intentionally misrepresented to Mayo Hospital the scope of Thiel's release,
including evidence that:  it used an unauthorized form; it then altered that
form; and the presence of the altered form in both Mayo Hospital's and
Commercial Union's files.  The Board's finding of a willful violation of the Act
is supported by evidence that Commercial Union used an unauthorized,
altered medical release form to obtain medical information while
intentionally misrepresenting the scope of that release to Thiel and Mayo
Hospital.  Commercial Union contends, however, that, absent some evidence
that it actually received records not pertinent to the work injury, there is no
basis for finding a violation of the Act.  We disagree.  Commercial Union's
violations of section 360(2) were complete when it sought the release of
information by intentional misrepresentation or used an altered,
unauthorized release form in willful violation of the Act.  We therefore
conclude that the Board acted within its discretion in ordering the penalty. 
	The entry is:	
Decision of the Workers' Compensation Board
affirmed.
Attorneys for plaintiff:

David C. King, Esq., (orally)
Barbara A. Cardone, Esq.
Rudman & Winchell
P O Box 1401
Bangor, ME 04402-1401

Attorney for defendant:

Julia A. Finn, Esq., (orally)
General Counsel
Workers' Compensation Board
27 State House Station
Augusta, ME 04333-0027

Attorney for party-in-interest Lynn Thiel:

Wayne M. Whitney, Esq., (orally)
McTeague, Higbee, MacAdam, Case, Watson & Cohen 
P O Box 5000
Topsham, ME 04086