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Joyce v. S.D. Warren
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 163
Docket:	WCB-99-487
Argued:	September 5, 2000
Decided:	September 28, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

									

MARIE JOYCE

v.

S.D. WARREN COMPANY

ALEXANDER, J.

	[¶1]  The S.D. Warren Company has an in-house medical department
providing employees treatment for on the job injuries.  The services of that
clinic have proven a significant generator of dispute on the issue of whether
receiving in-house medical treatment tolls the statute of limitations
provisions in the Workers' Compensation Act when the employer, having
treated the employee's injury in the medical department, does not file a
First Report of Injury with the Workers' Compensation Board.{1}  
	[¶2]  S.D. Warren appeals from a decision of a Workers'
Compensation Hearing Officer, granting the employee's petitions for award
relating to two injuries in 1992 for which the employee received in-house
medical treatment.{2}  The hearing officer concluded that providing in-house
medical treatment tolled the two-year statute of limitations and therefore
the employee's claims were not barred by the statute of limitations. 
39 M.R.S.A. § 95 (Supp. 1992), repealed and replaced by P.L. 1991, ch. 885,
§§ A­p;7, A­p;8 (codified at 39-A M.R.S.A. § 306 (Pamph. 1999)).  In Moreau v.
S.D. Warren Co., 2000 ME 62, ¶ 9, 748 A.2d 1001, 1004, decided after the
hearing officer's decision in this case, we held that the payment of in-house
medical treatment does not constitute a "payment made under this Act" for
purposes of extending the then applicable ten­p;year statute of repose.{3} 
Because S.D. Warren was not required to file a first report of injury to trigger
the statute of limitations, and because the rationale of Moreau also applies to
the two-year statute of limitations, we vacate the hearing officer's decision.

I.  CASE HISTORY

	[¶3]  Marie Joyce began working at S.D. Warren in 1987, and had
several injury claims which are not at issue in this case.  In August 1998,
Joyce filed petitions for award with the Workers' Compensation Board
alleging an injury to her arms and hands occurring on April 30, 1992, and a
low back injury on October 17, 1992.  The parties stipulated that Joyce
suffered both injuries in 1992, but that:  (1) she had not received incapacity
benefits for those injuries; (2) she received treatment and medical supplies
by the doctors and nurses at S.D. Warren's in-house medical department, but
no outside medical treatment; and (3) the employee's petitions were filed
within six years of the receipt of in-house medical treatment.  The hearing
officer's decision indicated that Joyce lost no work as a result of the 1992
injuries.
	[¶4]  In May 1999, the hearing officer granted the employee's
petitions for award and awarded protection of the Act relating to both dates
of injury in 1992.  Based on the parties' stipulations, the hearing officer
found that the employee had not received any outside medical benefits for
either date of injury and that she had not filed a petition for award within
two years of either date of injury.  The hearing officer also found that "no
first report was filed until after Petitions at issue in this matter were
brought."  The hearing officer concluded that the petitions relating to the
1992 injuries were not barred by the then applicable statute of limitations{4}
because it viewed provision of in-house medical treatment as equivalent to
payment for treatment to an outside medical provider.
	[¶5]  The hearing officer denied the parties' motions for further
findings of fact and conclusions of law.  We granted S.D. Warren's petition for
appellate review pursuant to 39-A M.R.S.A. § 322 (Pamph. 1999).

II.  DISCUSSION

	[¶6]  At the time of the 1992 injuries, the statute of limitations
provided, in pertinent part:

Any employee's claim for compensation under this Act is
barred unless an agreement or a petition as provided in
section 94 is filed within 2 years after the date of the injury,
or, if the employee is paid by the employer or the insurer,
without the filing of any petition or agreement, within 2
years of any payment by such employer or insurer for benefits
otherwise required by this Act.  The 2-year period in which
an employee may file a claim does not begin to run until the
employee's employer, if the employer has actual knowledge
of the injury, files a first report of injury as required by
section 106 of the Act. . . .  No petition of any kind may be
filed more than 6 years following the date of the latest
payment made under this Act.  For the purposes of this
section, payments of benefits made by an employer or insurer
pursuant to section 51-B or 52 are considered payments
under a decision pursuant to a petition, unless a timely
notice of controversy has been filed.

39 M.R.S.A. § 95 (Supp. 1992), repealed by P.L. 1991, ch. 885, § A-7, A-8
(now codified as 39-A M.R.S.A. § 306 (Pamph. 1999)).  
	[¶7]  Section 95 has a two-year statute of limitations (the first
sentence) and a six-year statute of repose (the second-to-last sentence). 
The two-year limitations period is not triggered unless the employer files a
"first report of injury."  The second sentence provides: "The 2-year period
in which an employee may file a claim does not begin to run until the
employee's employer, if the employer has actual knowledge of the injury,
files a first report of injury as required by section 106 of the Act. . . ."
	[¶8]  The hearing officer expressly found that "no first report was
filed until after Petitions at issue in this matter were brought."  Joyce
contends that, pursuant to the second sentence of section 95, the two-year
statute did not run because of the failure of the employer to file a timely first
report of injury.  S.D. Warren counters that no first report of injury was
"required by section 106 of the Act," and therefore the employer's failure to
file a first report of injury did not bar the two-year statute from running.   
	[¶9]  The employer's duty to file a first report of injury was stated in
former section 106.  Prior to 1991, section 106 provided, in pertinent part: 

Whenever any employee has reported to an employer under the
Act any injury arising out of and in the course of his employment
which has caused the employee to lose a day's work or has
required the services of a physician, or whenever the employer
has knowledge of any such injury, the employer shall report the
injury to the commission within 7 days after he receives notice
or has knowledge of the injury. . . .

39 M.R.S.A. § 106 (1989), amended by P.L. 1991, ch. 615, § A-50 (effective
October 17, 1991).  This language had remained virtually unchanged since
its enactment in 1939.  See P.L. 1939, ch. 276, § 11.
	[¶10]  In 1991, section 106 was amended to remove the
requirement of a notice of injury when the employee receives the services of
a physician.  The amended statute provided, in pertinent part:

Whenever any employee has reported to an employer under the
Act any injury arising out of and in the course of the employee's
employment that has caused the employee to lose a day's work,
or whenever the employer has knowledge of any such injury, the
employer shall report the injury to the commission within 7
days after he receives notice or has knowledge of the injury. . . . 
The employer shall complete a first report of injury form for any
injury that has required the services of a health care provider
within 7 days after the employer receives notice or has
knowledge of the injury.  The employer shall provide a copy of
the form to the injured employee and retain a copy for the
employer's records but is not obligated to submit the form to the
commission unless the injury later causes the employee to lose a
day's work.

P.L.  1991, ch. 615, § A-49, codified as 39 M.R.S.A. § 106 (Supp. 1992),
repealed and replaced by P.L. 1991, ch. 885, § A-7, A-8.{5}  We have not had
occasion to interpret this version of section 106 which applied only in part
of 1991 and 1992.  
	[¶11]  The last two sentences of section 106 indicate that the
employer is required to complete a first report of injury in cases when the
employee receives medical treatment, but is not required to file that first
report.  Thus, the final two sentences provide that when an employee suffers
a "medical only" injury, the employer "shall complete a first report of injury
form . . . within 7 days after the employer receives notice or has knowledge
of the injury," and "provide a copy of the form to the injured employee and
retain a copy for the employer's records," even though the employer is "not
obligated to submit the form to the commission unless the injury later
causes the employee to lose a day's work."  
	[¶12]  There is nothing in the record to suggest that the employer
completed a first report of injury form or provided Joyce with that form.
However, former section 95 tolls the statute of limitations not on the
completion of a first report of injury, but the filing of a first report of injury. 
The key language of section 95 is: "The 2-year period in which an employee
may file a claim does not begin to run until the employee's employer, if the
employer has actual knowledge of the injury, files a first report of injury as
required by section 106 of the Act. . . ."  39 M.R.S.A. § 95 (Supp. 1992),
repealed by P.L. 1991, ch. 885, § A-7 (emphasis added).  Thus, even though
section 106 requires an employer to complete a first injury report and
provide it to the employee in the case of a "medical only" injury, the
employer was not required to file the first report after 1991.  Accordingly,
the statute of limitations is not tolled when one does not file a first report of
injury that is not required to be filed.
	[¶13]  Because failure to file a first report of injury did not toll the
two-year statute of limitations, we briefly address whether the in-house
medical treatment tolled the two-year statute of limitations. 
	[¶14]   After 1989,{6} the last sentence of section 95 provided:

For the purposes of this section, payments of benefits made by
an employer or insurer pursuant to section 51-B or 52 are
considered payments under a decision pursuant to a petition,
unless a timely notice of controversy has been filed.

39 M.R.S.A. § 95 (Supp. 1992), repealed by P.L. 1991, ch. 885, § A-7.
	[¶15]  This sentence means that, if the employer makes a payment
without filing a notice of controversy, the effect will be the same as if the
employee filed a petition for award and the hearing officer reached a
decision awarding compensation--in other words, the two-year statute will
be tolled.
	[¶16]  The hearing officer in this case concluded that, although
pursuant to Wallace v. S.D. Warren, 640 A.2d 203, 204-05 (Me. 1994), in-
house medical services were not a payment pursuant to former 39 M.R.S.A.
§ 51-B (1989), repealed by P.L. 1991, ch. 885, § A-7, they were a payment
pursuant to former 39 M.R.S.A. § 52 (1989), repealed and replaced by P.L.
1991, ch. 885, §§ A­p;7, A-8 (codified at 39-A M.R.S.A. § 206 (Pamph. 1999)).
	[¶17]  Section 52 provides the basic entitlement to employer
payment of medical expenses, and provides, in pertinent part:

§ 52.  Duties and rights of parties as to medical and other
services; cost

	An employee sustaining a personal injury arising out of
and in the course of his employment or is disabled by
occupational disease shall be entitled to reasonable and proper
medical, surgical and hospital services, nursing, medicines, and
mechanical, surgical aids, as needed, paid for by the employer. 

. . . .

	[¶18]  Section 51-B provides that "[c]ompensation for medical
expenses, aids and other services under section 52 is due and payable
within 90 days from the date a request is made for payment of these
expenses." 39 M.R.S.A. § 51-B(4) (1989), repealed by P.L. 1991, ch. 885,
§ A-7.  Section 52 was amended in 1985 to account for the "early pay
system" and to require that the "employer shall . . . make prompt payment
for [medical services, etc.] to the provider or supplier or reimburse the
employee, in accordance with section 51-B, subsection 4."  P.L. 1985, ch.
729, § 2. 
	[¶19]  In Wallace, 640 A.2d at 203, the employee sought treatment
at S.D. Warren's in-house medical department and was fitted with a back
support in 1986.  Id. at 203.  The employer filed a first report of injury, but
did not file a memorandum of payment or notice of controversy.  Id.  The
hearing officer concluded that the employee's first petition for award in
1991 was time-barred under the two-year statute of limitations.  Id.  The
employee contended on appeal that the provision of in-house medical
treatment constituted a "payment under this Act" pursuant to the second-
to-last sentence of section 95, which provides: "No petition of any kind may
be filed more than 10 years following the date of the latest payment under
this Act."  39 M.R.S.A. § 95 (1989), amended by P.L. 1991, ch. 615, § A-44. 
Id. at 204.
	[¶20]  In Wallace, we interpreted section 95 as that statute appeared
prior to the 1989 amendment.  "We do not address the applicability of the
1989 amendments to section 95."  Id. at 203, n.1.   We concluded that in-
house medical treatment was not a payment pursuant to section 51-B.  Id. at
204-05.  
	[¶21]  More recently in Moreau, 2000 ME 62, ¶ 9, 748 A.2d at
1004, we relied on Wallace to hold that the provision of in-house medical
treatment does not constitute a "payment made under this Act" for
purposes of extending the former ten-year statute of repose.  In Moreau, we
reasoned that section 51-B does not create any independent right to
compensation for medical benefits apart from section 52, and therefore,
there was no principled reason not to apply Wallace-if in-house medical
treatment is not a payment pursuant to section 51-B, it must also not be a
payment pursuant to section 52 for purposes of tolling the statute of repose. 
Id.
	[¶22]  The rationale of Moreau and Wallace control the present case. 
Wallace holds that in-house medical treatment is not a payment pursuant to
section 51-B, but reserves the question of whether it is a payment sufficient
to toll the two-year statute of limitations.  Moreau holds that the provision of
in-house medical treatment is not a payment pursuant to section 52, and
therefore does not toll the then governing ten-year{7} statute of repose.  Thus,
in-house medical treatment is not a payment sufficient to toll the two-year
statute of limitations or the ten-year or six-year statute of repose.{8}  

III.  CONCLUSION

	[¶23]  Accordingly, we conclude:  

	1.  The applicable version of section 106 required S.D.
Warren to complete a first report of injury and provide a copy
to the employee (which it apparently failed to do), but
section 106 did not require S.D. Warren to file the first
report.  Therefore, failure to file the report did not toll the
two-year statute of limitations pursuant to section 95;  

	2.  The provision of in-house medical treatment did not
toll the two-year statute of limitations.

	The entry is:

The decision of the Workers' Compensation Board
Hearing Officer is vacated.  Remanded to the
Workers' Compensation Board to dismiss the 1992
injury claims as barred by the then applicable statute
of limitations.

Attorneys for the employee:

James J. MacAdam, Esq.
Alexander McCann, Esq.      (orally) 
MacAdam & McCann
236 Gannett Dr.
So. Portland, Maine 04106 

Attorneys for the employer:

Thomas E. Getchell, Esq.      (orally)
Ann I. Brandt, Esq.
Troubh, Heisler & Piampiano
P.O. Box 9711
Portland, Maine 04104-5011