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Parker v. Newell Construction
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Decision:	1998 ME 119 
Docket:	WCB-97-39
Argued:	April 8, 1998
Decided:	May 26, 1998





	[¶1]  The employer, Walter F. Newell Construction, appeals from a
decision of the Workers' Compensation Board granting the employee's
motion for attorney fees and awarding $1,100 in employer-paid fees
relating, in part, to services rendered prior to mediation.  The Board
concluded that, although the employer's attorney did not attend the
mediation, the employer had been represented by counsel prior to the
mediation, and therefore the employee was entitled to employer-paid
attorney fees for pre-mediation services pursuant to 39-A M.R.S.A. § 325(5)
(Supp. 1997) and 39 M.R.S.A. § 110(2) (1989), repealed by Maine Workers'
Compensation Act of 1992, P.L. 1991, ch. 885, § A-7.  We affirm.
	[¶2]  The employee, Daniel L. Parker, suffered a work-related injury on
March 17, 1992, while employed by Newell.  Parker filed a petition with the
Board in 1994 seeking reimbursement for medical treatment.  Newell
retained counsel and filed an answer to the petition.  Newell's counsel did
not attend the mediation.{1}  The Board ultimately granted Parker's petition
and awarded $1,100 in attorney fees and disbursements.  Newell filed a
petition for appellate review challenging the award of fees and we granted
review pursuant to 39-A M.R.S.A. § 322 (Supp. 1997).
	[¶3]  Subsection 325(5) provides:
Attorney fees in cases in which the injury occurred prior to
January 1, 1993.  In cases in which the injury to the employee
occurred prior to January 1, 1993, the amount of the attorney's
fees is determined by the law in effect at the date of the injury
and is payable by the employer.  If the employee attended a
mediation pursuant to section 313 after January 1, 1993 and was
represented by an attorney, the attorney's fees may include
compensation from the date of the mediation session.
39-A M.R.S.A. § 325(5).  At the time of Parker's injury in 1992, former 39
M.R.S.A. § 110 provided, in pertinent part: 
The employer may not be assessed costs of an attorney's fee
attributable to services rendered prior to one week after the
informal conference under section 94-B or, if the informal
conference is waived, services rendered prior to the date of that
waiver, unless a party adverse to the employee was so
represented at that stage.
39 M.R.S.A. § 110(2), repealed by P.L. 1991, ch. 885, § A-7 (emphasis
added).  Applying section 325(5) and former section 110(2), the Board
concluded that Newell was responsible for Parker's pre-mediation attorney
fees because it had sought the advice of counsel prior to mediation.
	[¶4]  Because the Board is the administrative body entrusted by the
Legislature to interpret and apply the Act, we defer to Board interpretations
of the Act "unless the statute plainly compels a different result."  Nielsen v.
Burns & Morrill, Inc., 600 A.2d 1111, 1112 (Me. 1991).  The sole issue on
appeal is whether, pursuant to 39-A M.R.S.A. § 325(5) and former 39
M.R.S.A. § 110(2), repealed by P.L. 1991, ch. 885, § A-7, an employer may
be required to pay an employee's pre-mediation attorney fees when it
retains counsel prior to mediation, but the employer's counsel does not
attend the mediation.  We conclude that the Board's interpretation in this
case is consistent with the plain language of former section 110.  Section
110 provides that pre-informal conference fees are available if an employer
was represented "at that stage."  Id.  The phrase "at that stage" is
sufficiently broad to include the period prior to the mediation.
	[¶5]  Moreover, former section 94-B, governing informal conferences,
	3. Representation.  In preparation for and at the [informal]
conference, the commission shall assure that competent
technical staff from the Office of Employee Assistants is available
to provide advice and assistance to the employee.

If at this stage the employer or insurer elects to be represented
by legal counsel, the employee is entitled to be similarly
represented by legal counsel of his choice, with all reasonable
attorney fees to be assessed against the employer.  If no adverse
party elects to be so represented, the employee retains the right
to secure legal counsel at his own expense.
39 M.R.S.A. § 94-B(3) (Supp. 1992), repealed by P.L. 1991, ch. 885, § A-7
(emphasis added).  The first paragraph of 94-B(3) discusses the entitlement
of the employee to seek assistance from the Office of Employee Assistants
"[i]n preparation for" the conference.  Id. (emphasis added).  The phrase "at
this stage" in the second paragraph, dealing with attorney fees, includes
"preparation for" the informal conference.
	[¶6]  Contrary to Newell's suggestion, the Board's interpretation is not
inconsistent with our decision in DeRice v. S.D. Warren Co., 1997 ME 84,
¶¶ 5-6, 694 A.2d 450, 452.  In DeRice, we addressed the application of
former section 110 to proceedings arising after the enactment of title 39-A
when the informal conference was replaced with mediation.  Id.  We
concluded that, because the Legislature did not intend to significantly alter{2}
employees' entitlement to employer-paid fees in cases involving pre-1993
injuries, and mediation is essentially equivalent to the former informal
conference procedure, the term "mediation" may be substituted for the
phrase "informal conference" for purposes of applying former 39 M.R.S.A. §
110 to proceedings after 1993.  Id.  Notwithstanding our discussion of
attorney representation "at the mediation," id., we did not address the
more specific issue raised in this appeal: whether an employer may be
required to pay an employee's pre-mediation attorney fees when the
employer is represented prior to mediation, but employer's counsel does
not attend the mediation. 
	[¶7]  We also do not agree with Newell's contention that the Board's
interpretation is inconsistent with the purpose of the statute.  As we stated
in DeRice, the purpose of the fee procedure in the mediation/informal
conference setting is "to encourage the parties to get together informally
without lawyers to enter into an informal, non-binding discussion of the
issues, and to equalize the playing field between employee and employer
when the employer elects to be represented by counsel." 1997 ME 84, ¶5,
694 A.2d at 452.  The Board could rationally have concluded in this case that
an employer who obtains the advice of counsel prior to mediation has an
unfair advantage over an employee who is unrepresented at the mediation,
regardless of whether the employer's counsel actually attends the mediation. 
The Board's interpretation could therefore be viewed as serving the purpose
of encouraging discussion of issues without the assistance of counsel and of
encouraging a more even playing field between employer and employee.
	The entry is:
			Decision of the Workers' Compensation Board

Attorneys for employee: Sheldon Tepler, Esq., (orally) Stephen Kottler, Esq. Thomas R. Downing, Esq. Hardy Wolf & Downing, P.A. P O Box 3065 Lewiston, ME 04243-3065 Attorneys for employer: Thomas Getchell, Esq., (orally) Ann Brandt-Meyer, Esq. Troubh, Heisler & Piampiano, P.A. P O Box 9711 Portland, ME 04104-5011
FOOTNOTES******************************** {1} An adjuster for Hanover Insurance Company appeared at the mediation on behalf of Newell. {2} If anything, subsection 325(5) expands the entitlement of employees to employer- paid attorney fees in cases involving pre-1993 injuries, by "trigger[ing] the deferral of the obligation to pay fees from 'the date of mediation,' instead of 'one week after informal conference' as required pursuant to former section 110, in cases in which the employer is not represented by counsel at the mediation." DeRice, 1997 ME 84, ¶5, 694 A.2d at 452.