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Wasowski v. M.M.C.
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Decision:		1998 ME 229
Docket:		WCB-97-561
Argued:		September 9, 1998
Decided :		October 21, 1998




	[¶1]  The employer, Maine Medical Center, ("MMC"), appeals from
an order of the Workers' Compensation Board Abuse Investigation Unit
granting a petition for forfeiture and imposing a monetary penalty against
MMC.  MMC contends that it was denied its rights to due process by the
manner in which the case was processed and decided by the Abuse Unit. 
Because we agree with MMC that the Board should not have granted the
petition and assessed a penalty without MMC having the opportunity to
submit a written position paper in response to the position paper submitted
by the employee, we vacate the order assessing the penalty. 
	[¶2]  The employee, Brenda Wasowski, suffered a work-related injury
on December 3, 1996, while employed by MMC.  An agreement was reached
at mediation to pay workers' compensation benefits.  When payment of the
benefits was delayed, the Supervisor of the Payments Division, Marlene
Swift, filed a petition for forfeiture pursuant to 39-A M.R.S.A. § 324 (Supp.
1997),{1} with the Abuse Unit on Wasowski's behalf.  The Abuse Unit issued a
scheduling order providing deadlines for each party to file a position paper
in regard to the requested forfeiture.  The employee was required to file a
position paper on or before September 2, 1997.  MMC's deadline to file a
responsive position paper was October 2.  Acting without counsel, the
employee filed a position paper, but failed to send a copy of it to MMC. 
MMC had sent a letter to Marlene Swift providing an explanation of the
reasons for its delay in payment.  The letter was a follow-up to a telephone
conversation with Marlene Swift of the previous day, and was not in
response to the paper filed by the employee.   The Abuse Unit, however,
considered MMC's letter as a position paper, and on September 11, prior to
the date that MMC's position paper was due, the Abuse Unit issued an order
granting the petition for forfeiture and assessing $2,950 in penalties against
MMC.  The Abuse Unit concluded that the technical difficulties and
miscommunications set out in MMC's letter to Marlene Swift did not
constitute "circumstances beyond the employer's control" to justify late
payment.  39-A M.R.S.A. § 324(2).  We granted MMC's petition for appellate
review pursuant to 39-A M.R.S.A. § 322 (Supp. 1997).
	[¶3]  MMC contends, inter alia that because the Board "jumped the
gun" and issued its decision prior to the expiration of MMC's time-period to
file a position paper, MMC was denied due process.  The Board rules
	The Abuse Investigation Unit will investigate the
allegations contained in the Petition for Forfeiture.  As part of its
investigation, the Abuse Investigation Unit shall require any and
all interested parties to submit written evidence concerning the
petition, including but not limited to position papers,
depositions and affidavits.  The Abuse Investigation Unit will set
forth a schedule for the submission of such evidence by the
parties.  Absent extraordinary circumstances, no testimonial
hearing will be held.
Me. W.C.B. Rule ch. 15, § 6.2.C (1997).
	[¶4]  The Board's decision to treat MMC's letter as a position paper
and its rush to judgment before the deadline passed for receipt of MMC's
position paper violated the Board's own rule.  The rule violation denied
MMC the opportunity to present a written argument in response to the
employee's allegations set out in a position paper that MMC did not receive. 
The letter written by MMC that the employee contends the Abuse Unit
properly considered as a position paper, was not addressed to the Board,
bears no heading to identify it as a position paper, and plainly states that it
was intended as a follow-up to a telephone conversation with Marlene Swift. 
Moreover, MMC intended to make additional arguments in its position
paper that were not included in its letter to Marlene Swift.  As conceded by
the Board in its amicus brief, "the Abuse Unit's process could have been
better in this particular case and would have been better if both due dates
[for filing position papers] had passed." 
	[¶5]  The Board erred in treating MMC's letter to Marlene Swift as a
responsive pleading.   We vacate the decision of the Abuse Unit and remand
with instructions to provide MMC with an opportunity to file a responsive
pleading for the purpose of making a showing of "extraordinary
circumstance" justifying the delay in payment of benefits to Wasowski.{2}
	The entry is:
The decision of the Workers' Compensation
Board Abuse Unit is vacated.  Remanded to the
Workers' Compensation Board Abuse Unit for
further proceedings consistent with this

Attorney for employee: Jonathan S. R. Beal, Esq., (orally) Fontaine & Beal, P.A. P O Box 7590 Portland, ME 04112 Attorney for employer: James A. McCormack, Esq., (orally) Verrill & Dana, LLP One Portland Square Portland, ME 04112-0586 Attorney for amicus curiae: Julia A. Finn, General Counsel Workers' Compensation Board 27 State House Station Augusta, ME 04333-0072
FOOTNOTES******************************** {*} Saufley, J. sat at oral argument and participated in the initial conference, but participated no further. {1} 39-A M.R.S.A. § 324 provides in pertinent part: 1. Order or decision. The employer or insurance carrier shall make compensation payments within 10 days after the receipt of notice of an approved agreement for payment of compensation or within 10 days after any order or decision of the board awarding compensation. . . . 2. Failure to pay within time limits. An employer or insurance carrier who fails to pay compensation, as provided in this section, is penalized as follows. A. Except as otherwise provided by section 205, if an employer or insurance carrier fails to pay compensation as provided in this section, the board shall assess against the employer or insurance carrier a forfeiture of up to $200 for each day of noncompliance. If the board finds that the employer or insurance carrier was prevented from complying with this section because of circumstances beyond its control, no forfeiture may be assessed. . . . . (2) If a forfeiture is assessed against any employer or insurance carrier under this subsection on petition by an employee, the employer or insurance carrier shall pay reasonable costs and attorney's fees related to the forfeiture, as determined by the board, to the employee. . . . . 39-A M.R.S.A. § 324. {2} MMC also contends in general that the way the Abuse Unit processes cases in which there is a petition for forfeiture deprives the employer of its rights to due process. Because we remand the case to the Workers' Compensation Abuse Unit for further proceedings, we do not address those contentions beyond the extent they are addressed in this opinion.