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Libby v. Boise Cascade
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Decision:	1998 ME 89
Docket:	WCB-96-838	
Argued:	March 2, 1998
Decided:	April 30, 1998	




	[¶1]  Boise Cascade Corporation appeals from a decision of the
Workers' Compensation Board awarding its employee the protection of the
Act.  Boise contends that because it voluntarily paid all compensation
benefits that the employee is entitled to receive, there was no controversy
over the payment of benefits and the Board erred in granting the petition. 
We agree with the Board, however, that because Boise made payments
"without prejudice," the employee is entitled to seek a protective decree
establishing Boise's responsibility for her injury. 
	[¶2]  In July 1994, Margaret Libby notified Boise Cascade that she had
suffered a work-related carpal tunnel injury.  Boise filed a first report of
injury and a notice of controversy disputing the injury, and voluntarily paid
incapacity benefits for all of Libby's lost time from work as a result of the
injury.  Boise filed a memorandum of payment with the Board stating that
benefits had been paid "pending investigation" and "without prejudice." 
Libby does not dispute that Boise has paid all compensation due her. 
Because Boise never accepted the compensability of her carpal tunnel
condition, however, Libby filed a petition for award seeking protection of the
Act.  The Board granted Libby's petition, concluding that although she had
been fully compensated, Libby was entitled to seek a determination of the
compensability of her injury.  We granted Boise's petition for appellate
review pursuant to 39-A M.R.S.A. § 322 (Supp. 1997).
	[¶3]  The statutory bases for petitions for protection of the Act are
found at 39-A M.R.S.A. §§ 305 and 307(1) (Supp. 1997).  Section 305
provides, in pertinent part, that "[i]n the event of a controversy as to the
responsibility of an employer for the payment of compensation, any party in
interest may file in the office of the board a petition for award of
compensation . . . ."  39-A M.R.S.A. § 305 (emphasis added).  Subsection
307(1) then provides that "[a]ny interested party may seek a determination
of rights under this Act by filing with the board any petition authorized
under this Act."  
	[¶4]  Boise contends that parties may bring petitions for award only
when there is a "controversy" concerning "the payment of compensation,"
pursuant to 39-A M.R.S.A. § 305.  Section 305, however, does not refer
simply to controversies over compensation payments, but controversies
concerning the "responsibility" of employers to pay compensation.  The
inclusion of the word "responsibility" demonstrates the Legislature's intent
to permit petitions for protection when, as here, an employer has paid
benefits in full, but has not accepted "responsibility" for so doing.  
	[¶5]  The Board's interpretation of section 305 is also supported by
our previous interpretation of its predecessor, former 39 M.R.S.A. §§ 94,
96-A (1989), repealed by P.L. 1991, ch. 885, § A-7, which contained
virtually identical language.  In Lamson v. Central Maine Power Co., 549 A.2d
377, 378 (Me. 1988), the employee, Lamson, filed a petition for protection
of the Workers' Compensation Act and the occupational disease law, but did
not seek benefits because he had not suffered any incapacity as a result of his
injury.  The former Workers' Compensation Commission Appellate Division
concluded that because Lamson had not suffered a cognizable harm, he was
not entitled to protection of the Act.  Id.  We vacated the decision of the
Appellate Division, stating that
	[h]ad Lamson and CMP reached an agreement that
Lamson's hearing loss is work-related and filed a memorandum
of that agreement with the Commission, the commissioner could
have entered a protective decree based on such a memorandum,
without the necessity of Lamson filing a petition for award. 
Since CMP did not agree that Lamson's hearing loss was work-
related, Lamson had to file a petition for award in order to
establish that fact.

. . . . 

	. . . Lamson is, therefore, entitled to the res judicata
consequences of the decision by the commissioner that . . . he
suffered a work-related injury of loss of bilateral hearing[.]
Id. at 378-79 (emphasis added) (citations omitted) (footnotes omitted).  
	[¶6]  Boise contends that Lamson is distinguishable because it involved
the "early pay system," and not title 39-A, which is designed to encourage
informal nonbinding payment of claims.  Lamson was decided before the
enactment of section 305.  The Legislature had an opportunity to address
Boise's concerns when it enacted section 305, and yet it used language that
is almost identical to the language we interpreted in Lamson.  We will not
treat the Legislature as repealing prior entrenched interpretations of
statutory language absent express language to the contrary.  See Tripp v.
Philips Elmet Corp., 676 A.2d 927, 930-31 (Me. 1996).  We therefore
cannot conclude that the statute plainly compels a contrary conclusion to
that reached by the Board in this case.  See Nielsen v. Burns & Morrill, Inc.,
600 A.2d 1111, 1112 (Me. 1991) (the Court must affirm the decision of the
Board "unless the statute plainly compels a different result.").{1} 
	[¶7]  Finally, Boise contends that the Board's result is precluded by
our decision in Burbank v. H.D. Goodall Hosp., 656 A.2d 1209 (Me. 1995). 
We disagree.  In Burbank, the employer did not dispute that the employee
suffered a work-related back injury and, in fact, paid benefits for that injury. 
Id. at 1210-11.  The employee, however, later suffered neck and arm
problems that she contended were caused by her altered carriage due to the
back injury, and were therefore compensable as sequelae to her prior back
injury.  Id.  Although she did not seek additional benefits, the employee filed
a petition for protection of the Act because the employer had not accepted
responsibility for the neck and arm sequelae.  Id.  The Board dismissed the
petition and we affirmed.  Id. 
	[¶8]  Critical to our decision in Burbank was the fact that the employer
had accepted responsibility for the original injury.  The decision denying
access to further protection of the Act was expressly limited to situations
involving work-related sequelae or other ancillary decisions.  Because an
employee's work-related injury is rarely static, permitting petitions for
protection arising from changes in an employee's medical condition, in the
absence of a controversy over benefits or the liability of the employer for the
underlying injury, could greatly increase the rate of filing of protective
decrees.  Moreover, establishing a connection between a work-injury and
subsequent sequelae depends more on medical evidence and less on
eyewitness accounts and other work-place specific evidence which are more
easily lost with the passage of time.  Accordingly, we decline to extend our
holding in Burbank to cases where the employee seeks an initial
adjudication of the responsibility for an allegedly work-related injury.
	The entry is:
The decision of the Workers' Compensation
Board affirmed.
Attorney for employee: Ralph L. Tucker, Esq., (orally) McTeague, Higbee, MacAdam, Case, Watson & Cohen P O Box 5000 Topsham, ME 04086-5000 Attorney for employer: John H. King, Jr., Esq., (orally) Norman, Hanson & DeTroy P O Box 4600 Portland, ME 04112-4600
FOOTNOTES******************************** {1} Boise also contends that its voluntary payments without prejudice satisfied the two- year statute of limitations, 39-A M.R.S.A. § 306 (Supp. 1997), and therefore, a protective decree is not necessary to toll the statute of limitations. The Board was not persuaded by this argument. Although we have not determined whether payments made "without prejudice" satisfy the two-year statute pursuant to 39-A M.R.S.A. § 306, because we conclude that the employee may seek a protective decree even where voluntary payments have been fully tendered, we do not reach this issue.