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Dunphe v. O'Connor, et al.
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Decision:	1997 ME 147
Docket:	WCB-96-82 & WCB-96-346
Argued:	April 9, 1997
Decided:	July 11. 1997




	[¶1]  The employers, Thomas O'Connor and NPS Energy Services,
appeal from a decision of the Workers' Compensation Board granting a
request from NPS to clarify a prior decision.  We conclude that the Board
acted beyond its authority and exceeded the permissible bounds of
"clarification." Accordingly, we vacate the decision.
	[¶2]  The employee, Stephen Dunphe, suffered a work-related injury
in 1984 while employed by O'Connor, and a second work-injury in 1988
while employed by NPS.  The law in effect at the time of his 1984 injury
provided an annual adjustment for inflation or deflation with regard to
partial incapacity benefits.  39 M.R.S.A. § 55 (Supp. 1984), repealed by P.L.
1987, ch. 559, §§ B, 29.  In 1988, at the time of the second injury, the law
provided no adjustment for inflation or deflation.  P.L. 1987, ch. 559, §§ B,
30, repealed by Maine Workers' Compensation Act of 1992, P.L. 1991, ch.
885, § A-7.  In 1993 and 1994 Dunphe and NPS filed petitions for review
with the Board and NPS filed a petition for restoration seeking
reimbursement from O'Connor.  The Board granted the petitions on
February 15, 1995 and apportioned liability for Dunphe's ongoing incapacity
between the two dates of injury.   In the same decree, the Board stated: "No
cost of living adjustments are payable pursuant to McDonald [v. Rumford Sch.
Dist., 609 A.2d 1160, 1161 (Me. 1992)].  This finding is based on the
language in McDonald which speaks of injuries which contribute equally to
an earning incapacity."  The Board issued further findings of fact in June
1995, but did not reverse its conclusion with respect to the inflation
adjustments.  No appeal was taken from that decision.
	[¶3]  In November 1995, nearly five months after the Board acted on
the motion for findings of fact, NPS sent a letter asking the Board to "clarify"
whether the February 15, 1995 decision required that O'Connor's payments
to NPS be adjusted for inflation.  In response to the request of NPS in
January of 1996, the Board concluded that Dunphe was entitled to an
adjustment for his first date of injury, but ordered O'Connor to pay the
inflation adjustment directly to Dunphe, not to NPS.  In May, 1996 the
Board issued further findings of fact related to the January 16, 1996
"clarification."  O'Connor and NPS filed timely petitions for appellate review
from the decision and we granted both petitions pursuant to 39-A M.R.S.A. §
322 (Supp. 1996).
	[¶4]  O'Connor contends that the Board had no authority to alter its
decision in this case seven months after the last decision.  We agree.  As we
have stated:

Absent specific statutory authority, the Board may not reopen or
amend a final decision.  Wood v. Cives Constr. Corp., 438 A.2d
905, 908 (Me. 1981); Anania v. City of Portland, 394 A.2d 782,
784-85 (Me. 1978); Johnson v. Kostis Fruit Co., 281 A.2d 318,
320 (Me. 1971).  Such a rule ensures finality of workers'
compensation decisions and effectuates "the legislative desire
for speedy and summary disposition of workers' compensation
cases."  Wood, 438 A.2d at 908; Anania, 394 A.2d at 784-85. 
Guaranty Fund Mgt. Servs. v. Workers' Comp. Bd., 678 A.2d 578, 582-83
(Me. 1996).  Because no appeal was taken from the February 15, 1995
decision, that decision is valid and final and the Board is without the ability
to reverse or amend that decision absent express statutory authority to do
	[¶5]  NPS contends that the Board's January 16, 1996 decision was
authorized pursuant to 39-A M.R.S.A. § 318 (Supp. 1996).  Section 318
provides, in pertinent part: 

Clerical mistakes in decrees, orders or other parts of the record
and errors arising from oversight or omission may be corrected
by the board at any time of its own initiative, at the request of
the hearing officer or at the motion of any party and after notice
to the parties.  During the pendency of an appeal, these mistakes
may be corrected before the appeal is docketed in the Law Court
and thereafter, while the appeal is pending, may be corrected
with leave of the Law Court.

39-A M.R.S.A. § 318.  NPS contends that the Board's February 15, 1995
decision is ambiguous concerning whether O'Connor must pay an inflation
adjustment to NPS.  NPS also contends that the Board should be accorded
deference in determining the existence of a "clerical error . . . arising from
oversight or omission" in a Board decision.  
	[¶6]  Although we agree that the Board should be accorded deference,
there is no reasonable basis for finding a clerical mistake in the February 15,
1995 decision.  The original decision unambiguously states that "[n]o cost of
living adjustments are payable pursuant to McDonald." In the absence of an
appeal, that decision is final and must stand.
	The entry is:

Decisions of the Workers'
Compensation Board dated
January 16, 1996 and May
14, 1996 are vacated.
Attorneys for Employee: James J. MacAdam, Esq. Mary Gay Kennedy, Esq. (orally) McTeague, Higbee, MacAdam, Case, Watson & Cohen P. O. Box 5000 Topsham, Maine 04086-5000 Attorneys for Employers: Keith A. Powers, Esq. Carl W. Tourigny, Esq. Nelson J. Larkins, Esq. (orally) Preti, Flaherty, Beliveau & Pachios 443 Congress Street Portland, Maine 04112-7410 (for T. O'Connor & American Int'l) Thomas R. Kelly, Esq. (orally) Thomas Quartararo, Esq Robinson, Kriger & McCallum P. O. Box 568 Portland, Maine 04112-0568 (for NPS & Continental)