Court Redefines 'Gradual Injury'

The Maine Supreme Court has just reversed Hearing Officer Stovall’s decision to award benefits and changed the law defining gradual injuries under the Workers' Compensation Act. Under the Court's new formulation, the date of a gradual injury is "the date on which the injury manifests itself," regardless of when the employee becomes aware of its compensable nature. Jensen v. SD Warren Co., 2009 ME 35 (decided April 7, 2009).

Jensen was laid off by SD Warren, and his last day of work was January 27, 2004. Jensen met with his attorney, Jim MacAdam, in June of 2006 for advice regarding a Social Security claim. At hearing, Jensen claimed that during that meeting he “became aware” that he had suffered a gradual injury while working at SD Warren. Jensen filed a petition claiming a gradual injury culminating on his last day of work, and SD Warren, represented by Attorney Tom Getchell of Troubh Heisler, raised the defenses of notice and statute of limitations.

HO Stovall refused to let Getchell cross-examine Jensen about his 2006 conversation with MacAdam. He found that a gradual injury occurred as of 1/27/04 and ruled that the notice and statute of limitations provisions were tolled by Jensen's "mistake of fact" that was not cured until his 2006 conversation with his attorney. SD Warren appealed, and the Court agreed with Getchell on three points and vacated the decision:

1. Under the prior case-law, the concept of a "gradual injury" was inconsistent with the concept of "mistake of fact," because the date of a gradual injury was the date the employee becomes aware of (1) the injury and (2) its compensable nature. Under that formulation, if Jensen was unaware that he had a work-related gradual injury until June 2006, the date of injury could not be 1/27/04.

The Court reverted to its 1976 formulation in Ross v. Oxford Paper that the date of a gradual injury is "the date on which the injury manifests itself," which may be entirely different from the date the employee was aware the injury was work-related for purposes of the "mistake of fact" excuse for late notice or filing.

2. By testifying on direct about his June 2006 conversation with his attorney, Jensen waived his attorney-client privilege and SD Warren should have been permitted to cross-examine him about that conversation.

3. HO Stovall’s findings were “internally inconsistent and inadequate to support” an award of 100% partial or total incapacity benefits.

The facts of each case will determine exactly when an "injury manifests itself." In Ross the injury became "manifest" when Ross first became disabled from working. A work-injury might not be manifest when the symptoms arise, as Ross had symptoms for years before his injury became manifest, but it might become manifest when it requires medical attention. That issue will constitute the battleground on which future gradual injury claims will be fought.

Let us know if you have any questions.

Kevin Gillis
Tom Getchell
Mike Richards
Dan Gilligan