Lamonica v. Holmes

SAUFLEY, Justice,

with whom DANA, Justice, joins, dissenting.

[¶ 10] I respectfully dissent. I do not believe that the Legislature intended the re-suit reached by the Court today, and I believe that the Court has ignored specific statutory language in reaching its conclusion.

[¶ 11] Because Lamonica declined to notify the Town of Skowhegan of his 1995 injury, I agree with the Court that the Town cannot be held responsible for payment to Lamoni-ca. Relying on previous decisions for its conclusions, however, the Court overlooks that same notice requirement in allowing Lamonica to recover from his former employer that portion of his benefit which is related to his injury while in the Town’s employment. The stark language of 39-A M.R.S.A. § 301 provides that “[proceedings for compensation under this Act, except as provided, may not he maintained unless a notice of the injury is given within 90 days after the date of injury.” 39-A M.R.SA. § 301 (Supp. 1997). Because Lamonica chose not to notify the Town of his injury within 90 days after he suffered a work-related injury, section 301 precludes Lamonica from seeking recovery for that portion of his injury from either the Town or his prior employer.

[¶ 12] Moreover, the Court declines to follow the teachings of Murray v. City of Augusta, 394 A.2d 1171, 1175 (Me.1978), the most similar case on point. When the employee there sought benefits from two employers but failed to join one of those employers, the Court did require a reduction of the benefits awarded to reflect the unjoined employer’s share of responsibility. Id. Concluding that Murray was' “decided pursuant to judge-made principles” prior to the enactment of the apportionment statute, 39 M.R.S.A. § 104-B, repealed and replaced by P.L.1991, ch. 885, §§ A-7, A-8 (codified as 39-A M.R.S.A. § 354 (Supp.1997)), the Court finds it inapplicable to the facts here.5 Ironi*186cally, the Court then concludes that the apportionment statute does not apply to the facts at bar. While I agree that the provisions of section 104-B apply only where “more than one insurer is responsible” for an incapacitating condition, I do not agree that Murray’s applicability is limited to situations expressly governed by the apportionment statute. As we have stated, we will not interpret statutory enactments as repealing our entrenched judicial interpretations of the Act in the absence of “express statutory language plainly showing a legislative intent to abrogate those prior decisions.” Bossie v. School Admin. Dist. No. 24, 1997 ME 233, ¶ 8, 706 A.2d 578, 581-82 (citations omitted). No such express statutory language was incorporated into the apportionment statute. Pursuant to Murray and the plain language section 301, because Lamonica failed to preserve his claim against the Town for his 1995 injury, he should be limited to a recovery for that portion of his incapacity attributable to his injury in 1977.

[¶ 13] The Court compounds the error by accepting the Board’s classification of the injury as “nonwork-related.” Such a classification finds no support in the language of the statute. There is no factual dispute that Lamonica suffered the recent injury while employed by the Town, during his workday, while engaging in his ordinary employment activities there. Nor is there any dispute that the Town is a covered employer who would be required to pay benefits but for the employee’s conscious decision not to provide the statutorily required notice. Nonetheless, because the statute expressly defines com-pensability with reference to notice, the Court somehow reaches the conclusion that “an injury is not ‘work-related’ if the employee does not provide notice of the injury .” The Court errs by equating the definition of a compensable injury -with the concept of work-related injury, when neither section 301 nor any other statutory provision supports that conclusion.

[¶ 14] Finally, not only is the Court’s conclusion not supported by statute, it eonsti-tutes questionable public policy. Lamonica’s own decision not to notify the Town has resulted, according to the Court’s decision today, in a complete shifting of responsibility for a 1995 work-related injury to an employer responsible for Lamonica’s injury 18 years ago. The Court too lightly dismisses the very real concern that an employee may now prevent his current employer from suffering the financial consequences of workplace injuries while still receiving complete benefits for those injuries. I believe the Court underestimates the problems that will result from its decision today. An employee may be highly motivated to protect a current employer from fiscal injury. Leaving in the hands of the employee and the current employer the opportunity to shift responsibility for a current injury entirely to a past employer is neither consistent with statutory language and intent nor sound public policy.

[¶ 15] I would vacate the decision of the Board.

. Although Murray was distinguished by the Court in Harding v. Sheridan D. Smith, Inc., 647 A.2d 1193, 1194 (Me.1994), because of the possibility in Murray of a later recovery against the employer not joined in the proceeding, the principles of separable responsibility of the employers articulated in Murray are nonetheless valid here. In contrast, Harding involved an employee who suffered a second injury while self-employed and not covered by the Act. Harding, 647 A.2d at 1194. Harding did not involve the failure to notify an employer that is so pivotal in this case, rather the result in Harding was driven by the policy considerations related to the Act’s treatment of self-employment. Accordingly, the unique facts there do not support the applicabili*186ty of its holding to the case at bar, and the Court’s reliance on Harding is misplaced.