LISTER v. ROLAND'S SERVICE
2/12/1997
[ 1] The employee, Terry W. Lister, appeals from a decision of the Workers' Compensation Board denying his petitions for award and fix related to an April 27, 1987 low-back injury. The injury occurred while his employer, Roland's Services, was insured by Hanover of Maine. The Board concluded that Lister's petitions relating to the April 1987 injury were barred by the statute of limitations. 39 M.R.S.A. § 95 (Supp. 1992). The Board also denied Lister's motion for findings of fact and we granted his petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1996). We conclude as a matter of law that the employer failed to meet its burden of proof to show that Lister's petitions were time-barred for his April 27, 1987 injury, and therefore we vacate the Board's decision with respect to that injury.
[ 2] At the date of Lister's petition for award in 1992, section 95 provided, in pertinent part:
Any employee's claim for compensation under this Act is barred
unless an agreement or a petition as provided in Section 94 is
filed within 2 years after the date of the injury, or, if the
employee is paid by the employer or the insurer, without the
filing of any petition or agreement, within 2 years of any
payment by such employer or insurer for benefits otherwise
required by this Act. The 2-year period in which an employee
may file a claim does not begin to run until the employee's
employer, if the employer has actual knowledge of the injury,
files a first report of injury as required by section 106 of
the Act. . . . No petition of any kind may be filed more than 6
years following the date of the latest payment made under this
Act. For the purposes of this section, payments of benefits
made by an employer or insurer pursuant to section 51-B or 52
are considered payments under a decision pursuant to a
petition, unless a timely notice of controversy has been
filed.
39 M.R.S.A. § 95 (Supp. 1992) (emphasis added).
[ 3] As originally enacted in 1983, the last sentence of section 95 provided that " or the purposes of this section, payments of benefits made by an employer or insurer pursuant to section 51-B shall be considered payments under a decision unless a timely notice of controversy has been filed." P.L. 1983, ch. 587, § 1. In 1989 the Legislature amended the last sentence of section 95 to provide that "payments of benefits made by an employer or insurer pursuant to section 51-B or 52 are considered payments under a decision pursuant to a petition unless a timely notice of controversy has been filed." P.L. 1989, ch. 256, § 4 (effective September 30, 1989) (emphasis added). Lister contends that, pursuant to the last sentence of section 95, the payment of chiropratic treatment following the April 1987 injury constituted a "payment of benefits made by an employer or insurer pursuant to section 51-B or 52" and therefore must be "considered payments under a decision pursuant to a petition" obviating the two-year statute of limitations. Rutter v. Allstate Auto. Ins. Co., 655 A.2d 1258, 1259-60 (Me. 1995); Danforth v. L.L. Bean, Inc., 624 A.2d 1231, 1232 (Me. 1993); Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814, 816 (Me. 1980). We agree that Lister is entitled to the protection of the 1989 amendment as long as his claim had not been extinguished at the time of the effective date of that amendment. See P.L. 1989, ch. 256, § 4 (effective September 30, 1989). Because the effective date of the 1989 amendment occurred later than two years after the April 27, 1987 injury, Lister must have received payment of medical expenses for that injury prior to April 27, 1989 in order to satisfy the two-year statute.
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