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DIPIETRO v. J.J. NISSEN BANKING CO.11/10/1992
Employee Rudolph DiPietro appeals from a decision of the Appellate Division of the Workers' Compensation Commission affirming a decision of the Commission granting J.J. Nissen Baking Company's petition for award relating to DiPietro's 1987 injury. We agree with DiPietro's contention that Nissen's petition is barred by the applicable statute of limitations and, accordingly, we vacate the decision of the Appellate Division.
DiPietro sustained a compensable back injury in January of 1985 while working for Nissen. He returned to work and again sustained a compensable back injury in March of 1987. Pursuant to the early-pay system of the workers' compensation statute, see 39 M.R.S.A. § 51-B (1989), Nissen filed a memorandum of payment (MOP), see section 51-B(5), in July 1987 accepting DiPietro's claim pending investigation. The MOP listed January 1985 as the date of injury and July 1987 as the date of incapacity. Nissen did not file a first report of injury or a notice of controversy.
In March 1988, Nissen filed a petition for review of incapacity for the 1985 injury . In April 1988, Nissen filed a motion for reduction of benefits for the 1985 injury. On October 26, 1989, Nissen filed a petition for award for the 1987 injury. The three petitions were consolidated and heard on October 30, 1989. The commissioner denied the petition for reduction of benefits
The Appellate Division affirmed the decision of the commissioner except as relating to the setoff provision, concluding that the setoff applies only to the 1987 injury , and remanded for an apportionment of DiPietro's disability between the two injuries. We granted DiPietro's petition for appellate review. See 39 M.R.S.A. § 103-C (1989).
Because the Appellate Division is an intermediate tribunal, we review the decision of the commissioner directly for legal error. Harvie v. Bath Iron Works, 561 A.2d 1023, 1024 (Me. 1989). DiPietro first contends that the Commission should not have entertained Nissen's petition for award. He argues that a petition for award provided for in 39 M.R.S.A. § 94 (1989) is a remedy provided exclusively for employees and that Nissen, as the employer, has no standing to bring such a petition. We disagree. The plain language of section 94 and section 96-A reveals a legislative intent to allow an employer to file a petition for award of compensation. Although a petition for award is a remedy usually used by an employee to determine the employee's right to benefits resulting from a work-related injury and is not a petition normally filed by an employer, 39 M.R.S.A. § 96-A (1989) provides that " ny interested party may seek a determination of his rights under this Act by filing with the commission any petition authorized under the Act." (Emphasis added.) Section 94 provides that "any party in interest may file . . . a petition for award of compensation." Because Nissen, as the employer, has an interest in determining the extent to which DiPietro's disability is attributable to the 1987 injury so as to obtain the pension offset of section 62-B of the Act, a provision not applicable to the disability attributable to the 1985 injury, Nissen is an interested party within the plain meaning of sections 94 and 96-A of the Act, and, therefore, has standing to bring the petition for award of compensation.
Even though as an employer Nissen is not precluded from bringing the petition pursuant to section 94, we agree with DiPietro that Nissen's October 1989 petition for award on the March 1987 injury is barred by 39 M.R.S.A. § 95 (1989), the Section 95 provides that a petition brought under section 94 must be filed within two years after the date of injury. Nissen contends, however, and the Appellate D
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