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DIPIETRO v. J.J. NISSEN BANKING CO.11/10/1992
ivision held, that the two-year statute of limitations never began to run because Nissen never filed a first report of injury and, alternatively, that the benefits received by DiPietro tolled the running of the statute.
As with statutes of limitations generally, section 95 insures against the prosecution of stale claims. There are two exceptions to the limitations statute, both designed to protect the interests of the employee: (1) the statute does not begin to run until the employer files a report of first injury ; and (2) payments made to the employee toll the statute. In this case Nissen, as the employer, cannot invoke either provision to prevent the running of the two-year statutory period.
Section 95 explicitly provides that the two-year period in which the employee may file a claim does not begin to run until the employer files a report of first injury . The filing requirement triggers action by the commission for the benefit of the employee to insure that the employee has notice of available options and the two-year limitation for filing claims. Stickles v. United Parcel Serv., 554 A.2d 1176, 1179 (Me. 1989); 39 M.R.S.A. § 94-A(1) (1989). The employer's failure to file the first report of injury works a disadvantage to the employee that justifies the delayed running of the statute. No analogous policy considerations support relief to employers from the statute of limitations because of the employer's failure to file the first report of injury. Indeed, to construe section 95 to allow the employer to solely determine when the period of limitations begins to run against itself based on when it filed the first report of injury, leaves the employee unprotected against litigating stale issues and contravenes the letter and spirit of the Act.
The Appellate Division also held that the statute of limitations was tolled because DiPietro was receiving payments from Nissen. The tolling provision protects the employee from being lulled into abandoning or failing to pursue his right to file a petition for award by the receipt of voluntary payments from the employer. See Deabay v. St. Regis Paper Co., 442 A.2d 963, 964 (Me. 1982). There is no similar policy reason that the tolling provision be applied to a section 94 petition filed by the employer. Nissen had knowledge of both injuries to DiPietro and it is charged with knowledge of section 62-B, the provision allowing pension benefits to be partially set off against payments attributable to the 1987 injury . To allow an employer who does not file a notice of controversy, see 39 M.R.S.A. § 51-B(7), to rely on payments it is making under the early pay system for the purpose of tolling the statute of limitations would grant to that employer an unlimited time to return to the commission to contest the details of an employee's claim by filing a petition for an award. This would unfairly deprive the employee of the protection of the statute of limitations against the litigation of stale issues. Such a result is contrary to the purposes of the early payment system that is designed to encourage prompt payment of claims and final resolution of those claims. Wentworth v. Manpower Temporary Servs., 589 A.2d 934, 936-37 (Me. 1991); see also Stickles, 554 A.2d at 1179.
The entry is:
Judgment vacated. Remanded to the Appellate Division for remand to the Workers' Compensation Commission for entry of an order denying the petition for award.
All concurring.
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