The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC , ss. DOCKET NO. AP-02-69
DORIS CLARK, et al.,
Plaintiffs
Vv. DECISION ON APPEAL
STATE OF MAINE WORKERS’
COMPENSATION BOARD,
Defendant
This matter comes before the court for review pursuant to MLR. Civ. P. 80C and
5 M.R-S.A. § 8058 and 11101. On appeal is the action or inaction of the Maine Workers’
Compensation Board (“Board”) with regard to extension of payments for partial
disability claims. Because the court finds that the Board failed to act as required by
statute, the appeal will be granted and the matter will be remanded.
Discussion
Title 39-A M.R.S.A. § 213(4) provides:
Effective January 1, 1998 and every January 1“ thereafter, the 260-week
limitation contained in subsection 1 must be extended 52 weeks for every year
the board finds that the frequency off such cases involving the payment of
benefits under section 212 or 213 is no greater than the national average based on
frequency from the latest unit statistical plan aggregate data for Maine and ona
countrywide basis, adjusted to a unified industry mix.
Each year since 1998 the Board has hired an actuarial service to determine if the
frequency of cases exceeds the national average. The procedure selected by the Board
calls for the Board to review the report from the actuary and decide whether or not to
propose a rule which would receive public hearing before a final vote on the decision to
extend. In 1998, the Board determined that the 52-week extension should not be
granted. In 1999 and 2000, the extension was granted by rule. In 2001, after drafting a
proposed rule and holding public hearings, the final vote by the Board to extend the
benefits failed. That vote was subject to appeal to the Superior Court and from there to
the Law Court. Lingley v. Maine Workers’ Comp. Bd., 2003 ME 32, 819 A.2d 327. The Law
Court upheld the decision of the Superior Court that the appellants had failed to make a
timely appeal, but also noted that the Board’s vote on the motion to adopt the proposed
rule, which failed, was an act — not a refusal or failure to act.
The present case differs from Lingley both on its facts and its result. The present
case involves consideration of extension of the partial disability payments for 2002.1
On August 20, 2002, the Board met to consider the actuarial reports regarding the
claims for 2002 and 2003. After discussion, Director Kirkpatrick moved to accept the
actuarial reports and send them out for public comment with a proposed rule as the
first step in adopting the reports and extending the benefits. This motion failed on a
vote of 3-4. (Record, p. 8). After further discussion, a motion was made to table the
reports and to set up a subcommittee to return to the Board with goals and criteria
concerning the reports. This motion to table passed 7-0. (Record, p. 10) No further
action was taken by the Board in 2002 or any other time since with regard to the
required 2002 finding.
The intervenor* maintains that the Board took final agency action on August 20,
2002, when it declined to reach a majority on the question of whether to accept the
reports and send a proposed rule out for public hearing. On the other hand, the
petitioner argues that the Board did not act in 2002 because they failed to find whether
the frequency of cases exceeded the national average, as they are required to do by
* The Board also had before it the same question for 2003, but that decision was not appealed.
* The Workers’ Compensation Coordinating Council.
2
statute. The court agrees with the petitioners. The intervenor relies heavily on Lingley
for the proposition that the Board has acted by means of its initial vote. However, the
case can be distinguished by the important fact that in Lingley the vote of the Board
which failed was the final act of the Board on whether or not the benefits would be
extended. In the present case, the Board’s vote occurred during its first consideration of
the issue when deciding whether to send the matter for public comment. The vote
simply was to table the issue pending receipt of the subcommittee report. In other
words, it was not adoption of the extension which failed, it was a failure to even finish
consideration of the reports as required by statute. Lingley does not control.
Since the court finds that the Board failed to act as required by statute, the entry
will be:
Appeal GRANTED; REMANDED to the Maine Workers’
Compensation Board for further action consistent with this opinion.
Dated: September , 2003 dite
S. Kirk Studstrup I
Justice, Superior Court
Date Filed __ 9/16/02 Kennebec
Docket No. AP02-69
County
DUMMY DOCKET SHEET
Action Petition for Review
80C
Doris Clark, et als VS. Maine Workers’ Comp. Board
Plaintiff’s Attorney Defendant’s Attorney
James g. Fongemie, Esq. John C.Rohde, Esq. Paul Stern, AAG
Four Union Park 27 State House Station
P.O. Box 5000
Augusta, Maine 04333-0027
Kevin M. Gillis, Esq. (Workers' Comp.)
511 Congress St., PO Box 9711
Portland, Maine 04104-5011
Topsham, Maine 04085-5000
Date of
Entry
9/16/02 Complaint and Petition for Review of Final Agency Action and/or Failure
or Refusal of Agency to Act, filed. s/Fongemie, Esq.
10/4/02 Statement of Respondent, Maine Workers' Compensation Board, Pursuant to
5 M.R.S.A 11005
10/7/02 Certificate of Administrative Record, filed. s/Rohde,Esq.
10/9/02
Notice of briefing schedule mailed to attys of record.
Motion to Intervene, filed. s/Gillis, Esq.
Memorandum in Support of Motion to Intervene, filed. s/Gillis, Esq.
10/23/02 Answer, filed. s/P. Stern, AAG (filed 10/21/02)
11/7/02 ORDER ON MOTION TO INTERVENE, STUDSTRUP, J.
Motion granted. WCCC: is granted permission to interevene as a party.
Copies mailed to attys of record.
11/14/02 Motion to Stay the Briefing Schedule, filed. s/Fongemie, Esq.
12/16/02 MOTION TO STAY BRIEFING SCHEDULE, Studstrup, J.
Motion granted and briefing schedule is stayed pending decision of the
Court in Lingley vs. MWCB.
Copies mailed to attys of record.
3/20/03 Letter to Justice Strudstup requesting further stay, filed. s/Fongemie, Esq
REQUEST GRANTED. Briefing schedule further stayed.
Copies mailed to attys of record.
4/18/03 Letter from attorney Fongemie indicating that briefing schedule should
now issue.
Notice of briefing schedule mailed to attys of record.
5/27/03 Plaintiffs'
Brief in Support of Complaint and Petition for Review of
Final Agency Action and/Or Failure or Refusal of Agency to Act, filed.