Maine Employers Mut. Ins. Co. v. State of Maine, Workers' Comp.Bd.

STATE OF MAINE , SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. . DOCKET NO. AP-03-29

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MAINE EMPLOYERS MUTUAL

INSURANCE COMPANY,

Petitioner

Vv. DECISION AND ORDER

STATE OF MAINE WORKERS’

COMPENSATION BOARD,

Respondent

and

PAMELA D’ANDREA-TRIPP, ‘MAY 26 004

Party-in-Interest

This matter is before the court on petition of a workers ‘compensation insurance

carrier for judicial review in accordance with 5 M.R.S.A. § 11002 and MLR. Civ. P. 80C.

The Workers’ Compensation Board assessed a penalty against an employee who

had received a workers’ compensation award for intentional misrepresentation but .

refused to order repayment of the compensation paid. The petitioning insurance

company seeks repayment of the compensation.

In 1996, Pamela D’Andrea-Tripp was assigned to work at a Regional Waste

Systems recycling center pursuant to the work release program through the Windham

Correctional Facility. On August 19, 1996, she was in an accident at her workplace,

wherein she was sorting cans when her arm got caught between some dumpsters,

apparently as a result of the activities of a forklift operator, causing her to fall and

become pinned between two bins. She bruised her left arm and face and suffered some

compression in the buttocks area. Ms. D’Andrea-Tripp received benefits from her

employer/insurer from the date of the injury until October of 2001 when the benefits

were discontinued. At the time of her injury, Ms. D’Andrea-Tripp did not mention her

extensive history of back problems to the physicians and surgeons who treated her.

Ms. D’Andrea-Tripp’s employer filed a Petition for Penalties and repayment of

all weekly benefits on October 24, 2001, pursuant to 39-A M.R.S.A. § 360. Evidentiary

hearings were held on August 1* and November 18" 2002. The Chief Hearing Officer

issued a Decision dated April 4, 2003 finding that Ms. D’Andrea-Tripp had engaged in

intentional misrepresentation and fined her $1,000 (penalty) but did not order

repayment of benefits.

On May 22, 2003, Maine Employers Mutual Insurance Company (“MEMIC”)

timely filed a Petition for Review of Final Agency Action pursuant to 5 M.R.S.A. § 11002

and M. R. Civ. P. 80C averring errors of law, abuse of discretion, a decision

unsupported by the evidence and a failure to provide sufficient findings of record.

When the decision of an administrative agency is appealed pursuant to M.R. Civ.

P. 80C, this Court reviews the agency’s decision directly for abuse of discretion, errors

of law, or findings not supported by the evidence. Centamore v. Dep’t of Human Services,

664 A.2d 369, 370 (Me. 1995). “An administrative decision will be sustained if, on the

basis of the entire record before it, the agency could have fairly and reasonably found

the facts as it did.” Seider v. Board of Exam’r of Psychologists, 2000 ME 206 9, 762 A.2d

551, 555 (Me. 2000) (citing CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, [6, 703

A.2d 1258, 1261 (Me. 1997)). In reviewing the decisions of an administrative agency, the

Court should “not attempt to second-guess the agency on matters falling within its

realm of expertise” and the Court’s review is limited to “determining whether the

agency’s conclusions are unreasonable, unjust or unlawful in light of the record.”

Imagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991). The focus on

appeal is not whether the Court would have reached the same conclusion as the agency,

but whether the record contains competent and substantial evidence that supports the

result reached by the agency. CWCO, Inc. v. Superintendent of Ins., 703 A.2d 1258, 1261.

“Inconsistent evidence will not render an agency decision unsupported.” Seider, 762

A.2d 551 (citations omitted). The burden of proof rests with the party seeking to

overturn the agency’s decision, and that party must prove that no competent evidence

supports the Board’s decision. Id.

Factual determinations must be sustained unless shown to be clearly erroneous.

Imagineering, 593 A.2d at 1053 (noting that the Court recognizes no distinction between

the clearly erroneous and substantial evidence in the record standards of review for

factual determinations made by administrative agencies). “A party seeking review of

an agency’s findings must prove they are unsupported by any competent evidence.”

Maine Bankers Ass’n v. Bureau, 684 A.2d 1304, 1306 (Me. 1996) (emphasis added).

“When the dispute involves an agency’s interpretation of a statute administered

by it, the agency’s interpretation, although not conclusive on the Court, is accorded

great deference and will be upheld unless the statute plainly compels a contrary result.”

Maine Bankers Ass’n, 684 A.2d at 1306 (citing Centamore v. Department of Human Services,

664 A.2d 369, 370 (Me. 1995)).

Petitioner argues that respondent’s decision denying any repayment of

compensation to petitioner is based upon insufficient findings, was an abuse of

discretion, contained errors of law and was unsupported by the evidence. Petitioner

also argues that this case involves an abuse of discretion similar to that in a case decided

in this court in 1991. North End Marine & Fiberglass Engineering, Inc. v. Workers

Compensation Commission, CV-90-1645 (Me. Super. Ct. Cumberland County, May 31,

1991) (Alexander, J.).

Asserting that the Board had clearly established that Ms. D’Andrea-Tripp was

not truthful when she failed to disclose her prior history of back problems, petitioner

asserts that the Board failed to make sufficient findings on the issue of whether Ms.

D’Andrea-Tripp committed fraud. Petitioner asserts that this court may grant relief

when an agency fails to make sufficient findings upon which to base appellate review.

Citing Harrington v. Town of Kennebunk, 459 A.2d 557, 562 (Me. 1983) (“the remedy for

an agency's failure to act on all matters properly before it or to make sufficient and clear

findings of fact is a remand to the agency for findings that permit "meaningful judicial

review.") quoting P.H. Chadbourne & co. v. Inhabitants of the Town of Bethel, 452 A.2d 400,

408 (Me. 1982). Without these findings, petitioner asserts, this court cannot conduct a

meaningful review.

Respondent replies by first asserting that petitioner has waived the above

argument by not filing a motion for findings of fact and conclusions of law regarding

the Hearing Officers decision pursuant to 39-A M.R.S.A. § 318. Respondent argues that

absent contrary findings of fact or conclusions of law this court must assume the

Hearing Officer knew the law and applied it correctly. Morton v. Greater Portland Transit

District, 440 A.2d 8, 10 (Me. 1982) (“Because the employee did not request findings of

fact, we must resolve all questions of fact in favor of the commissioner's decision. That

decision can be vacated only if it is not supported by any reasonable interpretation of

the record.”)

Title 39-A M.R.S.A. § 318 provides:

The hearing officer, upon the motion of a party made within 20 days after

notice of the decision or upon its own motions, may find the facts

specially and state separately the conclusions of law and file the

appropriate decision if it defers from the decision filed before the request

was made.

Nothing in that language mandates that the hearing officer must make findings of fact

and conclusions of law. Further, there is no indication in the statutory provision that a

request for the same must be made by a party seeking judicial review, the failure of

which constitutes a waiver.

Respondent further argues that the findings the Board made are sufficient for

this court to conduct meaningful appellate review. Pointing out the much higher

standard for fraud (as opposed to intentional misrepresentation) respondent notes that

while the Board found misrepresentation it also found mitigating factors including the

fact that Ms. D’Andrea-Tripp sustained an injury and a significant aggravation of her

preexisting condition and the finding by the Board that Ms. D’Andrea-Tripp did not

have a job prior to her work for the employer and her history of substance abuse,

convictions and other problems. Respondent asserts that no further findings regarding

ability to pay were required.

The difficulty with respondent's position is that the hearing officer made no

finding one way or the other with respect to the allegations of fraud. The decision,

therefore, becomes ambiguous inasmuch as she assessed the maximum statutory

penalty without articulating a basis for that conclusion in the record. Nor did she

explain the factual basis for the intentional misrepresentation. The testimony of the

employee was inconsistent and in some cases contrary to the medical records. “It is an

indispensable prerequisite to effective judicial review that an agency’s decision set forth

the findings of basic fact as well as the conclusions of ultimate fact and conclusions of

law derived therefrom.” Harrington v. Town of Kennebunk, 459 A.2d at 562 (Me. 1983),

citing Gashgai v. Board of Registration in Medicine, 390 A.2d 1080 (Me. 1978).

Petitioner argues that the Board abused its discretion and made an error of law

by finding that the mention of prior pain to a physical therapist was a mitigating factor.

Since this admission of prior pain was not passed on to the employer or insurer before

they began paying. The disclosure to the therapist was irrelevant and should not have

been relied on as a mitigating factor. Petitioner also asserts that the admission of prior

pain contained inaccuracies.

Respondent replies that the disclosure is properly relied upon and that its

accuracy is documented by prior medical records. Respondent answers petitioners

argument that it was not informed of this admission by asserting that petitioner is

attempting to shift the burden and has not established that it did not have this record in

its possession. Respondent asserts that “it was its burden to establish that the record

was not sent to it” and that petitioner has failed its burden to establish that it did not

have this record in its possession.

Respondent also asserts that the material fact of a pre-existing condition is not

central to whether or not the employee would have been entitled to benefits.

Respondent makes this assertion despite the fact that the existence of a pre-existing

condition was central to finding intentional misrepresentation and assessing the

$1,000.00 fine.

In the end, respondent asserts, this information was in the record transmitted to

respondent and benefits could have been discontinued via a 21-day letter pursuant to

39-A M.R.S.A. § 205(9) of the Maine Workers Compensation Act.

Essential to a determination of the issues before the Board in this proceeding was

an expert determination of the role, if any, of any preexisting injury or condition in the

treatment by health care providers as a result of this compensable injury and the

ultimate effects therefrom. Title 39-A M.R.S.A. § 201 requires compensation to be paid

by an employer or its insurer if an employee receives a personal injury arising out of

and in the course of employment. Section 201(4) provides that, “If a work-related injury

aggravates, accelerates or combines with a preexisting physical condition, any resulting

disability is compensable only if contributed to by the employment in a significant manner.

(Emphasis supplied). Therefore, the preexisting medical history is particularly

important as affecting two factors in a compensation award. First, the diagnosis and

method of treatment by the health care providers, which may be at the expense of the

insurer, and secondly, the degree to which an award is made by a finding that the

aggravation of a previous condition is “contributed to by the employment in a

significant manner.”

Petitioner cites to North End Marine & Fiberglass Engineering, Inc. and Hanover

Insurance Company v. The Maine Workers’ Comp. Comm., CV-90-1645 (Me. Super. Ct.,

Cumberland County, May 31, 1991). Petitioner asserts that significant among the

similarities is the lack of finding at hearing of an ability to repay and findings as to the

full extent of medical problems. Most important, from petitioner’s perspective, is the

failure of the Commission to order any repayment to the insurer of benefits.

Respondent disputes the significance of similarities, noting that in North End

Marine the employee returned to work, misrepresented his capacity, hid income and

had an apparent ability to repay. Here, respondent asserts it is clear that Ms. D’ Andrea-

Tripp continues to suffer significant incapacity and has not attempted to defraud for

continuing benefits. Ms. D’Andrea-Tripp’s benefits were cut off as of 2001 and unlike

North End Marine mitigating factors were found in her case.

It is clear that the factual situation is much more aggravated in the North End

situation then exists here. However, while the North End board found fraud, this board

has made no finding with respect to fraud but has found intentional misrepresentation

and imposed the maximum penalty. Under those circumstances and without any

determination of Ms. D’Andrea-Tripp’s ability to repay, this court agrees that it is an

abuse of discretion for the Workers’ Compensation Commission hearing officer not to

order repayment of some or all of the benefits paid or, if not, make specific findings of

fact justifying such a conclusion. The court is not satisfied that the elements of

mitigation found by the hearing examiner is sufficient.

While it is clear that Ms. D’Andrea-Tripp engaged in intentional

misrepresentation, it is not clear, and cannot be clear from the record if she engaged in

fraud. There is a possibility that fraud occurred and the proper level of benefits were

not paid, even given the injury sustained. A remand to the Board for a determination of

whether the preexisting injury should have affected benefits and whether Ms.

D’Andrea-Tripp committed fraud and that determination’s effect on possible

repayment is in order.

The entry will be:

The decision of the State of Maine Workers’ Compensation Board

dated April 23, 2003, in the matter of Pamela D’Andrea (employee) v.

Regional Waste Systems (employer) and Maine Employers Mutual

(insurer) is REVERSED; the matter is REMANDED to the Workers’

Compensation Board for further proceedings to make appropriate

determinations of fact and conclusions of law consistent with this decision

and to order such repayment if founded upon substantial evidence in

accordance with law.

ZO

onald H. Marden

Justice, Superior Court

Dated: March 2 6, 2004

Date Filed 5/22/03 Kennebec Docket No. AP-03-29

County

Action 80C Appeal J MARDEN

Maine Employers Mutual Insurance Co. State of ME. Workers'

Compensation Board

ys, Pamela D'Andre-Tripp, Party in Interest

Plaintiff's Attorney Defendant’s Attorney

John Chapman, Esq. Edward Rabasco, Jr., Esq. (party in inter

PO Box 168 86 Lisbon Street

Portland ME 04112-0168 P.O. Box 1081

Lewiston, Maine 04243-1081

- John C. Rohde, Esq.

27 State House Station

Augusta, Maine 04333-0027

Stephen Sucy, AAG (ME Worker's Comp.)

Date of 6 State House Station

Entry Augusta, ME 04333-0006

5/22/03 Petition for Review of Final Agency Action along with attached exhibits,

filed. s/J. Chapman, Esq.

Case File Notice issued to J. Chapman, Esq.

5/29/03 Letter entering appearance, filed. s/Rabasco, Jr., Esq.

Answer, filed. s/Rabasco, Jr., Esq.

6/10/03 Statement of Respondent, Maine Workers' Compensation Board, Puusuant to

5 M.R.S.A 11005, filed. s/Rohde, Esq.

6/10/03 Original certified mailings with return service made upon Edward Rabasco

Pamela D'Andrea.on 5/22/03. © yt ths yas

Original certified mailings with return service made upon the Workers

Compensation board and the Office of the AAG on 5/23/03.

6/19/03 Certificate of Administrative Record, Vols. 1,2,3 (in vault)

------ Notice and Briefing Schedule mailed to attys. of record.

6/30/03 Notice of Appearance on behalf of Maine Workers’ Compensation Board,

filed. s/S. Sucy, AAG. (filed 6/23/03)

7/25/03 Application for Enlargement of Time to File Brief, filed. s/Chapman, Esq.

Affidavit of John W. Chapman, Esq.

Proposed Order on Application for Enlargment of Time, filed.

7/29/03 ORDER ON APPLICATION FOR ENLARGEMENT, Marden, J.

Time enlarged to August 5, 2003. Copies mailed to attys of record.

8/5/03 Petitioner's Brief, filed. s/Chapman, Esq.

9/5/03 Brief of Respondent State of Maine Workers’ Compensation Board, filed.

s/Sucy, AAG

Defendant's Motion to Dismiss Pursuant to M.R.Civ.P. 12(b)(1), filed.

s/Sucy, AAG

9/25/03 Memorandum in Opposition to Motion to Dismiss, filed. s/Chapman, Esq.