Roger Desgrosseilliers v. Auburn Sheet Metal at al.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 63
Docket: WCB-20-291
Argued: September 8, 2021
Decided: December 16, 2021

Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

ROGER DESGROSSEILLIERS

v.

AUBURN SHEET METAL et al.

GORMAN, J.

[¶1] Auburn Sheet Metal and Maine Employers’ Mutual Insurance

Company (MEMIC) appeal from a decision of the Appellate Division of the

Workers’ Compensation Board affirming the decision of the WCB

Administrative Law Judge (Goodnough, ALJ) granting Roger Desgrosseilliers’s

petition for award of compensation. The question presented on appeal is

whether an employee is required to give notice of his occupational disease

claim to his former employer’s insurer when the employer no longer exists.

Because neither 39-A M.R.S. § 301 (2021) nor the Occupational Disease Law,

39-A M.R.S. §§ 601-615 (2021), impose that requirement, we affirm the

decision of the Appellate Division.
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I. BACKGROUND

[¶2] The following facts were found by the ALJ in his decision, were

adopted by the Appellate Division, and are not challenged on appeal. Roger

Desgrosseilliers is a seventy-eight-year-old retiree. Beginning in the 1960s,

Desgrosseilliers worked as a sheet metal worker repairing asbestos-insulated

ductwork, siding, roofing, lagging, boilers, and hoods in paper mills throughout

New England. His work resulted in the release of asbestos fibers into the air,

where they were inhaled by him. On November 2, 2015, nearly twenty years

after retiring, Desgrosseilliers underwent surgery for lung cancer and was later

diagnosed with asbestosis.

[¶3] In March of 2016, Desgrosseilliers filed with the Workers’

Compensation Board five petitions for award of compensation under the

Occupational Disease Law. Each petition alleged a different date of injury and

named a different employer and insurer pairing. All told, the petitions covered

a period stretching from September of 1977 until May of 1994. The petitions

were consolidated, and the parties agreed to bifurcate the issues of medical

causation and the last injurious exposure. After a hearing, the ALJ found that

Desgrosseilliers’s last injurious exposure to asbestos more likely than not

occurred in 1994 when he was working for Auburn Sheet Metal. In 1994,
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Auburn Sheet Metal was owned and operated by Desgrosseilliers’s wife and

was insured by MEMIC. Desgrosseilliers’s wife has since died, and Auburn

Sheet Metal no longer exists.

[¶4] The ALJ determined that Desgrosseilliers’s date of injury for

purposes of applying the Occupational Disease Law was November 2, 2015,

when he underwent lung cancer surgery. See 39-A M.R.S. §§ 606- 607. The ALJ

also determined, however, that Desgrosseilliers likely gained awareness of the

compensable nature of his injury only when he discussed the claim with his

attorney on February 26, 2016.

[¶5] Desgrosseilliers notified Auburn Sheet Metal of his claim on

Monday, March 28, 2016, when one of its insurers received his petition for

award. This was thirty-one days after he understood the compensable nature

of his injury. The ALJ concluded that Desgrosseilliers’s notice on the thirty-first

day was timely because the thirtieth day fell on a Sunday. In explaining its

conclusion, the ALJ referenced M.R. Civ. P. 6(a), which allows for an extra day

to file documents in civil court matters when, among other reasons, the last day

of the filing period is a Sunday. The ALJ also concluded that Desgrosseilliers

was operating under a mistake of fact as to the cause or nature of his injury and
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that the notice he provided occurred within a reasonable time. See 39-A M.R.S.

§ 306(5) (2021).

[¶6] After receiving the ALJ’s decision, the parties entered into a consent

decree. They agreed that, if the ALJ’s decision regarding notice was affirmed on

appeal, Desgrosseilliers’s petition would be granted against Auburn Sheet

Metal, as insured by MEMIC. MEMIC specifically reserved the right to challenge

the issue of notice to the Appellate Division and to us. On appeal, the Appellate

Division affirmed the decision of the ALJ with regard to the issue of notice, albeit

on different grounds than that of the ALJ. The Appellate Division concluded that

Desgrosseilliers was not required to provide notice to MEMIC pursuant to

section 301 and, therefore, did not consider whether the notice to MEMIC was

timely. MEMIC petitioned for appellate review of the Appellate Division’s

decision, and we granted the petition. See 39-A M.R.S. § 322(3) (2021); M.R.

App. P. 23(c).

II. DISCUSSION

[¶7] Before 2016, when an ALJ’s decision was reviewed by the Appellate

Division and subsequently appealed, we would review the ALJ’s decision

directly. Bailey v. City of Lewiston, 2017 ME 160, ¶ 9, 168 A.3d 762. The

Legislature, however, amended the workers’ compensation statute to provide
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that “only a decision of the [Appellate] [D]ivision may be reviewed on appeal.”

39-A M.R.S. § 322(1); see P.L. 2015, ch. 469, § 2 (effective July 29, 2016).

Therefore, we review decisions of the Appellate Division “according to

established principles of administrative law, except with regard to the . . . ALJ’s

factual findings.” Bailey, 2017 ME 160, ¶ 9, 168 A.3d 762. Decisions of the

Appellate Division interpreting the Workers’ Compensation Act are “entitled to

great deference and will be upheld on appeal unless the statute plainly compels

a different result.” Johnson v. Home Depot USA, Inc., 2014 ME 140, ¶ 8, 106 A.3d

401 (quotation marks omitted).

[¶8] This case, with its focus on section 301, requires us to consider the

Maine Workers’ Compensation Act of 1992, 39-A M.R.S. §§ 101-409 (2021), and

its relationship to the Occupational Disease Law, 39-A M.R.S. §§ 601-615.

See Urrutia v. Interstate Brands Int’l, 2018 ME 24, ¶ 12, 179 A.3d 312 (“The law

of workers’ compensation is uniquely statutory.”) (alteration and quotation

marks omitted)). Our main objective in construing any statute is to give effect

to the will of the Legislature. Est. of Stone v. Hanson, 621 A.2d 852, 853

(Me. 1993); see also Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360

(Me. 1994). In determining the legislative intent, we look first to the plain

meaning of the statutory language. Wuori v. Otis, 2020 ME 27, ¶ 6, 226 A.3d
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771. “[W]e construe that language to avoid absurd, illogical or inconsistent

results, and we consider the whole statutory scheme of which the section at

issue forms a part so that a harmonious result, presumably the intent of the

Legislature, may be achieved.” Urrutia, 2018 ME 24, ¶ 12, 179 A.3d 312

(quotation marks omitted).

[¶9] The question presented here is whether any portion of the Workers’

Compensation Act of 1992 or the Occupational Disease Law requires an

employee to provide notice of an occupational disease to an insurer when that

employer is no longer in business. As we have recognized, the purpose of the

thirty-day notice requirement1 is to enable the employer to provide prompt

medical treatment to minimize the employee’s injuries or disability and the

employer’s liability, to make a prompt investigation of the circumstances of the

accident, and to take prompt action to prevent similar injuries to other workers.

See Daigle v. Daigle, 505 A.2d 778, 779 (Me. 1986); Dunton v. E. Fine Paper Co.,

423 A.2d 512, 518 (Me. 1980); Clark v. DeCoster Egg Farms, 421 A.2d 939, 942

(Me. 1980).

1 The notice requirement for some employees has recently been enlarged to sixty or ninety days
after the date of injury, depending on when the injury occurred. See 39-A M.R.S. § 301 (2021);
P.L. 2019, ch. 344, § 13 (effective Sept. 19, 2019).
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[¶10] Although this is a case governed by the Occupational Disease Law,

the parties agree that the notice provision of section 301 applies to

occupational disease claims. See 39-A M.R.S. § 607 (“Sections 301 to 307 with

reference to giving notice, making claims and filing petitions apply to cases

under th[e] [Occupational Disease Law] . . . .”). Section 301 reads, in relevant

part:

For claims for which the date of injury is on or after January 1, 2013
and prior to January 1, 2020, proceedings for compensation under
this Act, except as provided, may not be maintained unless a notice
of the injury is given within 30 days after the date of injury. . . .

The notice must be given to the employer, or to one employer
if there are more employers than one; or, if the employer is a
corporation, to any official of the corporation; or to any employee
designated by the employer as one to whom reports of accidents to
employees should be made. It may be given to the general
superintendent or to the supervisor in charge of the particular
work being done by the employee at the time of the injury. Notice
may be given to any doctor, nurse or other emergency medical
personnel employed by the employer for the treatment of
employee injuries and on duty at the work site. If the employee is
self-employed, notice must be given to the insurance carrier or to the
insurance carrier’s agent or agency with which the employer
normally does business.

(Emphasis added.) As MEMIC concedes, the plain language of section 301

provides no direction to those employees, like Desgrosseilliers, whose

employer no longer exists. Relying on the definition of “employer” found in

39-A M.R.S. § 102(12), MEMIC asserts, however, that we should read section
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301 as though it requires notice to the “employer or insurer.” Section 102(12)

provides:

If the employer is insured, “employer” includes the insurer,
self-insurer or group self-insurer unless the contrary intent is
apparent from the context or is inconsistent with the purposes of
this Act.

[¶11] Adding “insurer” to the first iteration of the word “employer” in

section 301 would produce the following result:

For claims for which the date of injury is on or after January 1, 2013
and prior to January 1, 2020, proceedings for compensation under
this Act, except as provided, may not be maintained unless a notice
of the injury is given within 30 days after the date of injury. . . .

The notice must be given to the employer [or insurer], or to
one employer if there are more employers than one; or, if the
employer is a corporation, to any official of the corporation; or to
any employee designated by the employer as one to whom reports
of accidents to employees should be made. It may be given to the
general superintendent or to the supervisor in charge of the
particular work being done by the employee at the time of the
injury. Notice may be given to any doctor, nurse or other
emergency medical personnel employed by the employer for the
treatment of employee injuries and on duty at the work site. If the
employee is self-employed, notice must be given to the insurance
carrier or to the insurance carrier’s agent or agency with which the
employer normally does business.

(Emphasis added.) The problem with this reading is that it results in

uncertainty and confusion. See Urrutia, 2018 ME 24, ¶ 12, 179 A.3d 312. Would

every employee have the option to give notice to either the employer or an
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insurer when both are in existence and known? That is an unlikely result,

because allowing an employee to give notice to the insurer rather than the

employer would ignore the carefully curated list of individuals or entities

authorized to accept notice from an employee and on behalf of an employer.

See 39-A M.R.S. § 301. Such a process could prevent anyone directly associated

with the workplace from actually being notified, a result inconsistent with the

purposes of section 301. See Daigle, 505 A.2d at 779; Dunton, 423 A.2d at 518;

Clark, 421 A.2d at 942.

[¶12] Even if this interpretation were only applied in situations where

the employer is no longer in existence, a further complication arises in cases

involving occupational diseases. Assuming that section 102(12) should be

applied generally to the Occupational Disease Law,2 the language in the Law’s

notice provision section demonstrates an apparent “contrary intent” in its use

2 As noted above, 39-A M.R.S. § 607 (2021) does specifically incorporate section 301 into the
Occupational Disease Law, 39-A M.R.S. §§ 601-615 (2021). Although there is no provision specifically
incorporating 39-A M.R.S. § 102 (2021) or its definitions, 39-A M.R.S. § 602 states:

Except as otherwise specifically provided, incapacity to work or death of an
employee arising out of and in the course of employment and resulting from an
occupational disease must be treated as the happening of a personal injury arising
out of and in the course of the employment, within the meaning of the former
Workers’ Compensation Act or the Maine Workers’ Compensation Act of 1992, and
all the provisions of the applicable Act apply to that occupational disease. . . .

(Emphasis added and footnotes omitted.)
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of “employer.” Title 39-A M.R.S. § 606, which establishes a process for the

determination of the date an employer becomes liable for an employee

incapacitated by an occupational disease, also contains specific language

directing to whom notice must be given:

The date when an employee becomes incapacitated by an
occupational disease from performing the employee’s work in the
last occupation in which the employee was injuriously exposed to
the hazards of the occupational disease is the date of the injury
equivalent to the date of injury under the former Workers’
Compensation Act or the Maine Workers’ Compensation Act of
1992. When compensation is payable for an occupational disease,
the employer in whose employment the employee was last
injuriously exposed to the hazards of the occupational disease and
the insurance carrier, if any, on the risk when the employee was
last exposed under that employer, are liable. The amount of the
compensation must be based on the average wages of the employee
on the date of injury. Notice of injury and claim for compensation
must be given to the employer in whose employment the employee
was last injuriously exposed to the hazards of the occupational
disease. . . .

(Emphasis added and footnotes omitted.)

[¶13] When “the employer in whose employment the employee was last

injuriously exposed to the hazards of the occupational disease” is no longer in

existence, could the employee satisfy his notice obligation by providing notice

to any one of the employer’s past insurers, even if that insurer was not

responsible for the period of employment when the last injurious exposure
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occurred? See 39-A M.R.S. § 606. How is the employee supposed to know which

insurer to notify? Would notice to any insurer suffice?

[¶14] Because MEMIC’s proposed reading of the statute would require

us to adopt an implied and alternate meaning to the statutory language for

some cases, i.e., those where an employer is no longer in existence, and a “plain

language” meaning to those cases where both the employer and the insurer are

known and still in existence, we would be creating a system not currently found

in either the Workers’ Compensation Act of 1992 or the Occupational Disease

Law. See Daigle, 505 A.2d at 779. Had the Legislature intended to place such a

requirement only on certain employees—those whose employers are no longer

in existence—it certainly knew how to draft such a requirement. See HL 1, LLC

v. Riverwalk, LLC, 2011 ME 29, ¶ 25, 15 A.3d 725 (“It is apparent that the

Legislature knew how to create statutory language that allows [the intended

result in other provisions] . . . . Consequently, the absence of such language [in

this provision] demonstrates the Legislature’s intent [to provide for a different

result].”). Section 301 already contains a provision that specifically requires

some employees—those who are self-employed—to provide notice to the

“insurance carrier or to the insurance carrier’s agent or agency.”
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[¶15] We have repeatedly recognized that the law of workers’

compensation is uniquely statutory. See Urrutia, 2018 ME 24, ¶ 12, 179 A.3d

312. In the absence of a clear indication of legislative intention, and in light of

the substantial deference we pay to the Appellate Division’s interpretation

when the statute’s plain language does not compel a contrary result, we decline

to graft onto the statutory scheme the requirement that an employee provide

notice to the employer’s insurer when the employer is no longer in existence.

Johnson, 2014 ME 140, ¶ 8, 106 A.3d 401; Wentzell v. Timberlands, Inc., 412 A.2d

1213, 1215 (Me. 1980) (“Since the Workers’ Compensation Act is a creation of

the [L]egislature, the [L]egislature bears the primary responsibility for

enunciating with clarity the purposes it intends to achieve through that

statute.”); Ryerson v. Pratt & Whitney Aircraft, 495 A.2d 808, 812 (Me. 1985)

(“If a policy different from that laid down by th[e] clear language is to be

adopted, it is the [L]egislature that should do it . . . .”). To do otherwise would

be to venture outside of our role in a uniquely statutory field created in

response to legislative dissatisfaction with judicial solutions to the problems of

compensation for workers injured or otherwise harmed in the workplace.

Am. Mut. Ins. Cos. v. Murray, 420 A.2d 251, 252 (Me. 1980).
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III. CONCLUSION

[¶16] For the foregoing reasons, we conclude that the Appellate Division

properly concluded that the workers’ compensation statute does not impose on

an injured employee whose employer is no longer in existence the duty to give

notice to the insurer.

The entry is:

Judgment affirmed.

Elizabeth Eddy Griffin, Esq. (orally), MEMIC, Portland, for appellants Auburn
Sheet Metal and Maine Employers’ Mutual Insurance Company

James J. MacAdam, Esq. (orally), Nathan A. Jury, Esq., and Donald M. Murphy,
Esq., MacAdam Jury, P.A., Freeport, for appellee Roger Desgrosseilliers

Workers Compensation Board Appellate Division case number 17-0045
FOR CLERK REFERENCE ONLY