The Maine Supreme Judicial Court ruled Thursday that a worker is not required to give notice of his occupational illness to his former employer’s insurance company when the employer disappears.
Roger Desgrosseilliers has been repairing asbestos insulation in paper mills across New England since the 1960s before retiring in 1994. In 2015, Mr. Desgrosseilliers underwent surgery for lung cancer and was diagnosed with asbestosis, according to documents in DeGrosseliers vs Auburn Sheet Metal, It was filed in Portland, Maine.
In early 2016, Mr. Desgrosseilliers filed five compensation claims under the Occupational Diseases Act, each claiming a different date of injury between September 1977 and May 1994, naming a different employer and insurance company, according to the documents.
The claims were consolidated and the parties agreed to divide the issues of medical causation and recent adverse exposure. After a hearing, an administrative law judge found Mr. Degrosseliers’ last injury likely to have been in 1994 when he was working for Auburn Sheet Metal, which no longer had workers’ insurance with Maine’s Employers Co-operative Insurance.
The Administrative Law Judge determined that the date of injury for Mr. Degroscellier for the purposes of applying the Occupational Diseases Act was November 2, 2015, when he underwent surgery for lung cancer. However, the Administrative Law Judge also determined that Mr. Degroscellier had only gained awareness of the compensable nature of his injury when he discussed the case with his attorney in February 2016.
Mr Desgrosseilliers informed Auburn of his claim 31 days after the ALJ decision. State law at the time required that notice of injury be served within 30 days, but since the 30th was on a Sunday, the administrative law judge deemed the next business day’s notice to be timely.
The Workers’ Compensation Board’s Appeals Chamber confirmed the Administrative Law Judge’s decision to issue the notice. In confirmation, the state’s highest court went on to say that state law does not provide any guidance to employees like Mr. Degrosceller, whose employer is no longer around.
In the absence of a clear reference to the legislative intent and clear language of state law, the court wrote, “We reject graft in the statutory scheme on the condition that the employee gives notice to the employer’s insurance company when the employer is not present.”
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