ROSETTI v. LAND RECLAMATION
9/26/1997
[ 1] W.H. Shurtleff Co. appeals from a decision of the Workers' Compensation Board on a motion brought by Land Reclamation, the second employer in a successive injury case, ordering Shurtleff to reimburse Reclamation for fifty percent of Reclamation's obligation to pay continuing benefits to the employee pending appeal. 39-A M.R.S.A. § 205(9)(B)(2) (Supp. 1996). Because we conclude that the Board has no authority to determine apportionment issues between insurers, we vacate the Board's decision. 39-A M.R.S.A. § 354 (Supp. 1996).
[ 2] The employee, Dominic Rosetti, suffered two compensable low-back injuries; the first in 1979, while employed by Shurtleff, and the second in 1991, while employed by Reclamation. In 1993 Reclamation filed a petition for review and a petition for apportionment against Shurtleff, and in 1994 Rosetti filed a petition for restoration for the 1979 injury. In March 1995 the Board granted all of the petitions, in part, awarding total and partial benefits ending in June 1992. Because an exact apportionment was not possible, the Board apportioned liability equally between the two employers. The Board issued findings of fact and conclusions of law on June 29, 1995, and Rosetti filed a timely petition for appellate review from that decision.
[ 3] In September 1995 Reclamation filed a "Motion to Determine the Amount of Reimbursement" seeking reimbursement from Shurtleff for fifty percent of the continuing benefits that it pays to Rosetti pursuant to 39-A M.R.S.A. § 205(9)(B)(2), while Rosetti's petition for appellate review was pending with the Law Court. The Board granted the motion and also filed its own motion with the Law Court pursuant to 39-A M.R.S.A. § 318 (Supp. 1996), seeking to have its earlier decision amended to specify that both insurers must pay during the pendency of the appeal pursuant to section 205(9).
[ 4] Shurtleff did not bring a timely petition for appellate review from the March and June decisions granting Reclamation's 1993 petition for apportionment, and, therefore, we have no authority to review the Board's decision on that petition. 39-A M.R.S.A. § 322 (Supp. 1996); Guaranty Fund Management Servs. v. Workers' Compensation Bd., 678 A.2d 578, 582-83 (Me. 1996). Although we have not addressed whether an employer who successfully litigates a termination of the employee's benefits may be required to continue payment of benefits until the conclusion of appeal proceedings pursuant to 39-A M.R.S.A. § 205(9)(B)(2), there
[ 5] 39-A M.R.S.A. § 354 provides:
1. Applicability. When 2 or more occupational injuries
occur, during either a single employment or successive
employments, that combine to produce a single incapacitating
condition and more than one insurer is responsible for that
condition, liability is governed by this section.
2. Liability to employee. If an employee has sustained more
than one injury while employed by different employers, or if an
employee has sustained more than one injury while employed by
the same employer and that employer was insured by one insurer
when the first injury occurred and insured by another insurer
when the subsequent injury or injuries occurred, the insurer
providing coverage at the time of the last injury shall
initially be responsible to the employee for all benefits
payable under this Act.
3. Subrogation. Any insurer determined to be liable for
benefits under subsection 2 must be subrogated to the
employee's rights under this Act for all benefits the insurer
has paid and for which another insurer may be liable. Any such
insurer may, in accordance with rules adopted by the
Sup
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