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DeRice v. S.D. Warren, corrected 5-1-97
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  1997 ME 84
Docket: WCB-95-609 and WCB-96-275
Argued March 3, 1997
Decided April 29, 1997

Panel:  WATHEN, C.J., ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and 
LIPEZ, JJ.


DONALD A. DeRICE v. S.D. WARREN CO. DEBORAH HOWARD v. PRATT & WHITNEY


WATHEN, C.J.


	[¶1]  The employers in this consolidated case appeal from decisions of
the Workers' Compensation Board granting the employees' motions for
attorney fees.  Both cases involve an injury that occurred before 1993.  In
both cases, petitions for relief were filed and submitted to mediation after
the effective date of title 39-A.  Maine Workers' Compensation Act of 1992,
P.L. 1991, ch. 885 (effective January 1, 1993).  The employers in both cases
were represented by counsel at the mediation session.  The Board granted
the employees' motions for fees and the parties have conceded that a
portion of those fees were for services rendered prior to mediation.  The
employers contend on appeal that employees with pre-1993 injuries are not
entitled to fees for services rendered prior to mediation.  39-A M.R.S.A. §
325(5) (Supp. 1996).  Because we conclude that the Legislature did not
intend to substantially alter an employee's entitlement to employer-paid
attorney fees for injuries that pre-date the enactment of title 39-A, we affirm
the decisions of the Board awarding fees.
	[¶2]  Under prior law, employers were generally responsible for the
cost of counsel for an employee.  Title 39-A does not require employers to
pay employee's counsel fees in connection with injuries occurring after
January 1, 1993.  39-A M.R.S.A. § 325(1) (Supp. 1996).  With respect to
injuries occurring before that date, subsection 325(5) provides as follows:

In cases in which the injury to the employee occurred prior to
January 1, 1993, the amount of the attorney's fees is determined
by the law in effect at the date of the injury and is payable by the
employer.  If the employee attended a mediation pursuant to
section 313 after January 1, 1993 and was represented by an
attorney, the attorney's fees may include compensation from the
date of the mediation session.

39-A M.R.S.A. § 325(5).  

	[¶3]  The statement of legislative intent for title 39-A provides that
"[s]o as not to alter benefits for injuries incurred before January 1, 1993, for
matters in which the injury occurred prior to that date, all the provisions of
this Act apply, except that . . .  Title 39-A, sections 211, 212, 213, 214,
215, 221, 306, and 325 do not apply."  P.L. 1991, ch. 885, § A-10.  Section
325 is expressly listed as prospective in application and therefore does not
apply retroactively to either employee's date of injury.  Dumond v. Aroostook
Van Lines, 670 A.2d 939, 941 n. 1 (Me. 1996); Marchand v. Eastern Welding
Co., 641 A.2d 190, 191, n. 1 (Me. 1994).  The parties agree that the
employees' entitlement to attorney's fees is governed by former 39 M.R.S.A.
§ 110, that provides, in pertinent part:
 
The employer may not be assessed costs of an attorney's fee
attributable to services rendered prior to one week after the
informal conference under section 94-B or, if the informal
conference is waived, services rendered prior to the date of that
waiver, unless a party adverse to the employee was so
represented at that stage.

39 M.R.S.A. § 110 (1989), repealed by Maine Workers' Compensation Act of
1992, P.L. 1991, ch. 885, §§ A-7 (effective January 1, 1993).{1}  The former
informal conference procedure was repealed by title 39-A and replaced with
mandatory mediation.  39-A M.R.S.A. § 313 (Supp. 1996). 
	[¶4]  Applying former section 110, the Board concluded that because
mediation replaced the former informal conference, and because the
employers were represented by counsel at the mediations, the employers
are required to pay fees for the period prior to mediation.  The Board, in
effect, substituted the word "mediation" for the phrase "informal
conference" as it appears in section 110.  The employers contend that the
Board's interpretation is inconsistent with the plain meaning of the statute
and that the terms "mediation" and "informal conference" are sufficiently
distinct, in name, purpose, and practice, to preclude the Board's
transposition of the phrases in the statute.  The employers contend further
that the proviso in subsection 325(5) that, in cases involving pre-1993
injuries, attorneys may be compensated "from the date of the mediation
session," is intended to preclude the payment of fees for services rendered
prior to the date of mediation.  39-A M.R.S.A. § 325(5). 
	[¶5]  We give deference to decisions of the Board interpreting the Act
and we will not vacate that decision unless the language or the purpose of
the Act plainly compels us to do so.  Burbank v. H.D. Goodall Hosp., 656 A.2d
1209, 1211 (Me. 1995); Nielsen v. Burnham & Morrill, Inc., 600 A.2d 1111,
1112 (Me. 1991).  We conclude that the Board's interpretation of the
statutory language in this case is most consistent with the legislative intent
not to alter the entitlement to attorney fees for employees with pre-1993
injuries.  P.L. 1991, ch. 885, § A-10; L.D. 2464, Statement of Fact (115th
Legis. 1991); Legis. Rec. H-56-57 (115th Legis. 3rd Spec. Sess. 1992).   The
informal conference procedure was initially enacted in 1983 as part of the
"early pay system."  P.L. 1983, ch. 479.  The purpose of the early pay system
was to encourage informal resolution of claims without the involvement of
attorneys.  Stickles v. United Parcel Serv., 554 A.2d 1176, 1179 (Me. 1989). 
The early pay system also contained safeguards to protect employees who
are encouraged by the Act to forego legal counsel.  Wentworth v. Manpower
Temp. Servs., 589 A.2d 934, 938 (Me. 1991).  One of those safeguards was
the rule of former section 110 requiring the payment of pre-conference fees
in cases in which the employer is represented at the conference by counsel. 
L.D. 1322, Statement of Fact (111th Legis. 1983).  The clear purpose of the
rule was to encourage the parties to get together informally without lawyers
to enter into an informal, non-binding discussion of the issues, and to
equalize the playing field between employee and employer when the
employer elects to be represented by counsel.  
	[¶6]  Mediation, although not identical in all respects to the former
informal conference, performs the same general purpose of encouraging
early resolution of claims.  Bureau v. Staffing Network, Inc., 678 A.2d 583,
590 (Me. 1996) (mediation is intended to "replace litigation whenever
possible").  Like the informal conference, mediation is triggered by "the
filing of a notice of controversy or other indication of controversy."  39-A
M.R.S.A. § 313(1); 39 M.R.S.A. § 94-B(1).  Unlike the informal conference,
mediation is mandatory and an agreement reached at mediation is binding
on the parties.  Id.  Although the early pay system was repealed with title 39,
we discern no evidence of a legislative intent to alter the balance between
employers and employees established by the former Act regarding attorney
fees for cases involving pre-1993 injuries.  The Legislature, cognizant of the
differences between mediation and informal conferences, enacted section
325(5) to trigger the deferral of the obligation to pay fees from "the date of
mediation," instead of "one week after informal conference" as required
pursuant to former section 110, in cases in which the employer is not
represented by counsel at the mediation.  
	The entry is:	
Decisions of the Workers' Compensation
Board affirmed.

Attorneys for employees: James J. MacAdam, Esq. (orally) McTeague, Higbee, MacAdam, Case, Watson & Cohen P O Box 5000 Topsham, ME 04086-5000 (for Donald DeRice) Arthur H. Dumas, Esq. 15 Cottage Street Sanford, ME 04073 (for Deborah Howard) Attorneys for employers: Thomas E. Getchell, Esq. (orally) Michael Richards, Esq. (orally) Trough, Heisler & Piampiano, P.A. P O Box 9711 Portland, ME 04104-5011
FOOTNOTES******************************** {1} Former section 94-B, governing informal conferences, provided, in pertinent part: If at (the informal conference) the employer or insurer elects to be represented by legal counsel, the employee is entitled to be similarly represented by legal counsel of his choice, with all reasonable attorney fees to be assessed against the employer. If no adverse party elects to be so represented, the employee retains the right to secure legal counsel at his own expense. 39 M.R.S.A. § 94-B (1989), repealed by Maine Workers' Compensation Act of 1992, P.L. 1991, ch. 885, § A-7 (effective January 1, 1993).