640 A.2d 203 (Me. 1994), Wallace v. Warren

Citation:640 A.2d 203
Opinion Judge:COLLINS,
Party Name:Joseph R. WALLACE v. S.D. WARREN, et al.
Attorney:James J. MacAdam (orally), McTeague, Higbee, Libner, MacAdam, Case & Watson, Topsham, for employee. Kevin G. Anderson (orally), Richardson & Troubh, Portland, for employer.
Judge Panel:Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS, RUDMAN and DANA, JJ.
Case Date:April 15, 1994
Court:Supreme Judicial Court of Maine

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640 A.2d 203 (Me. 1994)

Joseph R. WALLACE

v.

S.D. WARREN, et al.

Supreme Judicial Court of Maine.

April 15, 1994

Argued Nov. 19, 1993.

James J. MacAdam (orally), McTeague, Higbee, Libner, MacAdam, Case & Watson, Topsham, for employee.

Kevin G. Anderson (orally), Richardson & Troubh, Portland, for employer.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS, RUDMAN and DANA, JJ.

COLLINS, Justice.

On December 28, 1985, Joseph R. Wallace developed back and leg pains while working for S.D. Warren. He sought treatment at S.D. Warren's in-house medical department on December 30, 1985, and was fitted with a molded back support on January 8, 1986. That same day S.D. Warren filed a first report of injury pursuant to 39 M.R.S.A. § 106 (1989), but never filed a memorandum of payment nor a notice of controversy. Wallace continued to work, without complaint or injury, for S.D. Warren until he suffered a compensable injury to his back on June 24, 1990.

Wallace first filed a petition for award of compensation on June 3, 1991 for the December 28, 1985 injury. The Workers Compensation Board found that Wallace's petition was time barred and Wallace appeals. Finding no error, we affirm.

39 M.R.S.A. § 95 (1989), 1 repealed by P.L.1991, ch. 885, § A-7 (effective January 1, 1993), which applies to the present case, reads:

Any employee's claim for compensation under this Act shall be barred unless an agreement or a petition as provided in section 94 shall be filed within 2 years after the date of the injury, or, if the employee is paid by the employer or the insurer, without the filing of any petition or agreement, within 2 years of any payment by such employer or insurer for benefits otherwise required by this Act. The 2-year period in which an employee may file his claim does not begin to run until his employer, if he has actual knowledge of the injury, files a first report of injury as required by section 106 of the Act. Any time during which the employee is unable by reason of physical or mental incapacity to file the petition shall not be included in the period provided in this section. If the employee fails to file the petition within that period because of mistake of fact as to the cause and nature of the injury, he may file the petition within a reasonable time. In case of the death of the employee, there

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shall be allowed for filing...

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