Delano v. City of South Portland

• Decision Date: 27 August 1979
• Citation: 405 A.2d 222
• Parties: Jon M. DELANO v. CITY OF SOUTH PORTLAND and Middlesex Mutual Insurance Company.
• Court: Maine Supreme Court

Page 222

405 A.2d 222

Jon M. DELANO v. CITY OF SOUTH PORTLAND and Middlesex Mutual Insurance Company.

Supreme Judicial Court of Maine.

Aug. 27, 1979.

Richardson, Hildreth, Tyler & Troubh by Ronald D. Russell, Portland (orally), for plaintiff.

Hewes, Culley & Feehan by George W. Beals (orally), Richard D. Hewes, Portland, for defendants.

Before McKUSICK, C. J., WERNICK and ARCHIBALD, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice. ¹

On January 21, 1972 Jon M. Delano sustained a work-related injury to his left knee while in the employ of the City of South Portland as a heavy equipment operator, his job classification being Equipment Operator II. Up until June 9, 1975 Delano did receive total disability benefits during several periods of disablement due to the original injury and three subsequent recurrences. By arrangement with the Director of the Public Works Department, Richard R. Brado, Delano then returned to work for the City as dump attendant, with the understanding that he would retain his classification of Equipment Operator II, although the dump attendant job was classified as that of a Laborer I. They also agreed that Delano would only work forty hours tending the dump and would not have to put in any overtime; on Delano's express concern about having to return to work as a "wing man" on the trucks for fear of re-injuring the knee, Brado assured him that he would not be called upon to do that type of work.

In late 1975 during a snow storm, one of Delano's supervisors assigned him to serve as a "wing man" on a snow plow. Delano refused the assignment, advising the supervisor of his fear of re-injuring his knee in that position and of his understanding with Mr. Brado that he would not be called upon to do that type of work. A check with the Director confirmed the previous agreement and Delano was not pressed to serve.

Following the receipt of a letter from Delano's treating physician at the request of the Director of the Public Works Department to the effect that, because of his leg injury, Delano could not operate heavy equipment, the City, on March 26, 1976 officially notified Delano that, due to his inability to perform the duties of an Equipment Operator II according to the medical reports, his classification was being changed from Equipment Operator II to Laborer I at the current hourly pay rate for said classification. The reclassification entailed a reduction in pay of $26.00 per week.

Delano then filed three petitions with the Industrial Accident Commission: ² on April 22, 1976, a petition for further compensation on account of partial incapacity pursuant to 39 M.R.S.A., § 55; on May 26, 1976 a petition for transfer to suitable work during period of rehabilitation as provided in 39 M.R.S.A., § 66-A; and on June 15, 1976 a petition requesting a Commission determination whether the City had discriminated against Delano and, if so, for an award of net wages lost by reason of such discrimination under 39 M.R.S.A., § 111.

The petitions were consolidated for hearing, which took place on September 30, 1976. By order dated November 8, 1978 the Commissioner found that Delano's demotion in job classification constituted the type of discrimination prohibited by 39 M.R.S.A. § 111 and ordered the City of South Portland

"to pay to Jon M. Delano the difference between the wage rate of a laborer and that of an Operator II, from March 29, 1976, as long as such wage disperity (sic) between the classifications exist,"

dismissing without prejudice the petition for transfer to suitable work on the ground of mootness. The City appeals from the Superior Court's conforming pro forma decree. We sustain the appeal.

Section 111 of Title 39 provides as follows:

" § 111. Discrimination

No employee shall be discriminated against by any employer in any way for testifying or asserting any claim under this Act. Any employer who so discriminates against any employee shall be liable to such employee on petition before the commission and hearing before the commission, for all net wages lost suffered by such employee by reason of such discrimination."

Noting that "(t)his provision, as any provision under the Worker's Compensation Act, must be construed liberally in favor of the worker in keeping with the expressly declared intent of the Act," the Commissioner interpreted the section broadly as prohibiting employer discrimination against an employee for exercising a right afforded an injured employee under the Act, including "the right not to be forced into employment which is likely to aggravate his injury or which (the employee) will be unable to carry out because of his injury." Finding that the City's change of classification respecting Delano's employment status was a demotion resulting directly from Delano's refusal to carry out his previous assignment to the "wing man" position on the snow plow and that Delano's unwillingness to comply with his supervisor's request was the exercise by an employee of the right within the scope of the Worker's Compensation Act not to be forced into work particularly hazardous to his current work-related impaired physical condition, the Commissioner further found that such action by the City was unlawful discrimination within the meaning of section 111 of the Act. The City contends, however, that the only employer discrimination prohibited by section 111, except when based upon an employee's "testifying" in a proceeding under the Act, contemplates discriminatory action resulting solely from the filing of a petition for compensation. With this narrow interpretation of the Act, we disagree.

Thus, the issue for decision is, what did the Legislature intend when it prohibited employer discrimination against an employee "in any way" for "asserting any claim under this Act?"

In determining legislative intent respecting any ambiguity in the Workers' Compensation Act, we must bear in mind the Legislature's mandate that the Act be given a liberal construction "with a view to carrying out its general purpose." 39 M.R.S.A., § 92. The basic objective of the Act, in compelling employers to pay compensation benefits to their employees when suffering work-related injuries, is to transfer the burdens resulting from industrial injuries from the individual employee to the employer with the ultimate distribution of the cost of such industrial insurance program upon the consumer-society as a whole. See Brown v. Palmer Construction Company, Inc., Me., 295 A.2d 263, 264-265 (1972); Bartley v. Couture, 143 Me. 69, 78, 55 A.2d 438, 443 (1947); MacDonald v. Employers' Liability Assurance Corporation, 120 Me. 52, 112 A. 719 (1921).

Implementing the legislative will, our Court has consistently given the Act a liberal construction favorable to the employee, which it is by law mandated to do, to accomplish its intended beneficial results and carry out its general humanitarian purpose. Gilbert v. Maheux, Me., 391 A.2d 1203, 1205 (1978); Ross v. Oxford Paper Co., Me., 363 A.2d 712 (1976); In re Dudley, Me., 256 A.2d 592 (1969).

We recognize, however, that, notwithstanding the legislative mandatory directive to apply a liberal interpretation to the Act generally, such does not justify judicial creation of rights or liabilities under the guise of construction. The scope of liberality to be afforded the Act must come from the Legislature. Simpson's Case, 144 Me. 162, 167, 66 A.2d 417, 419 (1949).

Though courts must afford equal treatment under the law to employer and employee, even when applying the liberal construction rule mandated by the Legislature (White v. Eastern Mfg. Co., 120 Me. 62, 112 A. 841, 16 A.L.R. 1165 (1921)), nevertheless, we must not lose sight of the factual purpose and intended objective of the Workers' Compensation Act, i. e. adequate protection to employees against the consequences of work-related injuries through its comprehensive benefit-compensation structure.

The One Hundred and Fifth Legislature in 1971 extended the Act's general remunerative benevolent protectiveness to employees by prohibiting specifically Any employer discrimination in connection with employee "testifying or asserting any claim under this Act." See P.L.1971, c. 190. (39 M.R.S.A., § 111). Reading the word "claim" literally may possibly support the City's narrow interpretation which it requests this Court to place on the legislative terminology. But, our statutory obligation to construe the Act liberally in favor of the employee (39 M.R.S.A., § 92) demands that we construe the word "claim" in its broad sense as the equivalent of "right."

Militating against a narrow construction is the very language of section 111 protecting employees against discrimination by employers In any way, i. e. of any kind, because of employee enforcement of the Act including any provisions thereof. If the Legislature had intended to restrict the terms "asserting any claim under this Act" to mean the assertion of a claim for compensation or benefits as distinguished from the voicing of any right under the workers' compensation law, it would have been so easy to say so directly as the Legislature consistently did in other areas of the Act, such as in section 64-A, where the same reads in part: "In any claim for compensation, where the employee etc. . . . ;" or in section 69, where the terminology used is also: "A claim for compensation under this Act, . . . ;" or in section 95, where the language is: "Any employee's claim for compensation under this Act shall be barred . . . ."

The One Hundred and Fifth Legislature, which enacted the anti-discrimination section 111 as an integral part of the Workers' Compensation Act, at the same session, passed the Human Rights Act which protects generally the right to freedom from discrimination in employment, declaring it to be a civil right. This Act prohibits employment discrimination (Except where based on a bona fide occupational qualification ) such as, for an employer to...