Lucas v. E.A. Buschmann, Inc.

• Decision Date: 31 March 1995
• Docket Number: No. 7187,Docket No. WCB-93-737,7187
• Citation: 656 A.2d 1193
• Parties: Paul LUCAS v. E.A. BUSCHMANN, INC. et al. Division(Law
• Court: Maine Supreme Court

Page 1193

656 A.2d 1193

Paul LUCAS v. E.A. BUSCHMANN, INC. et al.

Division No. 7187.

(Law Docket No. WCB-93-737.

Supreme Judicial Court of Maine.

Argued Sept. 23, 1994.

Decided March 31, 1995.

Justin W. Leary (orally), Laskoff & Sharon, Lewiston, for Employee.

Brenda Piampiano (orally), Piampiano & Gavin, Portland, for Employer.

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

DANA, Justice.

E.A. Buschmann, Inc., appeals from decisions of the Workers' Compensation Board awarding attorney fees to its employee, Paul Lucas, and penalizing Buschmann for its failure to pay the fees awarded during the pendency of an appeal from that order. We conclude that the failure to pay the attorney fee award was not a failure to pay "compensation" pursuant to 39 M.R.S.A. § 104-A. The Board was not authorized to award a penalty for the employer's failure to pay attorney fees during the pendency of the appeal or to award counsel fees to the employee for the penalty proceeding. We affirm, however, the award of attorney fees in connection with the underlying dispute.

The employee, Paul Lucas, suffered a compensable injury in 1989, while employed at Buschmann. Buschmann and its insurer, Commercial Union Insurance Company, accepted liability for the injury and initially paid total incapacity benefits. In 1991 the Workers' Compensation Commission granted Buschmann's petition for review and discontinued incapacity payments, finding that Lucas was earning more income in his post-injury employment than he had earned prior to his injury. In the same decree, however, the Commission granted Lucas's petition to determine his average weekly wage, increasing it from $262.60 to $276.55. This resulted in an award of $455 for the employee (an additional $9.30 per week for a period of roughly 49 weeks) which Buschmann promptly paid.

Because Lucas prevailed on his petition to determine his average weekly wage, Lucas filed a motion seeking attorney fees. Although Lucas requested attorney fees of $5,253.75, the Commission originally awarded $3,942.75. On Buschmann's appeal the Appellate Division vacated the award, finding insufficient findings of fact to support it. On remand the Board awarded $1,760.25. Because Buschmann had not paid the original attorney fees award of $3,942.75 within ten days of the order, Lucas filed a petition for forfeiture with the Abuse Investigation Unit which concluded that Buschmann was delinquent in paying the award and recommended a $500 penalty. Buschmann refused to accept the recommendation and the matter was referred for a hearing. On the same day that the Board reduced the attorney fee award to $1,760.25, it granted Lucas's petition for forfeiture and assessed a fine of $500 plus additional attorney fees in the amount of $813.90 for successfully pursuing the petition for forfeiture. Buschmann appeals from both decisions of the Board, contending the award of $1,760 is still excessive and that it should not be subject to a penalty for its failure to pay attorney fees during the pendency of the appeal.

We note that "the rights of a party under the Workers' Compensation Act are purely statutory," Lavoie v. International Paper Co., 403 A.2d 1186, 1191 (Me.1979), and that the Board has no authority to order a penalty against a party other than that which is expressly provided by the Act. See Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 362 (Me.1994); Cote v. Georgia-Pacific Corp., 596 A.2d 1004 (Me.1991). The controlling statute in this appeal is section 104-A, that provides in pertinent part:

The employer or insurance carrier shall make compensation payments as follows:

1. Order or decision. With regard to injuries ... within 10 days after any order or decision of the commission awarding compensation. Payment shall not be suspended thereafter in the event of appeal....

2-A. Failure to pay within time limits. An employer or insurance carrier who fails to pay compensation, as provided in this section, shall be penalized as provided in this subsection.

A. ... [I]f an employer or insurance carrier fails to pay compensation as provided in this section, the commission shall assess against the employer or insurance carrier a forfeiture of up to $100 for each day of noncompliance.

39 M.R.S.A. § 104-A (1989). ¹

Buschmann contends that an award of attorney fees is not an award of "compensation" "with regard to injuries" for purposes of section 104-A, and therefore it was error for the Board to order a forfeiture for its failure to pay the fees during the pendency of the appeal. We agree. In Pomerleau v. United Parcel Serv., 455 A.2d 950, 953 (Me.1983), we noted that the legislative purpose for requiring the payment of benefits during an appeal "is to prevent the employee from being placed under severe economic pressure by nonpayment, forcing him to settle the claim at a lesser amount while the appeal is pending." Id. at 953-54. See also Statement of Fact, L.D. 375 (108th Legis.1977). Similarly, in Ryerson v. Pratt & Whitney Aircraft, 495 A.2d 808, 811-12 (Me.1985), we held that, for purposes of section 104-A, the word "compensation" includes payment of medical expenses. Noting that the phrase "compensation payment scheme" in section 51-B(3) & (4) includes "compensation" for "medical expenses, aids and other services under section 52," we concluded in Ryerson that the term "compensation" in section 104-A includes medical payments made during the pendency of an appeal. Id. at 811. Relying on Pomerleau, we noted further that

[s]ection 104-A provides for payment pending appeal of "compensation" "with regard to injuries," which medical payments clearly are. It is just as true in this case as it was for pre-decree benefits in Pomerleau that an employee may suffer economic hardship when the employer does not pay medical expenses. As in Pomerleau, that hardship may improperly pressure the employee into settling a workers' compensation claim for less than its fair worth.

Id.

We find no basis, however, in the statute or in the underlying policy of the Act to suggest a legislative intent to treat attorney fees as "compensation" for purposes of section 104-A. In interpreting the plain meaning of statutory language, we consider "the whole statutory scheme of which the section at issue forms a part so that a harmonious result, presumably the intent of the Legislature, may be achieved." Parker v. Bath Iron Works Corporation, 644 A.2d 1037, 1039 (Me.1994) (quoting Davis v. Scott Paper Co., 507 A.2d 581, 583 (Me.1986)). Our analysis of the Act as a whole suggests that the Legislature has consistently viewed attorney fees as separate and distinct from "compensation." The term "compensation" is typically used in the Act to refer to compensation received by the employee. See e.g., 39 M.R.S.A. §§ 51(1), 54-B, 55-B, 56-B, 58 (1989). Attorney fees, by contrast may be more appropriately characterized as compensation for the attorney, not the employee. Indeed, we have stated that the legislative purpose in requiring the employer to bear the employee's cost of appeal is to prevent the employee's compensation from being diminished by attorney fees. Gordon v. Maine Reduction Co., Inc., 358 A.2d 544, 551 (Me.1976) (interpreting former section 103). Section 104-A refers not merely to "compensation," but "compensation" "with regard to injuries." 39 M.R.S.A. § 104-A(1) (1989)....