MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020	ME	137

Docket: WCB-20-60

Argued: September	16,	2020

Decided: December	15,	2020

Panel: MEAD,	GORMAN,	JABAR,	HUMPHREY,	and	HORTON,	JJ.

LORRAINE	SOMERS

v.

S.D.	WARREN	COMPANY et	al.

MEAD,	J.

[¶1]		In	December	2014,	the	Workers’	Compensation	Board	(Elwin,	HO)1

entered	a	decree	permitting	S.D.	Warren	Company	and	its	insurer,	Constitution	

State	 Services	 (collectively	 S.D.	 Warren),	 to	 discontinue	 paying	 Lorraine	

Somers	 partial	 incapacity	 benefits	 because	 those	 payments	 had	 reached	 a	

520-week	statutory	limit.		See	39-A	M.R.S.	§	213(1)(A),	(4) (2014).2

[¶2]	 	 Somers	 petitioned	 to	 have	 her	 benefits	 reinstated,	 asserting that	

S.D. Warren had	failed	to	comply	with	Me. W.C.B.	Rule,	ch. 2,	§ 5(1)	(2017)(“the	

 1	 	Before	October	 15,	 2015,	 Administrative	 Law	 Judges	deciding	workers’	 compensation	 cases	

were	known	as	Hearing	Officers.		See	P.L. 2015,	ch.	297 (effective	Oct.	15,	2015).

2		The	statute	has	since	been	amended,	but	not	in	a	way	that	affects	this	appeal.		P.L.	2015,	ch.	297,	

§	8	(effective	Oct.	15,	2015);	P.L.	2017,	ch.	288,	§	A-50	(effective	July	15,	2017)(codified	at	39-A	M.R.S.	

§	213(1)(A),	(4)	(2020)).
2

former	Rule”)3 by	not	providing	her, before	it	ceased	making	payments,	with	

notice	that	she	could	be	eligible	for	an	extension	of	weekly	benefits.		Although	

an	Administrative	Law	Judge	(Elwin,	ALJ)	denied	the petition	for	reinstatement	

of	benefits,	the	Workers’	Compensation	Board	Appellate	Division	vacated	that	

decision	after	Somers	appealed.

[¶3]		The	Appellate	Division	concluded	that	the	notice	requirement	of	the	

former	Rule was	applicable	to	Somers’s	petition and	that, because	S.D. Warren	

admitted	 that	 it	 had not	 sent	 the	 notice,	 it	 was	 required	 to	 pay	 Somers	 all	

benefits	 owed	 to	 her	 from	 the	 date	 they	 were	 discontinued	 pursuant	 to	 the	

2014	decree.		The	Appellate	Division	further	concluded	that	the decree	did	not	

impose	a	res judicata	bar	on	Somers’s	petition.		On	S.D.	Warren’s	appeal	from	

the	decision	of	the	Appellate	Division,	we affirm.

I.		BACKGROUND

[¶4]	 	 In	 December	 2000,	 Somers	 suffered	 a	 right	 knee	 injury	 while	

working	for	S.D.	Warren.		She	returned	to	work	in	a	work-hardening	capacity	

 3		The	Rule	was	amended	on	September	1,	2018,	by	adding	subsection	1-A,	which	shifts	the	burden	

to	provide	notice	from	the	employer	to	the	Board	in	cases	where	an	order	of	compensation	has	been	

entered.		See	Me.	W.C.B.	Rule,	ch.	2,	§	5(1)-(1-A)	(2020).		Accordingly,	the	principal	legal	issue	in	this	

case	 will	 not	 recur	 in	 petitions	 filed	 after	 the	 amendment	 took	 effect.	 	 The	 version	 of	 the	 rule	

applicable	to	Somers’s	petition,	Me.	W.C.B.	Rule,	ch.	2,	§ 5(1)	(2017),	is	referred	to	in	this	opinion	as	

“the	 former	 Rule.”	 	 The	 former	 Rule	 was	 virtually	 unchanged	 during	 the	 twenty	 years	 from	 its	

adoption in	1998	to	its	2018	amendment.
3

in	October	 2001	 and	 resumed	 her	 regular	job	in	December 2001.	 	After	her	

symptoms	worsened, she	went	out	of	work	in	March	2005	and	was	terminated	

two	years	later.

[¶5]		In	a	July	2008	decree,	the	Workers’	Compensation	Board	found	that	

the injury	Somers	sustained	in	2000	was	compensable	and	that	she was	entitled	

to	ongoing	100	percent	partial	incapacity	benefits.		In	March 2013,	S.D.	Warren	

filed	a	petition	 for	review	seeking	 to	discontinue	benefits	on	 the	ground	 that	

Somers’s	entitlement	to	them had	ended pursuant	to	a 520-week	statutory	cap.		

See	39-A	M.R.S.	§	213(1)(A),	(4).		The	Board found	in	its	December	2014	decree

that 520	 weeks	 of	 benefits	 had	 been	 paid	 and	 that Somers’s	 permanent	

impairment	 level	 fell	 below	 the	 11.8 percent	 threshold established	 by	

Me. W.C.B.	Rule,	ch.	2,	§	1(1) (2014),	and	therefore S.D. Warren	was	entitled	to	

discontinue	payment	 of	benefits,	see	39-A M.R.S.	 §§ 205(9)(B)(2),	213(1)(A),	

(4) (2014).

[¶6]		In	May	2015,	Somers	filed	a	petition	for	reinstatement	of	benefits,	

see	39-A	M.R.S.	§	205(9)(C)	(2020),	arguing	that	S.D.	Warren had	failed	to	send	

the notice	required	by the	former	Rule and	that	she	was	entitled	to	continuing	
4

benefits	until	the	company did	so.

4		The	version	of	the Rule	in	effect	at	the	time	

provided,	

Prior	 to	cessation	of	benefits	pursuant	 to	39-A	M.R.S.A.	§ 213(1),	

the	 employer	 must	 notify	 the	 employee	 that	 the	 employee’s	 lost	

time	benefits	are	due	 to	expire.		The	notice	must	be	 sent	at	least	

21 days	 in	 advance	 of	 the	 expiration	 date,	 and	 must	 include	 the	

date	 the	 lost	 time	 benefits	 are	 due	 to	 expire	 and	 the	 following	

paragraph:	

If	you	are	experiencing	extreme	financial	hardship	due	

to	inability	to	return	to	gainful	employment,	you	may	

be	eligible	for	an	extension	of	your	weekly	benefits.	 To	

request	such	an	extension,	you	must	file	a	Petition	for	

Extension	 of	 Benefits	 within	 30	 calendar	 days	 of	 the	

date	 that	 benefits	 expire,	 or,	 in cases	 where	 the	

expiration	date	is	contested,	within	30 calendar	days	of	

a	final	decree	as	to	the	expiration	date.

Failure	 to	send	 the	 required	 notice	will	automatically	extend	 the	

employee’s entitlement	to	lost	time	benefits	for	the period	that	the	

notice	was	not	sent.

Notice	shall	be	considered	“sent”	if	it	is	mailed	to	the	last	address	

to	which	a	compensation	check	was	sent.

Me.	W.C.B.	Rule,	ch.	2,	§	5(1)	(2017).

[¶7]		In	a	2017	decision denying	Somers’s	petition,	the	Board (Elwin,	ALJ)	

construed the	 former	Rule as	 applying solely to	 cases	in	which	 an	 employer	

seeks	a	“prospective”	discontinuation	of	benefits,	rather	than	in	cases	where,	as	

 4		The	parties	stipulated	that	S.D.	Warren	had not	issued a	notice	of	Somers’s	right	to	request	an	

extension	of	benefits	for	extreme	financial	hardship	pursuant	to the	former	Rule.
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here,	a	Board	decree	allows “immediate”	discontinuation	of	benefits.		Somers

moved	 for	 further	 findings. See	39-A	M.R.S.	§ 318 (2020).		When her motion	

was	denied,	Somers	appealed to	the	Appellate	Division.		See	39-A	M.R.S.	§ 321-B

(2020).

[¶8]	 	 In	 January	 2020,	 the	 Appellate	 Division	 vacated	 the	 decision,	

construing	 the	 plain	 language	 of	 the	 former	 Rule	 to	 require	 the	 prescribed	

notice	 before S.D.	Warren	 could	 terminate	 Somers’s	 benefits.	 	 The	 Appellate	

Division further	 concluded	 that	 the	 former	 Rule	 did	 not	 exceed	 the	 Board’s	

rulemaking	 authority	 and	 that	 Somers’s	 notice	 argument	 was	 not	 barred	 by	

res judicata.	 We	 granted	 S.D.	 Warren’s	 petition	 for	 appellate	 review.	 	 See	

39-A M.R.S.	§	322(3) (2020);	M.R.	App.	P.	23.

II.		DISCUSSION

A. Res	Judicata

[¶9]		S.D.	Warren	contends	that	because	Somers	did	not	claim	a lack	of	

notice	when contesting	the	company’s 2013	petition	seeking	to	terminate	her

benefits,	the	res	judicata	doctrine	barred	her	from	doing	so when	she	sought	to	

reinstate	 her	 benefits	 following the	 Board’s 2014	 decree.	 	 The	 Appellate	

Division	disagreed,	concluding	that“[b]ecause	S.D. Warren	did	not	cease	paying	

benefits	 until	 after	 the	 2014	 decree,	 the	 factual	issue	 of	whether	 notice	was	
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provided	to	Ms.	Somers	was	not	before	 the	board	during	that	litigation.”		We	

review	de	novo	the	Appellate	Division’s determination that	res	judicata	did	not	

bar	Somers’s	petition	to	reinstate	her	benefits.		See	Portland	Water	Dist.	v.	Town	

of	Standish,	2008	ME 23,	¶	7,	940 A.2d	1097.

[¶10]		“[V]alid	and	final	decisions	of	the	Workers’ Compensation	Board	

are	subject	to	the	general	rules	of	res	judicata . .	.	.”		Bailey	v.	City	of	Lewiston,	

2017 ME 160,	 ¶	 10,	 168	 A.3d	 762	 (quotation	 marks	 omitted).	 	 The	 claim	

preclusion	branch of	res	judicata	“forecloses	relitigation	of	claims	only	when	

(1)	 the	same	parties	 or	 their	privies	are	involved	in	both	actions;	 (2)	a	 valid	

final	judgment	was	entered	in	the	prior	action;	and	(3)	the	matters	presented	

for	decision	in	the	second	action	were,	or	might	have	been,	litigated	in	the	first	

action.”		Berry	v.	MaineStream	Fin.,	2019	ME	27,	¶	8,	202	A.3d	1195	(quotation	

marks	omitted).		It	is	the	third	element	that	is	at issue	here.

[¶11]	 	 We	 agree	 with	 the	 Appellate	 Division’s	 determination that	

res judicata does	 not	 bar	 Somers’s	 petition	 for	 reinstatement	 of	 her	 benefits	

because, prior	 to	 the	 decree	 allowing S.D.	 Warren	 to	 discontinue paying

benefits,	 she could	 not	have	 known	 that	the	company would	 fail	 to	 send the

notice	required	by	the	former	Rule.		See	39-A	M.R.S.	§	205(9)(B)(2) (providing

that	an	employer	“may	not	reduce	or	discontinue	benefits	until	the	matter	has	
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been	resolved	by	a	decree	issued	by	an	administrative	law	judge”).		S.D.	Warren	

was	not	required	to	send	the	notice	prospectively—although	it	could	have	done	

so	and	avoided	much	 of	 the	 obligation	 that	 the	Appellate	Division	ultimately	

ordered	it	to	pay5—and	so,	as	the	Appellate	Division	determined,	the	company	

“did	not	violate	the	[former	Rule]	until	it	ceased	paying	benefits.”		Accordingly,	

the	notice	issue	was	not	before	the	Board	in	the	2013 action,	and	thus was	not	

barred	by	res	judicata in	Somers’s appeal	to	the	Appellate	Division.		See Berry,	

2019	ME	27,	¶	8,	202	A.3d	1195.

B. Application of	the	Former	Rule

[¶12]	 	 S.D.	 Warren next	 contends	 that	 the	 Appellate	 Division	 erred	 in	

concluding that	 the	 former	 Rule	 applied	 to	 require	 notice	 in	 a	 case	 like	

Somers’s,	that	is,	after	the	Board	had issued	a	decree	allowing	an	employer	to	

terminate	 benefits,	 because	 that	 construction	 is	 in	 conflict	 with	 (1)	 an	

employer’s	statutory	right	to	discontinue	benefits	immediately	upon	issuance	

of	the	decree	and	(2)	the	presumptive 520-week	limit on	benefits	for	an	injured	

worker	 at Somers’s	 level	 of	 incapacity.	 	 See	 39-A	 M.R.S.	 §§ 205(9)(B)(2),	

213(1)(A),	(4).

 5		At	oral	argument,	Somers	reported that	S.D.	Warren	sent	the	notice	required	by	the	former	Rule	

after	the	Appellate	Division	issued	its	decision.
8

[¶13]		We	disagree.		On	questions	of	law6 we	review	the	decision	of	the	

Appellate	 Division	 directly and	 deferentially, “afford[ing] appropriate	

deference	to	the	Appellate	Division’s	reasonable	interpretation	of	the	workers’

compensation	 statute	 and	 .	 .	 . uphold[ing] the	 Appellate	 Division’s	

interpretation	unless	the	plain	language	of	the	statute	and	its	legislative	history	

compel	a	contrary	result.”		Bailey,	2017	ME	160,	¶	9,	168	A.3d	762	(citation	and	

quotation	marks	omitted);	see	Bridgeman	v.	S.D.	Warren	Co.,	2005 ME	38,	¶	11,	

872	A.2d	961	(“We	give	great	deference	to	Board	rules	interpreting	the	Act,	and	

we	have	encouraged	the	Board to	enact	rules	to	fill	in	the	‘gray	areas’ that	were	

intentionally	left	in	the	Act.”).

[¶14]		S.D. Warren’s	burden	is thus	a	significant	one. In	Bailey, we	cited	

Kroeger	 v.	 Department	 of	 Environmental	 Protection,	 2005	 ME	 50,	 ¶	 7,	

870 A.2d 566, for	the	proposition	that	“we	will	only	vacate	an	agency’s	decision	

where	that	decision	violates	the	Constitution	or	statutes;	exceeds	the	agency’s	

authority;	is	 procedurally	unlawful;	is	 arbitrary	 or	capricious;	constitutes	an	

abuse	of	discretion;	or	is	affected	by	bias	or	an	error	of	law.”		2017	ME	160,	¶	9,	

168	A.3d	762	(alteration	and	quotation	marks	omitted).

 6		A hearing	officer’s or	ALJ’s	findings	of	fact	are	final,	absent	fraud.		39-A	M.R.S.	§§	318,	322(3)

(2020).
9

[¶15]		No	such	error	is	present	here.		The	plain	language	of	39-A	M.R.S.	

§ 205(9)(B)(2)	does	not	give	an	employer	an	automatic	right	 to	immediately	

cease	paying benefits	without	giving	notice	to	the	employee as	required	by	the	

former	Rule.		The	statute	provides that

[i]f	an	order	or	award	of	compensation	 or	compensation	scheme	

has	been	entered,	the	employer .	.	.	shall	petition	the	board	for	an	

order	 to	 reduce	 or	 discontinue	 benefits	 and	 may	 not	 reduce	 or	

discontinue	benefits	until	the	matter	has	been	resolved	by	a	decree	

issued	by	an	administrative	law	judge.

39-A	M.R.S.	§	205(9)(B)(2).		The	statute thus	directs that	an	employer	may	not	

cease	paying	benefits	to	an	employee	before	the Board	issues	a	decree; it	does	

not,	 however,	 say	 that	 the	 issuance	 of	 a	 decree	 is	 the	sole requirement	 for

discontinuing benefits.		Although	the	statute	allows an	employer	to	“reduce	or	

discontinue	benefits	.	.	. pending	a	motion	for	findings	of	fact	and	conclusions	of	

law	or	pending	an	appeal	from	[the] decree,”	id.,	it	does	not	bar	the	Board	from	

imposing	 other	 requirements on	 the	 termination	 of	 benefits	 that	 are not	

addressed	in	the	statute but	are	consistent	with it.		The	former	Rule	imposes	

just	such	a	requirement.

[¶16]	 	 Section	 205(9)(B)(2)	 must	 be	 read	 in	 conjunction	 with	 section	

213,	which provides	that,	for	workers	with	Somers’s	level	of	incapacity,
10

an	employee	is	not	eligible	 to	 receive	compensation	.	 .	 . after	 the	

employee	has	received	a	total	of	260	weeks[7] of	compensation .	.	.	.

The	board	may	in	the	exercise	of	its	discretion	extend	the	duration	of	

benefit	 entitlement	 beyond	 260	 weeks	 in	 cases	 involving	 extreme	

financial	hardship	due	to	inability	to	return	to	gainful	employment.

39-A	M.R.S.	§	213(1)(A)	(emphasis	added);	see	20	Thames	St.	LLC	v.	Ocean	State	

Job	 Lot	 of	Me.	 2017,	 LLC,	 2020	ME	 55,	 ¶	 8,	 231	 A.3d	 426	 (“We	interpret	 the	

statute	in	the	context	of	the	entire	statutory	scheme	.	.	.	.”).		Section	213(1)(A)	

explicitly gives the	Board	the	broad	discretion to	determine when	the “extreme	

financial	hardship” exception	 to	 the	presumptive cap applies;	 that	discretion	

includes	the	latitude	to	establish	notice	requirements.		The	Board’s authority to	

extend	benefit	payments,	reflected	in	the	language	of	the	notice	required	by	the	

former	Rule—“[i]f	you	are	experiencing	extreme	financial	hardship	.	.	.	you	may	

be	 eligible	 for	 an	 extension	 of	 your	 weekly	 benefits,”	 Me. W.C.B.	 Rule,	 ch.	 2,	

§ 5(1)	 (2017)—exists	whether	the	employer	 seeks	 to	end	benefits through a	

certificate	 sent	 to	 the	 employee	 or	 by	 Board	 decree.	 	 See	 39-A M.R.S.	

§ 213(1)(A).

[¶17]	 	 Furthermore,	 contrary	 to	 S.D.	 Warren’s	 contention,	 the	 former	

Rule	does	not, as	applied	in	this	case,	“expressly	mandate[]	that	the	durational	

 7		Although	the	statute	presumptively	limits	benefits	to	260	weeks,	under	specified	conditions	the	

presumptive	limit	may	be	extended	to	a	maximum	of	520	weeks.		39-A	M.R.S.	§	213(4)	(2020);	see	

Buckley	v.	S.D.	Warren	Co.,	2010 ME	53,	¶	9	&	n.4,	997	A.2d	747.
11

cap	 is	 extended	 beyond	 the	 defined	 eligibility	 limit	 set	 by	 the	 Legislature.”		

Rather,	the	Rule was	adopted	pursuant	 to	 the	Board’s	discretion	to	 fill	in	 the	

“gray	 area[]”	 intentionally	 left	 in	 section	 213(1)(A)’s	 exception	 for	 extreme	

financial	hardship,	which	provides	 that	 “[t]he	board may	in	 the	exercise	of	its	

discretion	extend	the	duration	of	benefit	entitlement.” 39-A	M.R.S.	§	213(1)(A)	

(emphasis	 added);	see	Johnson	 v.	 Home	 Depot	 USA,	 Inc.,	 2014	 ME	 140,	 ¶	 10,	

106 A.3d	 401	 (“We	 have	 recognized .	 .	 . that, subject	 to	 concrete	 statutory	

requirements,	there	are	‘gray	areas’ in	the	Workers’ Compensation	Act	that	the	

Legislature	 knew	 would	 require	 ‘flexible	 and	 realistic	 solutions.’”	 (quoting	

Bridgeman,	2005	ME	38,	¶ 11,	872	A.2d	961)).		The	Board’s	broad	discretion	

extends	 to	 requiring	 that	 notice	 of	 the	 hardship	 exception	 be	 given	 to	 the	

employee.	 	 As	 we	 said	 in	 discussing	 another	 section	 of	 the	 Workers’	

Compensation	Act, “notice	provisions	.	.	.	would	be	rendered	meaningless	if	the

employee’s	rights were	cut	off	before	receiving	notice	of	those	rights.”		Graves	

v.	Brockway-Smith	Co.,	2012 ME	128,	¶	18,	55 A.3d	456.

[¶18]	 	Our	 jurisprudence and	the	 decisions	 of the	 Board	 support	 our	

conclusion	that	S.D.	Warren	was	required	to	give	Somers	notice	pursuant	to	the	

former	Rule	before	 terminating	her	benefits.		In	Bridgeman we upheld	a	rule	

that	attached	a	greater	penalty	than	that	specified	by statute	to	an	employer’s	
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failure	 to	 file	a	notice	 of	controversy	within	 fourteen	days	 of	 the	employee’s	

notice	of	a claim.		2005	ME	38, ¶¶	2-3,	12,	15,	872	A.2d	961.		The	rule	at	issue	

in	Bridgeman imposed	 the	same	penalty	on	 the	employer	as	does	the	 former	

Rule	 at	 issue	 in	 this	 case—an	 automatic	 continuation of	 benefits	 until	 the	

employer’s	compliance	with	a notice	requirement.		Id.	¶	7;	see	Me.	W.C.B.	Rule,	

ch. 2,	 §	 5(1) (2017).	 	 We concluded	 that	 the	 rule’s imposition	 of a	 greater	

penalty	than	the	statute	“[did] not	compel	a	conclusion	that	the	Board	exceeded	

its	authority	in	promulgating	[the	rule] to	implement	the	statute	and	carry	out	

the	purposes	of	the	Act.”		Bridgeman,	2005 ME	38,	¶	15,	872	A.2d	961.

[¶19]	 	 Additionally,	 during	 the	 twenty	 years	 that	 the	 former	 Rule	

remained	 essentially	 unchanged	 following its	 enactment,	 see	 supra	 n.3,	 the	

Board	released	a	number	of	decisions	that	predicted the	Appellate	Division’s	

interpretation—some against	 S.D.	 Warren.	 	 See	 Waters	 v.	 Sappi	 Fine	 Paper,	

W.C.B. 99-01-98-48	(Me.	2017)	(Jerome,	ALJ)	(“Whether	benefits	are	being	paid	

voluntarily	or	by	Board	order,	benefits	will	be	‘due	to	expire’	after	the	30 day	

notice	period	required	by	[the	former Rule] . .	.	.”);	Bridgeman	v.	S.D.	Warren Co.,	

W.C.B.	 98-019729	 (Me.	 2016)	 (Collier, ALJ)	 (concluding	 that	 sections	

205(9)(B)(2)	and	213(1)	were not	mutually	exclusive	as	S.D.	Warren	suggested

and	 that	 the	 notice	 rule	 was	 applicable);	 Smith	 v.	 Cummings	 Health	 Care,	
13

W.C.B. 00-00-53-14	 (Me.	 2008)	 (Pelletier,	HO)	 (“[The	Rule]	 requires	 that	 the	

notice	 with	 the	 required	 language	 be	 sent	 to	 the employee before benefits	

actually	cease,	whether	or	not	 the	expiration	date	is	set	by	 the	insurer	or	by	

Board	decree.”).8

[¶20]	 	 S.D.	 Warren	 does	 not	 cite	 any	 decision apart	 from the	 ALJ’s	

decision	 in	 this case to	 establish that	 the	 Appellate	 Division’s	 interpretation	

here	is	inconsistent with	longstanding	Board	practice.		To	the	contrary,	when	

the	 Rule	 was	 amended	 in	 2018, the	 Board	 made	 it	 explicit	 that	 notice	

concerning	an	employee’s	 right	 to	 request	an	extension	 of	benefits	based	 on	

extreme	financial	hardship	must	be	given	to	the	employee	when a	Board	order	

has	been	entered.		Me.	W.C.B.	Rule,	ch.	2,	§ 5(1-A) (2000).		Although	the	current	

rule	provides	that	the	notice	must	be	included	in	the	decree	itself, as	opposed	

to	being	 sent	by	 the	 employer,	id.,	if	S.D.	Warren’s	argument—asserting	 “the	

fallacy that	 in	 litigated	 cases	 the	 financial	 hardship	 extension	 notification	 is	

necessary”—were	correct,	then	notice would	not	be	required at	all.

[¶21]		Finally,	as	we	have	noted,	see	supra ¶ 11,	S.D.	Warren	could	have	

satisfied	the	former	Rule’s	requirement	that	it	notify	Somers	that	her	benefits	

were	“due	 to	expire,”	Me.	W.C.B.	Rule,	ch.	2,	§ 5(1)	(2017),	by	applying	basic	

 8		See	 also	Adams	v.	Presque	 Isle	Nursing	Home,	W.C.B.	95-017695H	(Me.	2008)	(Pelletier,	HO);	

Chaput	v.	Adecco	N.	Am.,	LLC,	W.C.B.	01-017391	(Me.	2007)	(Goodnough,	HO).
14

math	and	sending	the	notice twenty-one	days	before	reaching	the	presumptive	

520-week	 benefit	 limit.	 	We	 reject	 S.D.	 Warren’s	 argument	 that	 it	 could	 not	

know	the	exact	date	the	Board	would	enter	its	decree	and	so	could	not	know	

when	it	should	send	Somers’s	notice—the	former	Rule	requires	notice	“at	least

21	days	in	advance	of	the	expiration	date,”	Me. W.C.B.	Rule,	ch.	2,	§ 5(1)	(2017)

(emphasis	added),	not	exactly	twenty-one	days	in	advance.		S.D.	Warren	always	

knew	 when	 Somers’s	 benefits	 could be	 terminated—at	 520 weeks—and	 by	

referencing	 that	 date	 and	 sending	 notice	 twenty-one days	 in	 advance	 of	 it

(or before), the	company could	have	 satisfied	 the	 former	Rule	 and	protected	

itself	against	the	judgment	about which	it	now	complains, regardless	of	when	

the	 Board’s	 decree	 was	 actually entered.	 Had	 S.D.	 Warren	 done	 so,	 Somers	

would	have	known	exactly	when	her	petition	for	an	extension	of	benefits	was	

due:	“within	30	calendar	days	of	the	date	that	benefits	expire,	or,	in	cases	where	

the	expiration	date	is	contested,	within	30 calendar	days	of	a	final	decree	as	to	

the	expiration	date.”		Me.	W.C.B.	Rule,	ch.	2,	§ 5(1)	(2017).

[¶22]	 	In	 sum,	 affording	 the	 Appellate	 Division’s	 decision	 appropriate	

deference,	we	discern	no	error.		See	Bailey,	2017	ME	160,	¶	9,	168	A.3d	762;	

Johnson,	 2014	 ME	 140,	 ¶	 10,	 106	 A.3d	 401;	 Bridgeman,	 2005	 ME	 38,	 ¶ 11,	

872 A.2d	961.
15

The	entry	is:

The	decision	of	the	Workers’	Compensation	

Board	Appellate	Division	is affirmed.

Daniel	F.	Gilligan,	Esq.(orally),	Troubh	Heisler	LLC,	Portland,	for	appellants	S.D.	

Warren	Company	and	Constitution	State	Services

James	J.	MacAdam,	Esq. (orally),	Nathan	A.	Jury,	Esq.,	and	Donald	M.	Murphy,	

Esq.,	MacAdam	Jury,	P.A.,	Freeport,	for	appellee	Lorraine	Somers

Robert	 W.	 Bower,	 Jr.,	 Esq.,	 and	 David	 A.	 Goldman,	 Esq.,	 Norman	 Hanson	 &	

DeTroy,	 LLC,	 Portland,	 for	 amici curiae	 Maine	 Workers’	 Compensation	

Coordinating	Council	and	Maine	Council	of	Self-Insurers	

Workers	Compensation	Board	Appellate	Division	docket	number	17-0022

FOR	CLERK	REFERENCE	ONLY