*1 mere prejudiced delay. The asser
tion of a meritorious claim under circum Lenwood DILLINGHAM opposition stances where the be prejudiced by delay beyond the al PRODUCTS, ANDOVER WOOD INC. necessarily lowed under court rule will not and Commercial Union Insurance Co. 41(b)(1). preclude dismissal under Rule Weeks, Burleigh v. Court of Supreme Judicial Maine. 1981), on the this Court focused attention Argued June terminology provi rule mandatory Decided Nov. sion its use terms “shall dismiss prosecution” an action for want of spelled
circumstances out therein. Charac
terizing “essentially auto the rule mechanism,” further stated that
matic delinquent plain-
[o]nly showing contrary,” “good
tiff of ad- cause discretion of the
dressed to the sound Hotels, Inc., court, A.E.
trial Emerson v. (1979),
Me., will n. 41(b)(l)’s command that
overcome Rule plaintiff has allowed to
an action that the completely dormant for more than
lie more, must, years without be dis-
two
missed. mere fact that the merits, strong and that case on the money
involves a substantial amount of dis-
will not in itself establish an abuse part on the of the court dismiss-
cretion proceedings prejudice pursu- with 41(b)(1). Lajoie, to Rule Chute v.
ant See (Me.1978). entry will be. prejudice af-
Judgment of dismissal with
firmed. concurring.
All *2 McKUSICK, NICHOLS, C.J.,
Before ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.
SCOLNIK, Justice. Products, Inc., and Andover Wood appeal insurance carrier from a decision of Commission, Compensation the Workers’ Division, Appellate affirming an award of compensation made the Commission in response to a for filed by Dillingham. appeal, Lenwood On Andover Wood Products and its insurance carrier contend, alia, that inter there was insuffi- cient evidence the restoration of compensation and that award should .the barred doctrine res judicata. We conclude that both the resto- compensation ration of and the decision affirming Appellate that restoration Division a misapplication involved of the governing review, petitions statute for § (Supp.1983). Accordingly, M.R.S.A. decision reverse the Division. Dillingham employed as a Products, Inc.,
laborer for Andover Wood
of May,
Andover.
or about the 22nd
1981,Dillingham slipped
piece
on
wood
work, incurring
injury
while at
to his
subsequently
lower
He
back.
filed
compensation
for
with Workers’
and,
Commission,
Compensation
hearing,
single
Commissioner awarded
compensation
incapacity
him
on
based
total
July 30, 1981,
from
17 to
and on
June
partial incapacity
July
August
from
The Commissioner ruled
that
Dillingham had “failed to establish
preponderance
the evidence a causal con-
continuing subjective
nection between his
August
complaints of
22, 1981,”
May
and his
incident of
employee
engaged
and that
has not
“[t]he
in a
search for suitable work.”
reasonable
MeTeague, Higbee Libner,
&
G. William
Brunswick,
Higbee,
MeTeague
Patrick
later,
A
short time
filed
(orally),
plaintiffs.
for
review,
seeking
for
restoration of
Wheeler,
Kelleher,
Arey
incapacity
Kelle-
based on
William
total
(orally),
answer,
Waterville,
August
her
from
In their
defendant.
injury
Andover Wood Products and its insurance
undiscovered
was,
pri-
carrier
raised the
defense of
consequently,
affirmative
ruled
Following
hearing, a
decree,
390;
sec-
see
444 A.2d at
ond Commissioner restored
Case,
452, 454-55,
131 Me.
163 A.
Devoe’s
from
based
June
(1933).
alleged
No such
*3
(the
award) through
1982
date of the initial
us,
in the case before
however.
present.
ruling,
In his
the Commission-
§
1981,
514,
By
(effective Sept.
4
P.L.
ch.
“completely
er stated that
was
aware of
18, 1981),
legislature
re-
repealed and
prior
decision” in this mat-
a
placed
39,
previous
section 100 of Title
ter,
ruling
but noted that his
was based on
governing petitions
incapaci-
for review of
relationship
“different evidence of causal
100.
ty, with a new section
39 M.R.S.A.
disability.”
Appellate
Division
and
§
provides
100
now
subsequently affirmed the restoration of
petition
[u]pon
party,
of either
a sin-
compensation in a Memorandum of Deci-
gle
any
commissioner shall
com-
sion,
reaching
preclu-
the issue
without
required
pensation payment
scheme
appellants.1
by the
sion advanced
purposes
ordering
Act for the
this
inception
Since the
of Workers’
relief,
justice
as the
of the case
1915,
Compensation
Maine,
law in
see P.L.
Increase, decrease,
res-
require:
...
§§
(codified
50,
295,
ch.
1-51
at R.S. ch.
compensa-
toration
discontinuance
§§
(1916)),
consistently
this
1-48
Court has
granting
for
relief
tion
The basis
....
petition
compensa
a
for further
held that
under this section is as follows ....
change
petition
tion must address
brought by
the first
for review
circumstances,
er’s
and that such a
action,
party
an
the commissioner
to
any prior decree was correct
assumes that
relief,
appropriate
if
shall determine
upon,
specifically
as to issues
ruled
see
any,
by determining
under this section
State,
387,
Canning v.
390
present degree of inca-
employee’s
1982);
v. Midland-Ross
Cana
Dufault
_
purposes of a first
pacity
For
200,
(Me.1977);
da, Ltd., 380 A.2d
203
section, evidence
brought
under this
Case, 131 Me.
163 A.
Comer’s
condition at
employee’s
medical
(1932);
Case,
Healey’s
124 Me.
270
...
the time of an earlier determination
(1924).
equally
A.
It is
well
prove
to
only if it tends
is relevant
established that matter ruled
.... Once
relitigated simply
prior decree will not be
obtained a deter-
has
party
evidence,2
newly
discovered
see
section, it is the bur-
this
mination under
390;
at
Wood Cives
on
proceedings
in all
party
den of that
Corp., 438 A.2d
Construction
subsequent petitions under this sec-
Case,
(Me.1981);
131 Me. at
Comer’s
evi-
by comparative medical
Case,
prove
270;
tion to
121 Me.
A. at
Conner’s
earning inca-
course,
employee’s
(1921).
dence that
A.
Of
an
work-related
pacity attributable
employee may petition
compensation
for
enactment,
statutory
legislature
has re-
By
made no
We note that the
Division
However,
“newly
cently
exception
discov-
generated
its decision.
for
mention
this issue in
judicata
diligence
was raised
the defense of
due
could not
ered evidence which
respondents
in their answer to
prior
[ini-
to the time the
discovered
have been
part of
compensation, which was
further
prior
payment
was initiated
scheme
tial]
Appellate Division.
available to the
record
hearing
or decree was
the award
which
Moreover,
argued
appeal
that the
no one on
has
(Supp.1983). No
§
M.R.S.A. 99-C
based.” 39
preclusion
the Division.
issue was not before
proven
discovery
alleged or
in the case
such
was
posture
this
we feel that
Given the
at bar.
way
disposition by
Decision
of Memorandum of
inadequate response
the issues raised
was an
herein.
changed
selves,
ample
since that determina-
opportunity
amend,
tion.
still show as a matter of law that
cognizable
there
no
issue.
§ 100(1)(A)
(2) (Supp.1983).
39 M.R.S.A.
appellee’s position
It is
provi-
that this
(citation omitted).
theless, do evidentiary not construe the Remanded to the Division for provisions contained in section 100 af as remanding entry judgment the case fording hearing petitioner de novo the deny the with directions to the Commission previously the decided issue of causa petition for review. nothing statutory tion. We find the language that cause us to our alter NICHOLS, McKUSICK, C.J., and ROB- view, expressed in Canning, that WATHEN, JJ., concurring. ERTS and any adjudicative
the commission like
body
legitimate
bringing
interest
GLASSMAN,Justice, dissenting.
litigation
end,
it
before
eventual
respectfully
I
I
dissent because
believe
though
plead-
and liberal
the standard of
ing
be,
here
as
may proper-
issue
cannot be dismissed
must
the commission
ly
notes,
pleadings
dismiss a case if the
them-
As
court
under
§ 100,1
original
proceeding,
In the
Canning
M.R.S.A.
amendment
had
compara-
Canning
had
decided
not
petitioner
to submit
Commissioner
change in
incident.
showing
tive medical
suffered a heart attack
work
evidence
initially
that Can-
incapacity
after the date of The Commissioner
found
ning
pre-existing
original
decision or date
suffered from a
arterio-
Commission’s
temporar-
that
agreement
sclerotic heart condition
was
of the execution of
between
painful by the
ily
injury.
made more
parties approved by
the Commission
found
compensation payment scheme
Id. at 391.
Commissioner
fur-
before a
increased, diminished, restored,
though
caused
ther that
would be
Canning
statutory
totally disabled
dur-
new
work incident
or discontinued. Under the
hospitalization,
petitioner,
employer
sub-
scheme a
whether
pains
produce
sequently
Chest
thereaft-
employee,
only
such evidence
subsided.
need
underlying
finding of the
caused
condition.
the factual
er were
will
recurring pain
compensable
not
degree of The
present
Commission as to the
agree
underlying
I
condition did not
employee.
provide
Canning’s employment.
Id.
100 does not
arise out
new section
all
with a
de novo on
original,
final
instant
However,
litigated.
issues
of the Commission was that
indeed,
but,
only
statute
allows
Dillingham suffered a work-connected low-
requires
to review
injury.
attempt
There has been no
er back
*5
petition
party
“employee’s
of either
the
issue,
relitigate
nor
issue of his
the
present degree
incapacity” due to an
of
28,1982,
incapacity prior to June
as a
work
injury.
established work-related
Unquestionably, Dill-
injury.
of that
result
resulting from his
us,
Dilling-
ingham’s incapacity
case
In the
before
received,
had
for,
injury prior
of
to June
applied
and
an award
work
ham
proper-
working
finally determined.
issue
injuries incurred
compensation for
by the
Products,
and determined
Com-
ly
Inc. For the
addressed
for Andover Wood
petition for
Dillingham’s first
expressed
upon
in
the mission
reasons
both
incapacity, if
present
his
work
finding
injury and
review was
of a work-related
initial
which resulted
finding
degree
incapacity pri-
any, since June
of
Furthermore,
28,1982,
injury.
his
are
from
or to June
Can-
ample, competent evidentia-
Dillingham’s peti-
record reflects
1. M.R.S.A. § section, part: petition brought this evi- pertinent under first employee’s medical condition at petition dence of Upon of ei- 1. Relief available. ap- determination party, single an earlier shall review the time of ther any compensation payment commissioner required only it agreement if tends proved scheme is relevant ordering purposes incapacity. present this Act for the prove relief, justice following as the of the case obtained a party and B. Once require: section, it is bur- under this Increase, decrease, or dis- A. restoration proceedings on party in all den of that compensation; or continuance petitions under this section subsequent reduction, Extension, or dis- restoration B. comparative prove by medical evidence that rehabilitation. of vocational continuance earning incapacity attributable employee’s grant- basis review. The 2. Standard for ing changed injury has since to the work-related this is as follows: relief under section that determination. brought first for review A. Dillingham’s court’s discussion action, party the commissioner to an being brought appears it is to assume for review relief, any, appropriate if shall determine (2)(A) (2)(B). pro- Subsection under subsection determining employ- this under section proper for review. standard vides present degree need ee’s hearing, At the present infringed Commission found a way no—in upon causal Dillingham’s connection between the Commission’s decision and adjudication the final all issues pain current back and his work-related up case to the date of that decision. injury May back 1981. The Commis- sion based extremely “on the Nothing language in the of this statute testimony Dillingham” interpreted by credible of Mr. and is con- legislative testimony trary on the medical intent. a Dr. Green- We stated in Kelley Halperin, v. leaf. The Commission found that “Len- (Me.1978),that “the construction of stat- Dillingham totally incapacitated wood duty ute utilized those whose is to unemployable and from June 1982 to operative make the statute is entitled to ... due to the back great by a deference court when called May 21, Additionally, 1981.” it is worth By failing to construe the statute.” noting precisely facts: Commission, to affirm the our ig- court Dillingham years old, Mr. is 88 has an nores its own sound advice. this eighth grade education and lives with Co., as in Paper Dunton Eastern Fine parents Sumner, in West 19 miles from (Me.1980), we have no apparent South Paris. It is ... from his role but to determine “whether there is testimony Dilling- at the that Mr. competent evidence to the Commis- ham exaggerated obvious findings.” Clearly, sioner’s such evidence back agony throughout tes- exists here. timony. The Commission finds also that judicata Res is no bar to a first Dillingham Mr. difficulty had under- present incapaci- founded on a work-related standing questions simple dem- ... and ty. proceeding Because this determined a very vocabulary. onstrated a limited present incapacity previ- resulting from a charitably, Stated Mr. ously injury, identified work-related be- probably difficulty performing even sufficiently cause the supported evidence simple Dilling- mental tasks. Given Mr. *6 and the award of experience doing ham’s work heavy un- compensation, further skilled work in the woods and saw mills ruling Commission’s did not address issues of western Maine the employee ... already authoritatively which had no vocational employment, assets for finally settled, compen- I would affirm the now that back prevents heavy sation award. lifting and bending. Sedentary physical capacity considering irrelevant the employee’s qualifications. limited
From these facts the Commission reached
its conclusion that was entitled 28,1982
to total from June present. Significantly, this first GILBERT, Joseph et al. tion for earning incapacity resulting from his CENTER, MAINE al. MEDICAL et previously adjudicated inju- work-connected Moreover, ry. he made no claim for week- Supreme Court Maine. Judicial ly compensation prior to June Argued Nov. Clearly date of the earlier decision. Decided Nov. get earn- could not a redetermination period. incapacity for that The time covered in Commission’sdecision on the for review—from June