MAINE SUPREME JUDICIAL COURT                                                 Reporter of Decisions
Decision: 2013 ME 28
Docket:   WCB-12-477
Argued:   February 12, 2013
Decided:  March 12, 2013

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
             JJ.


                         ESTATE OF GREGORY SULLWOLD

                                               v.

                             THE SALVATION ARMY et al.

SILVER, J.

         [¶1] The Salvation Army and Chesterfield Services, Inc. have petitioned for

our discretionary review of a decision of the Workers’ Compensation Board

(Knopf, HO) pursuant to 39-A M.R.S. § 322(1) (2011) and M.R. App. P. 23.1 The

Board awarded death benefits to the Estate of Gregory Sullwold. We conclude that

the appeal is not properly before us, however, and so we dismiss the petition.

                        I. BACKGROUND AND PROCEDURE

         [¶2] On February 23, 2010, Gregory Sullwold, an employee of the Salvation

Army who managed its investment portfolio, died at his home, part of which

served as his office. Sullwold’s spouse filed a petition for death benefits with the

Board on January 31, 2011.               A hearing officer conducted a hearing on

January 19, 2012, and issued an award in favor of the Estate on May 4, 2012.
   1
     Maine Rule of Appellate Procedure 23 was amended effective September 1, 2012, as we describe
below.
2

         [¶3]   The Salvation Army sought additional findings and conclusions

pursuant to 39-A M.R.S. § 318 (2012) and requested that the hearing officer report

the case to the Board pursuant to 39-A M.R.S. § 320 (2011). The hearing officer

issued additional findings and conclusions on August 6, 2012, and initially

declined to report the case. Then, on August 9, 2012, after the Salvation Army’s

request for reconsideration, the hearing officer reported the case to the Board,

which voted to deny the request for review on September 11, 2012.

         [¶4] The Salvation Army filed notices of appeal with the clerk of this Court

and with the newly revived Workers’ Compensation Board Appellate Division.

The Estate moved the Appellate Division to dismiss the appeal before it, and the

Salvation Army moved us to stay its appeal before us until the Estate’s motion was

resolved. We denied the Salvation Army’s motion but noted that the parties were

free to address in their submissions the issue of where the appeal was properly

filed.    The Appellate Division initially issued a scheduling order but then

indefinitely suspended that order pending our decision on the Salvation Army’s

petition. We directed the parties to brief the merits of the appeal and the question

of whether the appeal is properly before the Appellate Division or us.

                                  II. DISCUSSION

         [¶5] On April 14, 2012, the Maine Legislature enacted P.L. 2011, ch. 647,

which amended the Maine Workers’ Compensation Act of 1992 in a variety of
                                                                                                      3

ways.       Legis. Rec. H-1535, S-2280 to -2281 (2d Reg. Sess. 2012).                               The

amendments became effective August 30, 2012, the general effective date for the

second regular session of the 125th Legislature. P.L. 2011, ch. 647. Pursuant to

the amended Act, appeals from decisions of individual hearing officers now

proceed to the Appellate Division as a matter of right and not to the Law Court on

a discretionary basis. See id. §§ 20-21 (codified at 39-A M.R.S. §§ 321-A, 321-B,

322 (2012)).

        [¶6] On August 2, 2012, we, acting as the Supreme Judicial Court, amended

Maine Rule of Appellate Procedure 23 to reflect the changes in the statute. 2012

Me. Rules 13 (amending M.R. App. P. 23) (effective Sept. 1, 2012). The rules

amendment order included the following transition provision:

              These amendments shall be effective and shall govern appeals
        from hearing officer, Appellate Division, or Workers’ Compensation
        Board decisions published on and after September 1, 2012. Final
        decisions published before September 1, 2012, and not subject to
        post-decision motions pending on or filed after September 1, 2012,
        may be appealed pursuant to these Rules as in effect before
        September 1, 2012.

Id. ¶ 2.2



  2
      A portion of the advisory note to the rule amendment addresses the transition provision:

            The transition provision recognizes that there may be some appeals from hearing
        officer decisions published before September 1. The process that applied before adoption
        of these amendments would apply to appeals of such decisions. It would be anticipated
        that when a hearing officer issues a decision before September 1, but decides a motion to
        reconsider, a motion to amend, or a request for further findings after September 1, the
4

        [¶7] Accordingly, all workers’ compensation cases in which final decisions

were entered before the effective date of the new provisions continue to be directed

to the Law Court for discretionary review. For those cases without final decisions

before September 1, 2012, the initial review must go to the Appellate Division.

        [¶8] Thus, we may not review the Salvation Army’s petition because the

hearing officer’s additional findings and conclusions, although issued on

August 6, 2012, were subject to a post-decision referral to the Board pending on

September 1, 2012. The final action of the Board did not occur until September

11, 2012. The appeal from the hearing officer’s final decision is properly before

the Appellate Division and not us because the Board declined review on or after

September 1, 2012.

        The entry is:

                        Petition dismissed.




        new practice of appeal to the Appellate Division would govern appeals of such hearing
        officer rulings.

    M.R. App. P. 23 Advisory Note to 2012 amend.
                                                                               5

On the briefs and at oral argument:

        Arthur J. Lamothe, Esq., Brunswick, for appellant The Salvation Army

        G. William Higbee, McTeague Higbee, Topsham, for appellee Estate of
        Gregory Sullwold



Workers’ Compensation Board case no. 1001339
FOR CLERK REFERENCE ONLY
