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June 11, 1980


Appeal from the Workers' Compensation Commission.

Before McKUSICK, C.J., and Wernick, Godfrey, Glassman and Roberts, JJ.

The opinion of the court was delivered by: Godfrey, Justice.

Stanley Dobson injured his back in January, 1966, while employed by Quinn Freight Lines. Quinn, a self-insurer, paid workers' compensation benefits to Dobson pursuant to two approved agreements. The payment of benefits ended, by agreement, in October, 1967. Dobson re-injured his back in August, 1975, when he was no longer working for Quinn.

In June, 1977, Dobson filed a petition for medical expenses, naming Quinn as the responsible employer because of a causal connection between the 1966 injury and the 1975 re-injury. The Commission found a causal relationship between the injuries but dismissed the petition on the ground that it was barred by the ten-year limitation period provided in section 95 of title 39 of the Revised Statutes as that section read in January, 1966, when the original injury occurred. From a pro forma decree of the Superior Court, Dobson duly appealed to this Court. We sustain the appeal.

The sole issue is whether the Commission erred in applying the version of section 95 in force at the time of Dobson's original accident instead of the present version. The relevant amendment became effective in February, 1966. At the time of Dobson's original injury, section 95 provided as follows:

    Any employee's claim for compensation under this Act shall be
  barred unless an agreement or a petition as provided in section
  94 shall be filed within 2 years after the date of the
  accident. Any time during which the employee is unable by
  reason of physical or mental incapacity to file said petition
  shall not be included in the period aforesaid. If the employee
  fails to file said petition within said period because of
  mistake of fact as to the cause and nature of the injury, he
  may file said petition within a reasonable time. In case of the
  death of the employee, there shall be allowed for filing said
  petition one year after such death. No petition of any kind may
  be filed more than 10 years following an accident.*fn1
Section 8 of P.L. 1965, ch. 489, effective February 1, 1966, amended the last sentence to provide:
  No petition of any kind may be filed more than 10 years
  following the date of the latest payment made under this Act.
If the amended version should apply to the present case, Dobson's petition would not be barred.

The Commission based its decision on Reggep v. Lunder Shoe Products Co., Me., 241 A.2d 802 (1968), which dealt with an amendment to the statutory formula for the computation of permanent impairment awards. We held that the employee had a vested right to compensation in the amount provided by statute at the time of his injury, which amount, we said, could not be changed by subsequent legislation. 241 A.2d at 804. The principle of Reggep does not apply to the present case. Here, the change in the statute does not enlarge or diminish any substantial right of the employee; it has merely the effect of enlarging one of the time limitations on the filing of a claim. As this Court held in Norton v. Penobscot Frozen Food Lockers, Inc., Me., 295 A.2d 32 (1972), section 95 affects only the procedure for making a claim; it does not qualify the substantive right itself. Thus we determined in Norton that an employee's non-compliance with section 95 does not deprive the Commission of jurisdiction to entertain the claim; non-compliance is merely a defense, which may be waived.

Quinn defends the Commissioner's result by arguing that the legislature did not intend the amendment enacted by P.L. 1965, ch. 489 § 8, to apply "retroactively", citing Miller v. Fallon, 134 Me. 145, 183 A. 416 (1936), for the proposition that there is a presumption that legislation applies "prospectively" only. We have applied that principle most recently in Coates v. Maine Employment Security Comm'n, Me., 406 A.2d 94 (1979), where we held that the Employment Security Commission should have applied the disqualification provision of the unemployment compensation statute as it stood when the claimant left her job, not as it had been amended when she filed her claim. Quinn argues that because the amendment of section 95 and its legislative history are both silent on the question of "retroactive" effect, the amendment must be deemed "prospective" only.

Miller v. Fallon, supra, was an action for medical malpractice. The statute of limitations for such actions had been amended to shorten the limitation period from six years to two after the alleged malpractice had occurred but before the action was brought. The Court held that the change in the limitation period was to be treated as having only a "prospective" operation, "unless the legislative intent to the contrary is clearly expressed or necessarily implied from the language used". 134 Me. at 151, 183 A. at 417.

However, in the present case the effect of the amendment was to extend the period of limitation, not to shorten it, as in Miller. The constructional preference for prospective application does not require that an amendment extending a statute of limitations be deemed "retroactive" if it does not change the legal consequences of acts or events that occurred prior to the effective date and affects only the procedure for enforcement of claims arising from such acts or events as long as the claims have not yet been barred by the previous statute of limitations in force at the time the amended version became effective. The following definition of retroactivity appearing in the opinion of the Maryland Court of Appeals in State Comm'n on Human Relations v. Amecon Division of Litton Systems, Inc., 278 Md. 120, 123, 360 A.2d 1, 3-4 (1976), is applicable here:

    A retroactive statute is one which purports to determine the
  legal significance of acts or events that have occurred prior
  to the statute's effective date. See Greenblatt, Judicial
  Limitations on Retroactive Civil Litigation, 51 Nw.U.L.Rev.
  540, 544 (1956). Thus a statute, though applied only in legal
  proceedings subsequent to its effective date and in that sense,
  at least, prospective, is, when applied so as to determine the
  legal significance of acts or events that occurred prior to its
  effective date, applied retroactively. . . .*fn2
Legislation which lengthens the limitation period on existing viable claims does not have the effect of changing the legal significance of prior events or acts. It does not revive an extinguished right or deprive anyone of vested rights. No one has a vested right in the running of a statute of limitations until the prescribed time has completely run and barred the action. Davis & McMillan v. Industrial Accident Comm'n, 198 Cal. 631, 246 P. 1046 (1926); Panzino v. Continental Can Co., 71 N.J. 298, 364 A.2d 1043 (1976); Nichols v. Wilbur, 256 Or. 418, 473 P.2d 1022 (1970). See Annot., 79 A.L.R.2d 1080 (1961 & Later Case Service 1979 & Supp. 1980). Cf. Willey v. Brown, Me., 390 A.2d 1039 (1978). The application of the amended version of section 95 to actions not already barred at the time it became effective is not "retroactive" application in any sense that would require us to presume that such application was not intended by the legislature. See Sutherland v. Pepsi-Cola Bottling Co., Me., 402 A.2d 50, 52 (1979).

It is necessary to distinguish Hubert v. National Casualty Co., 154 Me. 94, 98, 144 A.2d 119, 121 (1958), in which the limitation period was not directly prescribed by statute but by a provision of accident and sickness insurance policy requiring actions on the policy to be brought within two years from the expiration of the time within which proof of loss was required by the policy. Loss occurred in 1952 while the policy was in effect. Hubert brought an action on the policy in 1956. When the policy was issued and during all the time it was in effect, the insurance law required that every insurance policy of the sort in question contain a standard provision requiring, among other things, that actions on the policy be brought "within two years from the expiration of the time within which proof of loss is required by the policy." In 1953, after the policy in question had expired by its own terms, the insurance law was amended to extend to three years the period to be prescribed in the standard provision. The parties stipulated that the last date Hubert could have filed proof of claim was more than three years and 21 days from the date of the actual commencement of his action. It is not clear from the opinion why the action was not brought too late regardless of whether the application period was two years or three. However, the Court took the occasion, citing Miller v. Fallon, supra, to state that the 1953 amendment of the insurance law should be given only a "prospective" operation. Apart from the fact that the statement of the Court in Hubert appears to have been unnecessary to the decision, the case is clearly distinguishable as involving a provision contained in a contract which could not have been regarded in any event as modified by a statute enacted after the contract had ceased to be effective by its own terms. The later change in the law could affect that provision of the insurance policy, if at all, the Court said, only by retroactive application.

In the present case, there being no evidence of a contrary legislative intent, we hold that amended version of ...

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