December 2001 - Law Court

Ed. Note: The first two cases below were decided just as COMP went to press and will be discussed fully in the next issue of COMP. Bernier v. Data General Corp. is also discussed in the Highlight Article, page 1 of this issue.

Dubois v. Madison Paper Co.
2002 ME 1 01/04/2002
CALKINS

Hearing officer had authority to reject opinion of independent medical examiner which was contrary to the findings.

Bernier v. Data General Corporation
2002 ME 2 01/04/2002
CAULKINS

Inflation adjustment enacted in 2001 applies to cases pending on its effective date. See Highlight Article, page 1.

Section 201(5) on subsequent nonwork injuries applies to all dates of injury on or after 1/1/93.

Hearing officer can use whole body impairment to determine the relative contributions of two injuries to incapacity.

Roe v. Yarmouth Lumber, Inc.
2001 ME 159 11/20/2001
CLIFFORD

Section 214(1)(A), refusal of bona fide job offer, is applicable where employer is paying without prejudice.

The Court looks at the application of §214(1)(A), unreasonable refusal of a job offer, when benefits are being paid without prejudice.

The employee, a truck driver, suffered a back injury in 1997 for which the employer voluntarily paid benefits without prejudice. His doctors released him back to work but recommended that he not do long-distance truck driving. The employer offered to reinstate him to a short-haul driving job with no unloading by hand. The employee refused the offer, and the employer terminated benefits. The employee worked sporadically thereafter until he obtained steady part-time work in 2000. He then filed petitions for award in regards to his 1997 injury and a 1994 injury.

The hearing officer ruled that the employee was not entitled to any benefits for the period during which he refused the employer's job offer. The officer found the job to be within the employee's medical restrictions; thus his refusal constituted refusal of a bona fide job offer. Pursuant to §214(1)(A), an employer who unjustifiably refuses a bona fide job offer "is no longer entitled" to benefits during the period of refusal.

The Court upheld on the employee's appeal. The employee argued that §214(1)(A) does not apply where benefits are being paid without prejudice, but the Court disagreed.

Justice Clifford noted that "payment without prejudice" is governed by §205, which allows employers to pay benefits without accepting liability for the injury. The employer may also unilaterally discontinue such benefits, without petition, merely by providing 21-day notice to the Board and employee.

The employee relied on Board Rule Ch. 1(1)(2), which states that the provisions of §214 do not apply to payments made without prejudice. Justice Clifford responded that the Board "did not construe" this rule as precluding the application of §214(1)(A) to the facts of this case, under its decision in Bourassa v. Town of Farmington (WCB 98-01, COMP Vol. 14, No.2). He stated that an employer's termination of benefits under §214(1)(A) for refusal of a bona fide offer is not contingent on the type of payment being made, and in fact does not even require that payments are being made. Rather, §214(1)(A) states that employees who unjustifiably refuse a job offer are "no longer entitled to benefits."

Meanwhile, the Court has recently held that employees may be entitled to benefits even before they actually receive them, Holt v. SAD No. 6 (767 A.2d 295, 2001, COMP Vol. 17, No. 6). Hence, employers may invoke §214(1)(A) to deny future benefits where no benefits are yet being paid. As Justice Clifford explained, to rule otherwise would incongruously preclude employers paying without prejudice from using §214(1)(A) while allowing employers not paying at all to use it.

The Court thus affirmed that an employer paying without prejudice may terminate benefits pursuant to §214(1)(A) when an employee unjustifiably refuses a bona fide job offer.

Chmielewski v. J.C Management
2001 ME 160 11/28/2001
DANA

Hearing officer's statement that employee was "totally incapacitated" in award of "100% partial" benefits did not constitute a clerical error and thus could not be vacated as such.

The Court addresses the little-used provision allowing decisions to be amended because of a "clerical error, oversight or omission," 39-A MRSA §318.

The employer voluntarily accepted the employer's 1992 injury and began paying short-term total benefits. In 1996, the hearing officer denied the employer's petition for review. The officer found the employee remained "totally incapacitated" due to the effects of the work injury and the employee's intrinsic limitations. The officer granted "100% partial" benefits.

Subsequently, the employee filed a petition for an inflation adjustment pursuant to 39 MRSA §54-B, which governs total incapacity benefits. The employee relied on the hearing officer's finding in the 1996 decree that the employee was "totally incapacitated." He argued that the hearing officer had intended to grant total benefits pursuant to §54-B, not 100% partial benefits pursuant to §55-B, and that this reference to "100% partial" was a clerical error that the present hearing officer could correct. The hearing officer agreed. The officer ruled that the 1996 decree was not res judicata on the extent of incapacity because the HO made "inconsistent and ambiguous" findings on that issue. He agreed with the employee that the officer intended to award total benefits pursuant to §54-B. He granted those benefits along with the inflation adjustment.

On the employer's appeal, the Law Court vacated the decision. Justice Dana stated that the Court has found the phrase "total incapacity" to be ambiguous as it can refer to either total physical incapacity or 100% partial incapacity (some physical incapacity combined with unsuccessful work search). However, the original hearing officer in this case clearly awarded "100% partial benefits," hence there was no error in the opinion to correct. He added that in any case, the employee's allegation that the hearing officer's ruling contradicted his findings constituted legal, not clerical, error. The proper recourse then was to file a timely appeal, which the employee did not then do.

Dudley v. Burns & Roe Construction Group
2001 ME 161 11/07/2001
SAUFLEY

Maximum benefit level is a floating cap, and increase is to be applied even though benefits are already being received.

The Court discusses how increases in the maximum statewide compensation rate affect employees already receiving the maximum amount.

The employee had been receiving total benefits since 1997. Because his compensation rate exceeded the maximum statewide rate, he received the maximum average weekly wage of $441 per week. Section 212 of Title 39-A provides that total incapacity benefits are to be capped at the maximum benefit level set in §211, which is the higher of $441 or 90% of the statewide AWW. Effective July 2001, the maximum statewide AWW was increased to $458.83. The employee then petitioned to be awarded this new maximum. The hearing officer granted him the new rate as of

7/1/2001, and a ten cent per week increase as of 7/1/1999, corresponding to the increase in the maximum rates that went into effect on those dates.

The Court affirmed on the employer's appeal. The employer argued that the maximum benefits level cannot be increased once the employee's compensation rate has been established, so that §211 benefit increases can only apply to newly-awarded benefits. Justice Saufley pointed out that §212 does not state that the applicable maximum benefit rate is the rate "at the time the benefit is established." Instead, it is a "floating" maximum benefit cap. High-earning employees are entitled to the lower of the floating benefit cap or 80% of the employee's after-tax AWW. The Court thus upheld the application of the increased maximum benefit level to the employee's benefits.

Hogan v. Great Northern Paper, Inc.
2001 ME 162 11/28/2001
ALEXANDER

The fact that the employee's pension benefits would be reduced if he earned more than $100 per week did not render him unavailable for work in regards to determining his level of incapacity.

Court will not categorically refuse to consider impact of collateral financial consequences on employee's availability for work, but would do so only in "extreme" cases.

The Court examines the interesting issue of how pension benefit requirements affect an employee's availability for work and accompanying level of incapacity benefits.

In 1974, the employee received closed-end total benefits for a right arm injury at Great Northern Paper. He subsequently worked for Canadian Pacific Railroad from 1978 to 1999. In 1997, he began monthly treatments for right extremity symptoms, as well as counseling for related pain and stress management.

After leaving Canadian Pacific in 1999, the employee began receiving disability pension benefits of $1,925.00 per month. He also filed for restoration of benefits under the Act. The hearing officer found that the employee had a full-time light to moderate work capacity, and because he did not perform a good-faith work search he was not entitled to 100% partial benefits. He concluded that the employee had the ability to earn $210 per week. However, the hearing officer also found that during the period in which the employee was receiving his pension benefits he was not available to earn more than $100 per week, because then his pension benefits would be discontinued. He thus granted a restoration of benefits.

On Great Northern's appeal, the Court vacated the decision. Justice Alexander noted that the issue here was similar to that in Longtin v. City of Lewiston (710 A.2d 901, Me.1998, COMP Vol. 14, No 3). In Longtin, if the employee earned more than $10,000 for five years postinjury, he would not be entitled to the maximum retirement benefits from his employer. The employee refused a postinjury job offer because of the negative financial consequences on his pension. Both the hearing officer and Court in Longtin ruled that the employee had refused available work; thus he was not entitled to 100% benefits.

The hearing officer here attempted to distinguish Longtin from this case on two grounds: (1) The financial consequences to the employee were greater here than in Longtin; and (2) The employee had no specific job offer here, unlike the employee in Longtin. The Court found these arguments unpersuasive. Justice Alexander stated that in partial benefits cases the hearing officer's primary focus is on determining the employee's ability to earn by considering his physical capacity and the availability of suitable work. If an employee is capable of work and a suitable job is available, the employee is required to accept it under the mitigation principle, under which employees are to mitigate the effects of their work injuries and thus reduce the employer's liability.

Justice Alexander said that the Court might consider the effect of collateral financial consequences on an employee's availability for work in "some extreme" cases. He did not find such a case here, where the consequences were merely a reduction in the employee's pension benefits should he earn more than $100 per week. He remanded the case for the hearing officer to determine the extent of incapacity based on finding that the employee was available for work at all times.