January/February 2002 - Law Court

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

Section 201(5) on combined effects injuries applies to all injuries regardless of their date.

Even though permanent impairment benefits no longer exist under Title 39-A, PI may still be used as a rough gauge of the employee's level of incapacity.

Section 224, addressing inflation in pre-1993 cases, is to be applied to proceedings pending on its effective date of 09/01/2001.

The Court discusses §201(5) on combined effects injuries and §224, effective since September 2001, regarding the inflation factor for certain pre-1993 injuries.

The employee suffered a left wrist injury at work in 1978 and reinjured it outside of work in 1980. The employer terminated her in 1984. The former Commission denied benefits in 1992 because she failed to show her reduced earnings were related to her work injury. In 1999 she reinjured her left wrist at another job, requiring surgery. After three months out of work, she returned with restrictions on lifting and repetitive work. She then filed a petition for restoration of benefits.

Based on an independent medical examination, the hearing officer awarded benefits for a 50% incapacity following the employee's return to work postsurgery. The hearing officer found a change in her circumstances since the 1992 denial of benefits - a worsening of her wrist symptoms and the wrist surgery. The HO agreed with the examiner that the employee's work injury was a more substantial factor in her ongoing work restrictions than her nonwork injury. The officer denied benefits for the three months postsurgery, however, finding the surgery itself was related solely to her nonwork wrist injury. On the employer's appeal, the Court remanded for a determination of the contributions of the work and nonwork injuries to the employee's incapacity.

The Court first upheld the hearing officer's finding of change of circumstances as based on competent medical evidence. It then found, however, that the hearing officer should have applied §201(5), Title 39-A, which states that nonwork injuries subsequent to work injuries are not compensable unless they are causally related to the work injury. Justice Calkins remanded for the officer to determine the portion of the employee's incapacity attributable to her nonwork injury and to reduce her benefits accordingly.

The Court found that §201(5) applies to all injuries regardless of their date, as it is not one of the enumerated sections to which Title 39-A applies only for injuries after its effective date of 01/01/1992. Justice Calkins rejected the employee's contention that "under this Act" in §201(5) refers only to Title 39-A, finding that it refers to workers' compensation benefits in general, regardless of the Act.

The Court next addressed how the hearing officer on remand should apportion the relative contribution of the employee's work and nonwork injuries. It held it permissible for the hearing officer to use the permanent impairment formula as used by the independent medical examiner, who found that the employee's work injury resulted in a 10% whole body impairment and her nonwork injury in a 5% impairment. As Justice Calkins stated, even though PI benefits no longer exist under Title 39-A, permanent impairment may still be used as a rough gauge of the employee's level of incapacity. Alternatively, if the hearing officer on remand decides it is impossible accurately to apportion liability, she may divide the responsibility evenly between the two injuries.

Finally, the Court addressed the application of the inflation factor to the employee's average weekly wage. It ruled that the case is governed by a new statute, codified as §224 of the Act, effective 09/01/2001 and applicable to certain pre-1993 injuries. Under §224, the preinjury AWW is to be adjusted to include inflation factors for each year from the date of injury to the date of calculation. Thereafter, the weekly benefit amount must bear the same relationship to the statewide AWW as it did at the time of injury. While §224 states that it is to be applied retroactively, the employer argued that it should not be applied to the present case because the employee's case was still pending when §224 became effective. Justice Calkins ruled that in determining whether to apply a new statute to pending proceedings the Court looks for a clear expression of retroactivity, which she found present in §224. She explained that an explicit reference to pending proceedings is not required. Additionally, the legislative history of §224 evidenced the intent to apply it broadly. Thus on remand the hearing officer was to apply the §224 AWW formula.

Ed. Note: COMP magazine reported on the Law Court's discussion of retroactivity in the Highlight Article in the November/December 2001.

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

An independent medical examiner's findings are to be upheld unless the hearing officer could reasonably be persuaded by contrary medical evidence that it was highly probable that the record did not support the examiner's findings.

The Court interprets §312(7), which states that the Board shall adopt an independent medical examiner's findings "unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings."

In 1980 the employee suffered severe injuries when his right arm was pulled into a machine, including a dislocated elbow, face laceration and lost teeth. He underwent two arm surgeries and was out of work for a year, then returned on light duty for two years before resuming his regular job.

In 1998 he was diagnosed with severe spinal stenosis and underwent related surgery in 1999 which incapacitated him for several months. The employee petitioned for benefits for this period of incapacity. He introduced the opinions of a neurologist and neurosurgeon, who both stated that the work injury had caused premature degenerative changes to the spine. At the employer's request, the Board appointed an independent medical examiner, who found that the employee's spinal condition and resulting neck problems were not related to his work injury. In awarding medical and incapacity benefits, the hearing officer relied on the opinions of the two specialists, disregarding the independent examiner's opinion for two reasons. First, she found that the examiner showed less familiarity with the mechanics of the employee's injuries than the specialists. Secondly, she found no evidence of the preexisting condition referenced in the examiner's report, as there were no medical records in evidence from before the 1980 work injury. On the employer's appeal, the Court affirmed.

The Court addressed whether the hearing officer had erred in finding "clear and convincing evidence to the contrary" of the independent medical examiner's findings. Justice Calkins stated that "clear and convincing evidence" is "a legal term of art with a well-established meaning." That meaning is found in case law interpreting a variety of other Maine statutes, including those concerning parental rights, constructive fraud, wills, and involuntary sterilization. While it has never been interpreted in the context of the Workers' Compensation Act, Justice Calkins held that the Legislature intended its well-established meaning in these cases to apply in a workers' compensation setting as well.

The established standard is whether or not the officer "could reasonably have been persuaded that the required factual finding was or was not proved to be highly probable," Taylor v. Commissioner of Mental Health & Mental Retardation (481 A.2d 139, Me.1984). In other words, could the hearing officer have been persuaded by the contrary medical evidence of the neurosurgeon and neurologist that it was highly probable that the record did not support the examiner's findings?

Justice Calkins ruled that the hearing officer appropriately addressed this issue in the hearing officer's required stated reasons for not accepting the examiner's findings. The hearing officer stated that (1) she found the two specialists' findings more persuasive than the examiner's, (2) the examiner did not appreciate the severity of the work injury, and (3) the examiner erred in finding a preexisting condition where there was no evidence in the record to support this. Justice Calkins found these reasons sufficient, particularly the last one, to support a finding that it was highly probable that the IME's findings were not supported by the record.

Kotch v. American Protective
Services, Inc. et al.
2002 ME 19 02/06/2002
CALKINS

In determining if employees have met the 11.8% permanent impairment threshold for longer-term benefits, hearing officers may consider the cumulative effect of multiple injuries to the body as a whole. The injuries do not have to be causally related or to the same body part, as long as they combine under §201(4) and contribute to earning incapacity.

In this consolidation of two cases, the Court affirmed that in determining whole body permanent impairment hearing officers may in appropriate instances combine the effects of both work and nonwork injuries.

In the first case, the employee underwent surgeries for a 1994 work-related back injury and a 1981 nonwork-related knee injury. He received 25% partial benefits. The employer then petitioned to discontinue after 260 weeks of benefits. In response, the employee petitioned for determination of his whole body impairment, as the 260-week limit does not apply to employees whose whole body impairments exceed 11.8%.

The hearing officer ruled that the employee had a 20% whole body PI, based on a 10% whole body impairment from the work-related back injury combined with impairment from his preexisting knee injury.

In the second case, the hearing officer found that the employee's 1996 work-related back injury, combined with unrelated, preexisting, nonwork-related knee and thumb injuries, created a 17% whole body impairment.

On the employers's appeals, the Court affirmed both cases. The Court interpreted §201(4), which states that if a work injury "aggravates, accelerates or combines with a preexisting physical condition," the resulting disability is compensable "if contributed to by the employment in a significant manner." Justice Calkins noted that in these cases, the "aggravate" and "accelerate" terms did not apply, as there was no causal link between the work and nonwork injuries. The question then was whether the nonwork injuries "combine[d]" with the work injury under §201(4).

The employers argued that for work and nonwork injuries to be combined, they must be causally connected or at least occur to the same body part. The Court rejected these arguments. As Justice Calkins stated, the plain meaning of "combine" is to unite or join together. Thus no linkage by causation or body part is required.

The employers also argued that nonwork-related permanent impairment injuries are not compensable pursuant to §213(1), which states that benefits are to be paid for permanent impairment "resulting from the personal injury," which is in excess of the established PI. The Court, however, stated that it had rejected this argument in Churchill v. Central Aroostook Association for Retarded Citizens, Inc. (742 A.2d 475, 1999, COMP Vol._No._), where it held that a personal injury may include a preexisting condition that accelerates, aggravates or combines with the work injury in a significant manner, pursuant to §201(4). Following Churchill, the Court upheld the combining of the effects of work and nonwork injuries for the purpose of determining permanent impairment. The employers here tried to distinguish Churchill because the work and nonwork injuries there were both to the same body part, but as Justice Calkins noted, the Churchill Court did not make that distinction. Instead, it relied on the principle of "whole body impairment."

Under the whole body approach in former Title 39, the court could consider the cumulative effect of multiple impairments in determining permanent impairment benefits, as the whole body impairment may be greater or lesser than the sum of the injured parts. The Legislature embraced this approach in §213 of Title 39-A, which replaced PI benefits with incapacity benefits for permanently impaired employees. In determining if employees have met the 11.8% impairment threshold for extended benefits, hearing officers may consider the effects of multiple impairments as a whole. This allows more extended benefits for the most severely disabled employees, Justice Calkins concluded in affirming the award of longer-term benefits in these two cases.