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Spear v. Town of Wells Court remanded for the officer to clarify whether or not he was applying §201(4) on preexisting conditions or §201(5) on subsequent non-work injuries where employee had multiple work and non-work injuries. The Court vacated the hearing officer's ruling on incapacity regarding a multiple injury case because the officer's findings were "internally inconsistent" and unclear about whether the officer was using §201(5) on subsequent non-work injuries or §201(4) on preexisting conditions. The employee, a police officer for the Town of Wells from 1991 to 2004, petitioned for award alleging five back injuries and three shoulder injuries between 1992 and 2001. He had also suffered two back injuries with previous employers. He had missed a year of work following back surgery in 2003, though he did not file claims for this injury. He tried to return to work but had to stop due to restrictions. The hearing officer awarded partial incapacity benefits due to the effects of the 1997 shoulder injury, combined with three other conditions, including depression. He also found that the 1992 back injury was barred by the statute of limitations and the other back injuries had either resolved or were not separate injuries. On the employer's request for further findings, the hearing officer also found the claims for the 1992, 1995 and 2001 dates of injury barred by the statute of limitations. Thus, he found that 80% of the employee's current incapacity was due to non-work-related back problems subsequent to the 1997 injury, and pursuant to §201(5), he reduced incapacity benefits by that percentage. This resulted in benefits of $18.73 per week, based on a full-time $11 per hour earning capacity. Meanwhile, he denied the employee's request for further findings. On appeal, the employee argued that the hearing officer erred in treating his back problem as a subsequent non-work injury under §201(5); rather, it should have been treated as a preexisting condition under 201(4) which was aggravated by work and combined with his work-related shoulder injury to create incapacity. The Court reviewed the officer's findings as well as the employee's proposed findings. It noted that when a party requests and then submits additional findings, the Court will "review the original findings and any additional findings made in response to a motion for findings to determine if they are sufficient, as a matter of law, to support the result and if they are supported by evidence in the record." The Court found inconsistencies in the officer's opinion that resulted in a lack of clarity on whether or not the employee had a preexisting back condition pursuant to §201(4). For example, while the decree contained medical testimony that the employee's back condition was not work-related, it did not address whether this condition preexisted and combined with the 1997 work-related shoulder injury, which might have been compensable under §201(4). Meanwhile, the hearing officer at other points admitted that the employee had a preexisting back condition caused by prior work injuries that contributed to his current incapacity. The Court remanded for the officer to clarify whether or not he intended to classify the back condition as a preexisting problem under §201(4) and, if so, whether it aggravated, accelerated or combined with the shoulder injury to produce compensable incapacity. The employer argued that evidence in the record of a non-work-related back flare-up in 2002 that led to 2003 surgery supported the hearing officer's conclusion. The Court rejected this since the officer did not make any specific findings regarding a non-work back injury but only stated that the employee had "continued back pain" that led to surgery. The Court also agreed with the employee that it was not clear from the decision whether the hearing officer had taken into account the employee's depression, which resulted from his shoulder injury, when determining earning capacity. The officer had relied on a labor market survey because the employee had not done a good-faith work search. The town argued that an independent medical examiner and the town's labor market witness noted the depression but imposed no restrictions because of it. The Court reiterated, however, that it could only consider the officer's specific findings and could not rely upon evidence in the record. The Court remanded for the officer to factor the employee's depression into his post-injury earning capacity. Trottier v. Thomas Messer Builders In multi-injury, multi-insurer case, the insurer on the first injury pays based on the AWW in effect at that time and the second insurer makes up the difference so that the employee obtains full benefits. The Court addresses apportionment when the employee's current earnings exceed his average weekly wage at the time of the first injury. In multiple injury cases, benefits are based solely on "the average weekly wage that best reflects the employee's uninjured work capacity." The employee injured his back while working for Thomas Messer Builders in 1991, and then aggravated the injury outside of work while employed by Brady Construction in 2001. On an earlier petition for review, he and Messer entered into a consent decree in 2001 which stated that his incapacity in 2001 was causally related to the 1991 injury at Messer's. Messer paid seven weeks of total and partial incapacity benefits under the decree. In February 2002, the employee injured his knee at work, underwent surgery, and returned to work in July. He soon reinjured his back and left work again. He returned to Brady's in January 2003 in a position not requiring heavy labor, but at which he earned a higher wage than he did for Messer. Brady laid him off for business reasons in November and he collected unemployment benefits until he began a full-time job with a lumber company in January 2004. The employee then petitioned for review of incapacity for the 1991 and 2002 back injuries and the 2002 knee injury. Brady petitioned for apportionment against Messer. The hearing officer awarded 100% partial incapacity benefits from November 2003 until January 2004, with an offset for unemployment benefits, and ongoing partial incapacity benefits. On further findings and an amended decree, the officer found Messer 80% responsible for incapacity due to the 1991 back injury and Brady 20% responsible due to the 2002 knee injury. He added that pursuant to the consent decree, any incapacity related to the non-work 2001 incident was related to the 1991 back injury. He also found that the effects of the 2002 back injury had resolved. The officer based the amount of ongoing partial benefits on the 2002 average weekly wage. Regarding the 100% partial benefits, he found that Brady must pay benefits based on the 2002 AWW, less unemployment benefits, but Messer must reimburse Brady based on its 1991 AWW. Messer appealed this ruling, arguing that it is not required to reimburse Brady for any ongoing partial benefits because the employee's current earnings exceed his AWW at Messer in 1991. The Court first noted that the law in effect at the time of a prior injury, here 1991, applies to ongoing incapacity related to that injury. In 1991, the partial incapacity statute required weekly benefits of two-thirds the difference between the pre-injury AWW and post-injury earning capacity. In cases involving multiple injuries, however, compensation is based on the single AWW "that best reflects the employee's uninjured work capacity." The most recent insurer pays all benefits and is then subrogated to amounts due the employee from other insurers and employers. The employee's rights regarding an earlier employer or insurer are based on the AWW at the time of the prior injury. This is because the insurer does not have to accept the risk of future injury and payments based on a higher AWW. Considering these principles, the hearing officer erred by not basing the amount which Messer must reimburse Brady on the AWW and statute in effect in 1991, the time of the earlier injury at Messer. The Court followed its ruling in Johnson v. S.D. Warren (432 A.2d 431, Me. 1981), where the employee suffered injuries under one insurer in 1975 and another in 1978. The commissioner apportioned equally, with the first insurer paying benefits based on the 1975 AWW and the second insurer based on the 1977 AWW. The Court vacated, holding that the employee was entitled to the full benefit based on the 1977 AWW, with the first insurer paying based on the 1975 AWW and the second insurer making up the difference so that the employee would have full benefits. Brady argued that Johnson was not applicable because it involved an equal apportionment, and it would be inequitable to require Brady to pay the entire benefit when the first injury with Messer was 80% responsible for the employee's incapacity. The Court agreed that in some cases, the latest insurer will be required to pay more than its proportionate share because the reimbursement from a previous employer is based on a lower AWW. This is acceptable, however, because apportionment is based on subrogation by the insurer to the employee's rights against other insurers. Thus, an insurer has no right to reimbursement from another insurer unless the employee has that right. The purpose is to provide speedy payment of benefits while giving the recent insurer the opportunity to recover some of the costs. The first insurer is protected from the vagaries of a changing weekly wage while the latest insurer benefits by not being 100% liable for compensation. Here, then, Brady's rights against Messer are limited to the employee's against Messer, which are based on the law and AWW in effect in 1991. Applying 39 MRSA 55-B in effect in 1991, Messer does not owe any benefits because the employee's current earning capacity exceeded the AWW. Thus, Brady is responsible for payment of the incapacity benefits. Messer also argued that the offset for unemployment benefits should apply to each date of injury, and since the unemployment benefits would exceed the rate of compensation for the 1991 injury, Messer would not have to pay any of the 100% partial benefits. The Court agreed that the hearing officer erred in not applying the offset, as the 1991 law stated that compensation is to be reduced by the amount of unemployment benefits. The Court thus remanded for the hearing officer to apply the offset to the 100% partial benefit based on the 2002 average weekly wage. Lastly, Messer argued that the 2003 consent decree, which stated that Messer was responsible for incapacity in 2001 after a non-work injury should not preclude Messer from disclaiming responsibility for non-work-related causes of incapacity. The Court found the hearing officer's adherence to the consent decree in holding Messer responsible for incapacity after the 2001 non-work-related injury was a reasonable interpretation and without legal error. Saucier v. Nichols Portland Hearing officer erred in not applying retirement presumption to retired employee claiming permanent and total benefits for loss of industrial use of her hands, as retirement presumption supersedes all other standards of disability in the Act. Employee also failed to prove industrial loss of use of hands. After working for the employer doing manual and visual inspection of small parts for nine years, the employee, now 79 years old, retired in 1997. In 2000, she petitioned for benefits for a bilateral carpal tunnel injury with a date of injury in 1997. The hearing officer awarded her protection of the Act but no benefits, finding that she had not rebutted the retirement presumption of §223. This section presumes that a retired employee receiving disability retirement or pension benefits is not suffering an injury-related loss of earning capacity. In fact, the employee had not looked for work since retirement. When her carpal tunnel symptoms worsened, however, she petitioned for restoration in 2005. The employer then offered her a job, approved by her doctor, that did not require use of her hands. She did not respond to the offer. Instead, she claimed that she had sustained permanent and total loss of "industrial use of both hands," as stated in §212(2)(G). Based on this claim and finding her condition had worsened, the hearing officer awarded 800 weeks of permanent total incapacity. On appeal, the employer argued that the award was in error, as the claimed loss of industrial use of the employee's hands occurred several years after retirement and the employee had not rebutted the §223 retirement presumption. The Court agreed and remanded for judgment for the employer. The Court noted that §212(2) is intended to cover catastrophic losses, including the "permanent and total loss of industrial use of...both hands." This section was added in 1992, based on Michigan's statute. The Michigan Supreme Court has noted that the industrial loss category of benefits is "distinctive and atypical," because unlike other permanent, total benefits, it takes into account the employee's earning capacity. Redfern v. Sparks-Withington Co. (268 NW.2d 28, Mich.1978). Meanwhile, the retirement presumption in §223 assumes that employees receiving non-disability pension or retirement benefits have no work-related loss of earning capacity. To rebut this presumption and remain eligible for compensation, the employee must prove a total physical inability to obtain suitable work, regardless of work availability. Most pertinent to this case, the Act states, "This standard of disability supersedes other applicable standards used to determine disability under this Act." The hearing officer here decided that the retirement presumption was inapplicable, however, once he determined that §212(2)(G) applied. He stated that once an employee meets the standard for "industrial loss" benefits, a presumption of entitlement to 800 weeks of benefits applies. The employee's earning capacity is not the only determinant, he added, as §212 compensates for "human factors" as well as wage loss. On the employer's appeal, the Court held that the hearing officer erred because the retirement presumption explicitly "supersedes" other disability standards under the Act, including the industrial loss provision of §212(2)(G). Therefore, the employee must first rebut the retirement presumption and prove a work-related earning incapacity before being eligible for total and permanent benefits. Regarding the hearing officer's observation that the §212(2)(G) benefits are intended to compensate for "human factors" besides lost earning capacity, the Court stressed that an "industrial" loss plainly refers to loss of ability in the workplace. The Court added that even if the employee established a total inability to perform work to rebut the retirement presumption, she still failed to meet the standard for industrial loss of both hands. She had not used her hands in the workplace for years, for reasons not related to injury, and she had no intention of using her hands in the workplace in the future even if able. Therefore, the Court could not justify awarding 800 weeks of total incapacity benefits for an employee who had intentionally stopped working with her hands several years before the alleged loss of use of her hands. Meanwhile, there was evidence of suitable work she could perform. Thus, on remand judgment was to be entered for the employer. Higgins v. H.P. Hood, Inc. Court upholds permanent impairment assessment based on independent medical examination report, affirming that numerous errors in report were insubstantial. Following a repetitive stress arm injury, the employee petitioned for a permanent impairment award and medical benefits, including acupuncture treatment. The hearing officer awarded a 3% permanent impairment award and denied reimbursement for the acupuncture based mainly on an independent medical examination (IME). On appeal, the employee contended that the IME report was so riddled with errors that it was unreliable evidence. The Court upheld the decision finding that the errors were insubstantial and there was competent evidence to support the decision. The permanent impairment assessment of the employee's repetitive stress injury was based on three reports: One from the employee's treating physician, an occupational medicine specialist, and two §312 IME reports, one evaluating the physical and one the psychological component of the employee's pain. In the latter IME report, the physician awarded no impairment for the psychological condition, finding that though the work injury had exacerbated this preexisting condition, this was not permanent as the employee could improve. Dr. Ross, the physician who evaluated the physical aspect, found a 3% impairment, diagnosing the employee with complex regional pain syndrome (CRPS), somatoform pain disorder with symptom magnification, and a history of depression and fibromyalgia. He also found that she did not have carpal tunnel syndrome and that acupuncture treatments were not medically necessary as the employee reported no improvement from them. The employee argued that Dr. Ross's report contained misinformation and was contradicted by a deposition and a report of her treating physician, Dr. Phillips, which were admitted post-hearing. Dr. Phillips, an occupational medicine specialist, found that the employee had a 20% impairment from her CRPS because of decreased range of motion, alterations in daily living activities, sensory deficits, and pain. On appeal, the Court upheld the board's decision pursuant to §318, which notes that a hearing officer's decision, "in the absence of fraud, on all questions of fact is final." The Court reiterated that employees or employers can choose from a list of 50 Board-approved medical practitioners to have an IME performed where there is a disputed medical issue. The hearing officer must adopt the examiner's findings, absent "clear and convincing" evidence to the contrary, as a way to reduce doctor-shopping and litigation. The employee conceded that as Dr. Phillips' report was not available at the time of Dr. Ross's IME, it cannot serve as contrary evidence. The employee cited nine errors in Dr. Ross's IME, however, contending that the errors rendered the report something less than competent evidence. These errors included: incorrect names, such as Dr. Mevin instead of Dr. Nevins, and Susan rather than Tina Higgins; the employer being listed as Columbia Insurance rather than H.P. Hood; the treating physician being referred to as Jeff Young when that is the name of her attorney; reference to a bone scan she never underwent; and listing the wrong doctor as having done a certain procedure. The employee contended that these errors, as well as the large disparity between Dr. Ross's and Dr. Phillips' PI ratings (3% versus 20%), raises the question whether the report refers to her or to a composite of two employees. She added that the hearing officer's failure to address her request for further findings on this issue supports the implication that the report does not pertain to her. The Court upheld the Board's reliance on Dr. Ross's report as competent evidence for several reasons. First, Justice Clifford stated that most of the errors, though unfortunate, were "clerical" and "minor," with no "substantive impact" on the report's conclusion. Meanwhile, the employee's credibility had been questioned by the hearing officer, who found that she had exaggerated her symptoms, and had running arguments with providers and had discharged several of them. Justice Clifford stated that this lack of credibility gave the hearing officer the right to ignore all or part of the employee's testimony. Furthermore, Justice Clifford added, the hearing officer had specifically found, based on sufficient evidence, that Dr. Ross's IME report did refer to the employee. The Court affirmed that this report was "substantially accurate" regarding the employee's medical history, including identifying her diagnosis as CRPS. Finally, the employee had failed to depose Dr. Ross to clear up any alleged inaccuracies. Meanwhile, she had waited a long time after the hearing to obtain her treating physician's opinion on permanent impairment. Monaghan v. Jordan's Meats Court remands hearing officer's decision finding work search inadequate to consider and explicate in greater detail, using a variety of factors in its analysis. Court rejects bright line test of adequacy based solely on number of employer inquiries. For the first time, the Court delineates the specificity of detail required by hearing officers in a work search analysis. The employee, who had a GED, worked for the employer as a packer and supervisor from 1997 until the plant shut down in 2005. She began as a packer but became a line supervisor. After injuring both knees at work in 2003, she continued to work, with restrictions, until the plant closed. She had restrictions on standing, climbing, lifting, squatting and kneeling. When the plant closed, she petitioned to fix medical expenses and for 100% partial incapacity benefits. She presented evidence of a work search in an attempt to prove that, because of her work-related restrictions, work was unavailable to her in her local community. Her evidence included contacting 147 employers as well as taking typing and computer classes to improve her skills. The employer submitted counter evidence of 50 advertised jobs in the local market within the employee's restrictions. The hearing officer determined that the employee continued to have a partial physical incapacity but that her work search did not prove that work locally was unavailable to her because of such incapacity. The employee was awarded partial incapacity benefits based on her 2003 wage with a $300.00 per week deduction for her presumed earning capacity and an offset for unemployment earnings. The hearing officer based her decision of an inadequate work search on the fact that though the employee had taken typing and computer classes and was looking for work, she visited many places that were not hiring. Thus, the hearing officer decreed, "the work search was not targeted to available and appropriate work" and did not satisfy the employee's burden of proof. After her request for further findings of fact was denied, the employee petitioned the Law Court for review. She asked the Court to determine whether the quantity of her work search-contacting 147 employers and upgrading her skills-should constitute an adequate work search as a matter of law. She also requested that the Court adopt a bright line rule that 25 employer inquiries would automatically constitute a sufficient work search. In denying the employee's request, the Court reviewed the work search rule. Chief Justice Saufley noted that the level of incapacity is based on the interplay of two factors: the physical incapacity and the availability of work within the employee's restrictions. Under §212, total incapacity benefits are available to partially incapacitated employees who prove work is unavailable in the local community, or that they cannot perform full-time work in the statewide labor market, whether or not it is available. Under §213, 100% partial benefits are available if the employee proves that local work is unavailable because of the employee's injury restrictions. The work search rule is "a judicially created doctrine designed to allocate the order and presentation of proof" regarding work availability. The Court noted that unavailability of work can be proven by other methods besides a work search, including labor market surveys, but that a work search is usually "the most straightforward and persuasive evidence." An adequate work search includes a "reasonable exploration" of the local labor market which discloses a "pattern" from which it can be inferred that work for someone with the employee's limitations does not exist, Ibbitson v. Sheridan Corp. (442 A.2d 1005, Me.1980). In reviewing a work search, the Court addresses the employee's search as a factual issue, while it looks at the hearing officer's conclusions as a mixed question of fact and law, with deference to the hearing officer's legal conclusions. The Court rejected the employee's argument that a certain number of job inquiries constitutes an adequate work search as a matter of law. As Justice Saufley stated, the number of inquiries is just one of multiple factors that hearing officers must look to in evaluating a work search. Hearing officers are not to focus on "a single aspect" but look through a "broad lens" at the evidence, evaluating and weighing numerous factors. The Court listed some of the many varied factors to consider, including: number of inquiries; whether the jobs were advertised or not; whether the employee over-emphasized their restrictions when applying; and the size of the local job market. The hearing officer had applied several factors, including finding that the employee's search was in good faith and she had taken classes to improve her situation. On the other hand, the officer also found that the employee's search was broad rather than targeted to employers with available, appropriate work. The Court deemed the hearing officer's opinion insufficient because it failed to consider enough factors in detail. For example, the opinion did not evaluate other ways the employee could have searched for work, such as responding to advertisements, nor did it indicate on what other factors the officer may have relied, such as the employee's age and restrictions, the employer's evidence of 50 available jobs appropriate for the employee, and how the employee presented her restrictions to potential employers. The Court vacated and remanded the decision for consideration of such factors, noting that this was the first time it had specified the type of detail required of hearing officers when determining the adequacy of a work search. Nichols v. S.D. Warren/SAPPI Disability insurance, which is part of a packaged life insurance policy, constitutes a disability insurance policy for the purpose of coordination of benefits under §221. The Court addressed the issue of coordination of benefits in relationship to a packaged insurance policy that included both life insurance and disability benefits. After a work-related spinal injury in 1999, the employee returned to work with varying rates of incapacity benefits. She stopped working in February 2002 and the employer has voluntarily paid total incapacity benefits since then. In 2000, the employer had instituted a group policy "welfare plan," which provided a variety of coverage, including life insurance and death benefits. It also offered permanent and total disability benefits for employees disabled before age 60, whose disease or injury rendered them permanently unable to work "at any reasonable job" for any employer. This benefit was equal to the amount of life insurance in effect at the time of disability, which was $58,000.00 for this employee. In February 2003, the employee, who was 53, received a lump-sum payment of $58,000.00 under this plan. Two years later, the employer, who had continued to pay total incapacity benefits, filed for an offset of the $58,000.00 under §221, the coordination of benefits provision of the Act. The hearing officer found that the offset applied and found the employer "entitled to a holiday against future payments of incapacity benefits until those future benefits to which the employee may be entitled exceed $58,000." The officer reaffirmed its decision on the employee's request for additional findings. The employee appealed, arguing that the plan under which she received the lump-sum payment was not a disability plan, to which coordination would apply, but a life insurance policy aimed primarily at death rather than wage continuation benefits. Justice Levy observed that hearing officer decisions are entitled to great deference and to be upheld unless the statute "plainly compels a different result," Jordan v. Sears, Roebuck & Co. (651 A.2d 358, Me.1994). However, when there are issues on which the officers have offered varying interpretations and which the board has not yet addressed on review, as here, the Court looks to the plain language and legislative history of the statute in question. Section 221(1)(B) of Title 39-A authorizes an offset from workers' compensation for payments under an employer-provided "disability insurance policy." Weekly benefits are reduced by the after-tax amount of such payments received, §221(3)(A)(2). The Court found that the phrase "disability insurance policy" is not defined in either Maine workers' comp or general insurance law. Thus, the Court looked to Black's Law Dictionary 816 (8th ed. 2004), which defines it as coverage "to protect a person from a loss of income during a period of incapacity for work." This view is echoed in insurance treatises, which refer to it as insurance for a person unable to earn their customary level of earnings. In fact, it is sometimes referred to as "disability income insurance," according to the International Risk Management Institute. Meanwhile, the inclusion of coverage in one definition does not exclude it from also fitting under a different definition. For example, the Maine Insurance Code defines life insurance as insurance on life but also including benefits for "the insured's disability." Here, the employee received a lump-sum payment for her disability, but the payment was also intended to cover her lost ability to work; thus, the Court agreed with the hearing officer that she had received a disability insurance payment. The Court then addressed whether the payment was part of a "disability insurance policy," given that it was part of a group insurance policy covering both life and disability insurance. Justice Levy noted that the trend towards such packaged policies makes classifying the entire policy problematic. However, the Court found that the officer's reasoning comported with common sense. That is, a disability insurance component of a multiple-policy insurance package constitutes a disability insurance policy just as it would if standing alone. Foley v. Verizon Court affirms hearing officer's calculation of reduction of benefits by treating lump-sum pension as if it had been awarded in weekly installments. See Highlight Article, page 1. Section 221(3)(D), stating that no reduction of benefits be taken until there is a "determination" of the amount of benefits, does not require a formal determination and may be applied when the employer is paying voluntary benefits. In a case of first impression, the Court upheld the hearing officer's decision to calculate the reduction of benefits for a lump-sum pension as if the pension had been awarded in weekly installments. It also affirmed that there was no violation of the 14-day rule and that the 21-day notice rule does not apply in coordination of benefits cases. Following a 2003 injury, the employer paid the employee total incapacity benefits pursuant to a memorandum of payment, indicating that the payments were voluntary pending investigation. When the employee subsequently retired in 2004, he received a severance and pension package from the employer that included a lump-sum pension of $335,610.12 and a monthly social security supplement of $500. At that time, the employer ceased paying weekly benefits. The employee telephoned the claims adjustor inquiring about the cessation of weekly benefits and was told he could not receive both the pension and workers' compensation benefits. The employee's attorney then sent the employer letters on August 5 and September 23, 2004 asserting that the employee remained entitled to weekly benefits. The employee petitioned for an award and order to pay on September 24, with the employer filing a notice of controversy on October 7. At a hearing, the parties stipulated that the employee's average weekly wage was $1228.16, his compensation rate $773.95, and his weekly earning capacity as of November 2005 $400.00. The hearing officer found that the unilateral reduction of benefits did not violate §221(3)(D) on discontinuation of benefits, and that there was no violation of the 14-day rule as the employee's first clear assertion of benefits was in the September 23, 2004 letter and the employer had responded to this with a NOC within 14 days. The biggest issue was the calculation of the reduction of benefits, as the coordination of benefits provision, §221(3)(A)(4), does not provide instructions on how to calculate the offset for one-time lump-sum payments. The employer proposed a "payment holiday," until the amount of compensation due the employer was more than the pension and social security benefits he was receiving. The employee recommended calculating the after-tax value of the lump-sum pension spread over 23.8 years, his projected life expectancy. The hearing officer rejected both calculations. Instead, the hearing officer began with the monthly amount the employee would have received if he had not accepted a lump sum. To this he applied the WC Board's weekly benefit tables. This resulted in a finding of benefits ranging from zero to $24.74 per week up to November 8, 2005, when he obtained an earning capacity of $400 per week, which resulted in the hypothetical monthly pension amount being greater than any compensation benefits, denying him entitlement to benefits. On appeal, the Court upheld all the officer's findings. Justice Levy noted that with the coordination of benefits section, 221(3)(A)(4), the Legislature intended to prevent employees who receive pension or retirement benefits from earning more income than if they had continued to work. To achieve this, weekly compensation benefits are reduced by the "after-tax amount of the pension or retirement payments" which an employee is receiving, pursuant to an employer-sponsored plan to which the employee did not directly contribute. The after-tax amount is calculated according to tables in sections 102(1) and 221(2) of the Act. As Justice Levy noted, however, the statute and tables are based on weekly benefits and do not provide instructions for converting lump sums, and the Board has no rules regarding this. This required the Court to discern the legislative intent behind the provision by looking to the legislative history and entire statute. A main purpose of coordination of benefits is to prevent double recovery by the employee, Jordan v. Sears, Roebuck & Co. (651 A.2d 358, Me. 1994). Here, the parties did not contest the hearing officer's conversion of the lump sum to a monthly, then weekly, amount. Rather, they disagreed on the monthly amount the employee would have received in place of the lump sum. The employee argued that there should have been only a one-time offset for the week the pension benefit was received or that it should have been divided according to his life expectancy. The employer argued that the employee should have received no compensation benefits until the lump-sum amount was depleted by the amount of weekly benefits the employee would have received absent the lump sum. The hearing officer rejected the employee's argument as illogical and inconsistent with the proscription on double recoveries, while the life expectancy formula ignored using the statutory tables, as mandated by the board. Meanwhile, the employer's argument also did not utilize the tables or follow the calculation of after-tax retirement payments. The Court, without further elaboration, upheld the hearing officer's calculation on four bases: (1) It was a common-sense and practical method and realized the statute's purpose; (2) It was not otherwise prohibited by statute or rule; (3) It used as many statutory requirements as possible given the lack of directives for lump sums; and (4) It was "better" than any of the parties' suggested alternatives. The Court next found no violation of the 14-day rule for an employer responding to an employee's notice of a claim for benefits. It found that the employee's telephone call was not an assertion but merely an inquiry about the status of his claim. Nor did the August 5, 2004 letter fulfill the notice requirement because it was "largely unreadable." While the letter of September 23, 2004 clearly asserted a claim, the employer responded by filing a notice of controversy on October 7, which was within 14 days of the employee's claim. Finally, the Court upheld the employer's unilateral suspension of benefits in May 2004. The employee noted that §221(3)(D) on coordination of benefits states that no reduction of benefits be taken until "there has been a determination" of benefits payable to the employee. She argued that the employer's voluntary payments did not constitute a "determination" of benefits. The Court responded that § 221 does not refer to a "formal" determination of benefits and it had, in fact, been determined that the employee receive total incapacity benefits, which he was. The Court also rejected the employee's argument that §205(9)(B)(1), requiring 21-day notice by the employer before suspension of benefits, applied in this case. Section 221(3) provides that in coordination of benefits cases the employer "is entitled to an immediate coordination," including reduction or suspension, of benefits. Thus, the §205(9)(B)(1) notice requirement does not apply in coordination of benefits cases. |
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