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WCB App. Div. Expands Employers' Burden

The Workers' Compensation Board Appellate Division recently issued a decision giving the employer the burden of production of evidence on the employee's petition for award of compensation.

In Thurlow v. Rite Aid of Maine, Inc., Dec. No. 16-23, Thurlow injured her arms at work and, after missing a few months of work, returned to work, but only 18 hours per week, rather than her normal pre-injury 30-hour schedule. In 2006, after her doctor cleared her to work 30 hours per week with restrictions, Rite Aid suspended its voluntary payment of benefits, and in 2012 Thurlow filed a petition for award.

After hearing, ALJ Jerome denied any ongoing incapacity benefits based on Thurlow’s failure to prove any ongoing lost earning capacity, and Thurlow appealed. The Appellate Division reversed part of the decision, holding that, even on an employee's petition seeking incapacity benefits, the employee's actual post-injury wages constitute prima facie evidence of her earning capacity, requiring the employer to produce evidence that higher-paying work is reasonably available to the employee.

The panel cited the Maine Supreme Court’s decision in Fecteau v. Rich Vale Construction, Inc., 349 A.2d 162 (Me. 1975), which involved an employer's petition for review of incapacity seeking to reduce benefits (in which the employer had the burden of proof). The Law Court held that an employee's actual post-injury earnings constitute prima facie evidence of earning capacity, requiring the employer to produce evidence of the availability of higher-paying work in order to prove a higher earning capacity. Employees with post-injury earnings have often cited the "Fecteau presumption" even in cases, unlike Fecteau, where the employee is the petitioning party and has the burden of proof.

The appellate panel's decision in Thurlow, applying the "Fecteau presumption" to an employee's petition, was based on dicta (a statement not essential to the decision) in McIntyre v. Great Northern Paper, Inc. , 2000 ME 6, 743 A.2d 744. In McIntyre, the employee had been awarded 25% partial incapacity benefits in a prior proceeding, based partly on his failure to perform a work search. The employee subsequently had surgery, recovered, got vocational training, searched for work, and found steady employment. The hearing officer denied the employee's petition for review, ruling that he had failed to show a "change in circumstances" since the prior decree.

The Law Court reversed, holding that the employee's vocational training, work search, and subsequent employment constituted a significant change in circumstances relating to the extent of incapacity, and remanded for further proceedings. The Court also cited Fecteau in stating that the employee's post-injury earnings constituted prima facie evidence of his earning capacity. Significantly, the Court did not rule in McIntyre that the employee's incapacity benefits must be based on those post-injury earnings.

Unless Thurlow's extension of Fecteau through the dicta in McIntyre is reversed by the Law Court, or is contradicted by a different Appellate Division panel, employers should assume that, in any case in which employees have post-injury earnings, employers must produce labor market or other evidence regarding work availability and earning potential, even where employees theoretically have the burden of proof.

We would be happy to discuss the Thurlow decision, or any other workers' compensation issues, with you at your convenience.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law