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WCB App Div Says PI Decree Is Final (Usually)

The WC Board’s Appellate Division has just issued another decision applying the Maine Supreme Court’s recent decision in Bailey v. City of Lewiston, and holding that once the WCB establishes MMI and PI by decree, the parties cannot later change those findings.

In Lorraine Somers v. S.D. Warren, S.D. Warren had obtained a 2008 determination of 7% permanent impairment (PI) for a 2000 right knee injury. The 2008 decree had also adopted the §312 IME finding that the psychological adjustment disorder resulting from the knee injury was not permanent, so Ms. Somers had no PI for that condition. S.D. Warren subsequently filed a Petition for Review seeking to terminate Ms. Somers’ partial weekly benefits based upon the durational limit set forth in 39-A M.R.S.A. §213(1)(A).

Ms. Somers argued that her psychological condition had worsened, and that the Board should add a PI rating for depression to the previous PI rating. Judge Elwin concluded that Ms. Somers failed to establish a “change in medical circumstances” sufficient to overcome the res judicata effect of the 2008 decree. She granted the Petition for Review, and Ms. Somers appealed, arguing that Judge Elwin erred by failing to find a change in medical circumstances based on the worsening of both her physical and her psychological condition, now diagnosed as depression.

After the parties had briefed and argued the Somers case at the WCB Appellate Division, the Court issued its decision in Bailey. The Appellate Division asked the parties to supplement the briefing to address how Bailey applied to Ms. Somers’ case. The panel then ruled that the issue in Bailey, as framed by the Court, was whether the Act allows the Board to revise a previously established impairment rating.

The panel ruled that Bailey holds that PI and MMI are not subject to reconsideration, rendering the change in circumstances analysis inapplicable, and it affirmed Judge Elwin’s decision terminating Ms. Somers incapacity benefits. The Appellate Division left open the possibility that additional PI for a separate condition or sequela not addressed in the initial PI determination could be added subsequently under the principles articulated in Cote v. Osteopathic Hosp. of Me. in 1982 and Harvey v. H.C. Price in 2008.

If you have any questions, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law