Kevin Eaton v. City of Bangor – Where the employee had limited work capacity but surveillance showed some ability to perform pre-injury work duties, and the employee failed to introduce evidence that work was unavailable in his local community as a result of the work injury, the ALJ did not err in imputing an 1 hour per day, 5 days per week minimum wage earning capacity of $60.75 per week. In Eaton v. City of Bangor, Dec. No. 22-38, Eaton injured his head and neck at work on 1/19/18. He briefly returned to work but went out again due to continuing head related symptoms. In 2019 Bangor conducted surveillance and shared the results with several medical providers who offered differing opinions on work capacity and the ongoing effects of the injury. Following a 21-Day Certificate of Reduction, Eaton filed a petition for review and request for provisional order. After weighing all the evidence and in the absence of other evidence addressing how his limitations interact with the local labor market, and considering factors such as age, education, vocational history and work restrictions, the ALJ found Eaton would likely be unable to earn more than minimum wage and imputed a weekly earning capacity of $60.75 based on work capacity to work 1 hour per day, 5 days per week.
Eaton appealed arguing the ALJ erred by imputing any earning capacity because obviously no job exists in the labor market of 1 hour per day, 5 days per week. He did not appeal the findings relative to work capacity. The Appellate Division held that there is no mathematical formula for determining earning capacity. An ALJ can consider many relevant factors to arrive at a figure that accurately determines the ability to earn wages. The ALJ’s determination will be overturned only if it lacks competent evidence. Here, the ALJ considered the medical opinions and surveillance evidence to determine earning capacity. It rejected Eaton’s argument that it is obvious that no job exists in the labor market for a 1 hour per day, 5 days per week job, stating that under Monaghan, Eaton bore the ultimate burden of persuasion that work was unavailable in the local community as a result of his work injury. It also rejected Eaton’s argument the ALJ should have found him totally incapacitated under 39-A M.R.S.A. 212 because he failed to appeal findings relative to his work capacity.
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Daniel F. Gilligan