Robert Charest v. Hydraulic Hose & Assemblies, LLC – Charest sustained a compensable low back injury on April 27, 2001. A 2006 decree awarded 35% partial incapacity benefits. Thereafter, pursuant to sec. 221, the employer coordinated Charest’s receipt of social security old age benefits which resulted in a full offset of the lost time incapacity benefits. In 2017 Charest filed a Petition for Review claiming total incapacity. In 2019 Judge Collier denied Charest’s Petition for Review by concluding the statute of limitations had expired. Charest appealed and the issue before the Law Court was whether Charest’s social security old age retirement benefit payments tolled the statute of limitations. In Charest v. Hydraulic Hose & Assemblies, LLC, 2021 ME 17, the Law Court vacated the ALJ’s decision holding the date of the most recent payment was the date of the most recent offsetting social security old-age payment. The Court remanded the case for “further proceeding on the petition for review of incapacity”.

Following a conference and allowing additional argument, ALJ Collier issued a decision on remand finding that although Charest had continuing restrictions due to his injury, he had not demonstrated a change in medical circumstances since the 2006 decision. Based on vocational expert testimony the ALJ found a change in economic circumstances and concluded that Charest had no employability due to his long absence from the labor market and his increasing age. Yet, the ALJ denied the petition concluding the increase in loss of earning capacity was not related to the 2001 injury but was a result of circumstances occurring thereafter. Charest filed a Motion for Findings of Fact but Judge Collier retired before addressing the motion. The board advised the parties they would be notified when a new ALJ was assigned. Without receiving any additional notice the case was assigned to ALJ Chabot who granted the motion and issued additional findings concluding that the decrease in earning capacity was related in part to the 2001 injury. The Petition for Review was granted, awarding 100% partial incapacity benefits.

The employer appealed arguing the ALJ denied it due process and lacked statutory authority to issue additional findings of fact on a remand. The Appellate panel found that adequate due process was afforded the employer. The minimum requirement of due process is notice and an opportunity to be heard. While the preferred course may have been notice to the parties that Judge Chabot had been assigned, the fact remained the employer had an opportunity to respond to the motion for findings of fact but chose not to do so. It also rejected the employer’s argument that Charest’s only option was a direct appeal under sec. 321-B and a motion for further findings under sec. 318 is not available on a remand decision. The panel concluded that a decision on the merits had not yet been rendered as the initial denial was based on the statute of limitations. Because ALJ Chabot’s decision was the first to address the merits, further findings under sec. 318 was proper.

Finally, the Appellate panel rejected the employer’s argument that the facts did not establish a change in economic circumstances sufficient to overcome the res judicata effect of the prior decision. The panel explained how a combination of factors including prolonged absence from the labor market, pre-existing and subsequent conditions, increase age and work restrictions all impact Charest’s ability to earn and thus his economic circumstances. There was competent evidence to support the ALJ’s decision to award 100% partial.

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Thomas Getchell
Daniel F. Gilligan