Rita Ouellette v. Northern Light EMMC- With a dissenting opinion by ALJ Knopf, the Appellate Division upholds the ALJ’s determination that application of the retirement presumption under 39-A M.R.S.A. sec. 223 ceased when the employee’s non-disability retirement pension of social security old age benefits converted to social security disability benefits (SSDI). In Ouellette v. Northen Light EMMC, Dec. No. 24-7 (App. Div. 2024), Ouellette sustained a left knee injury of 2/27/06 and left ankle fracture injury of 8/16/12. She worked modified duty until 4/1/16 when she terminated active employment and commenced social security old age retirement benefits. The social security retirement benefits converted to SSDI on 9/1/16.

Ouellette later filed petitions for award and underwent a sec. 312 Board IME in March 2022. In granting the petitions, the ALJ did not award incapacity benefits from 4/1/16 through 8/31/16 because of the presumption of no loss of earning capacity under sec. 223. She had terminated active employment and began receiving non-disability retirement. Because she was no longer receiving non-disability retirement as of 9/1/16, the ALJ concluded the presumption no longer applied and awarded periods of partial incapacity ongoing. EMMC argued to the Appellate Division that once the sec. 223 presumption applies it can only be rebutted by proof Ouellette had total physical incapacity to work, citing the Law Court cases of Costales and Pendexter. In Pendexter, 1999 ME 34, the employee retired at age 55 and received non-disability pension for two years before he returned to different employment. He later stopped that job due to a non-work-related injury. The Law Court upheld the ALJ’s application of the presumption, holding that terminating active employment refers to the employee’s employment at the time of the original retirement, and important for this case, his return to work did not rebut the presumption.

The split appellate panel upheld the ALJ’s determination that the presumption no longer applied to Ouellette because one of its fundamental statutory requirements, receipt of non-disability pension, no longer existed. The panel distinguished Pendexter because even though the employee returned to work the two statutory requirements for application of the presumption continued: he had terminated active employment and was receiving non-disability pension.

In her dissent, ALJ Knopf maintained that once the presumption is triggered at the time of original retirement and that proof she is no longer receiving the pension does not rebut the presumption under the statute. It may only be rebutted as allowed by statute: total physical inability to work.

The majority also upheld the ALJ’s determination that Ouellette’s resignation did not constitute a refusal of suitable employment based on her testimony that the injuries were becoming more difficult to work with and negatively impacting her health. Her resignation was with good cause and was reasonable.

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Daniel F. Gilligan