WCB Appellate Division Decisions

The Maine Worker's Compensation Board's Appellate Division has recently issued two interesting decisions.

In Nielsen v. Kelly Services, Nielsen injured her shoulder while cleaning offices and had surgery 14 months later. She filed a Petition for Award, which Judge Elwin granted ordering payment of total incapacity benefits for 3 months after surgery, but declining to order payment of 100% partial incapacity benefits for the periods before and after the surgery, because Nielsen failed to demonstrate entitlement to those benefits based on the quality of her work search. Judge Elwin also denied any fixed partial incapacity benefits before and after the surgery because she found, based on her restrictions and work history, that Nielsen was capable of earning at least as much as her pre-injury wage. Nielsen failed to request further findings of fact and conclusions of law, so the Appellate Division assumed that Judge Elwin made whatever factual determinations were needed to support her decision.

Nielsen argued that she had looked for work for 2 months and had 2 job interviews but became discouraged and stopped looking for work. The Appellate Division held that the record contained competent evidence supporting Judge Elwin's decision denying 100% partial incapacity benefits. On the appeal, Nielsen represented herself, but she had an advocate during at least some of the proceedings. The lessons here are that partially-incapacitated employees must perform sustained good faith work searches in order to qualify for 100% partial incapacity benefits, and that parties planning to appeal should ordinarily file requests for further findings of fact and conclusions of law in order to increase their chances of success on appeal.

In Sylvester v. Marco Petroleum, Sylvester was injured at work and was thereafter laid off, so the WC Board awarded him ongoing total incapacity benefits. Marco found a job for Sylvester at a nonprofit organization and offered to pay him $7.50 per hour for about 6 hours per week, which Marco accepted. Marco then filed a Petition for Review seeking an order reducing his benefits to reflect his earnings, and Marco unilaterally reduced Sylvester's weekly benefits as permitted by Section 205(9)(B)(2). Sylvester filed a Petition for Penalties with the Abuse Investigation Unit arguing that Sylvester was volunteering, not working, and requesting that the AIU fine Marco $200 per day.

The petition for penalties was handled by Hearing Officer Dunn, who ordered the filing of position papers but declined to hold a testimonial hearing, finding an absence of "extraordinary circumstances," in accordance with by WCB Rule Ch. 15. H.O. Dunn then issued a decision declining to impose a fine and finding that Marco's reduction was proper based on Sylvester's actual earnings. Sylvester filed a motion for further findings of fact and conclusions of law and asked H.O. Dunn to take testimony to allow Sylvester a chance to prove that the job was not "real at all." H.O. Dunn denied the motion, and Sylvester appealed.

The Appellate Division panel vacated H.O. Dunn's decision for 2 reasons: (1) he should have allowed an evidentiary hearing; and (2) he should have ordered a stay of the proceedings until the Administrative Law Judge issued a decision on the Petition for Review, to avoid conflicting results. This means that the fact-finding and legal rulings will be rendered by the ALJ after a normal hearing process. If the ALJ finds that there is employment with earnings, that finding should dictate the outcome of the penalties petition.

The panel pointed out the potential res judicata problem inherent in parallel proceedings within the board involving the same set of facts. Employees sometimes attempt to gain a favorable ruling from the AIU that they could probably not obtain through a formal proceeding before an Administrative Law Judge. For that reason, it seems to be wise policy, and helpful to employers, to require the AIU to defer to the ALJ in these situations.

If you have any questions about these or any other cases, please contact us.

Thomas Getchell
Michael Richards
Daniel Gilligan
Attorneys at Law