Library


WCB App Div Decision on MMI, PI and Work Search

The Workers' Compensation Board's Appellate Division has issued a perplexing decision regarding permanent impairment (PI), maximum medical improvement (MMI), and work search.

In Strout v. Blue Rock and Troiano, Strout sustained work-related low back injuries in 1999 and 2001 while working for Blue Rock, and in 2007 while working for Troiano Waste Services. Pursuant to a 2009 decree, he was awarded varying rates partial incapacity benefits as a result of the combined effects of the three injuries. The 2009 decree also established that Strout had reached MMI from his 1999 and 2001 work injuries, and that those injuries caused 11% whole person PI.

In 2011 Blue Rock filed a petition to terminate benefits based on the expiration of the 520-week durational limit on partial incapacity benefits (based on the previous PI determination below the threshold). Troiano filed a petition to reduce benefits (by two thirds) based on the assumption that Blue Rock's compensation obligation would end. Troiano also filed a petition for review of incapacity, seeking a fixed rate partial incapacity benefit order in place of the existing varying rates scheme. Strout filed petitions to determine PI, seeking an increase in the PI determinations for the 1999 and 2001 injuries, hoping to exceed the threshold and defeat Blue Rock's attempt to terminate benefits.

Strout obtained a PI opinion from Dr. Voss stating that he had a 5% PI rating for depression resulting from his back injuries. Dr. Barkin performed a §312 IME, and concluded that Strout had an injury-related behavioral condition, but that it caused no functional impairment, and it was not at MMI because it had not been appropriately treated. Strout also offered evidence of an unsuccessful work search in the hope of obtaining 100% partial incapacity benefits.

In March 2013 ALJ Collier issued a decree denying the employers' petitions to terminate and reduce benefits because they had failed to prove that Strout was at MMI from his 1999 and 2001 injuries. He also denied Troiano's petition for review, and rejected Strout’s request for 100% partial incapacity benefits because he "was not persuaded" by the work search evidence, citing the Monaghan factors in assessing the adequacy of that evidence. In October 2014, Judge Collier issued findings, granting Troiano's petition for review, ordering partial incapacity benefits based on an imputed earning capacity of $300 per week, and otherwise leaving the original decree unchanged. All parties appealed, and the Appellate Division heard oral argument in May 2015 and issued its decision in November 2016.

On the PI/MMI issue, the employers argued that the 2009 decree established PI and MMI on the 1999 and 2001 injuries, and in the absence of any evidence of a change in Strout’s medical or psychological condition, it was error for the ALJ to find that he was not at MMI. The employers also argued that MMI was irrelevant because Dr. Barkin, whose opinion the ALJ accepted, stated that Strout’s behavioral condition caused no functional impairment, and improvement from no impairment would still result in no permanent impairment.

The Appellate Division panel majority ruled at ¶16 that it was unnecessary to address the employers' changed circumstances argument because the employers had failed to demonstrate that Strout had reached MMI from his psychological condition, and therefore had failed to prove that his permanent impairment was below the threshold. In response to the specific argument that MMI had been established by the 2009 PI decree, however, at footnote 2 of the opinion the panel majority ruled that a new MMI date could be determined if Strout demonstrated a change in his psychological condition since that decree, thereby contradicting its ruling in ¶16. This perplexing contradiction is not explained.

On the work search issue, the panel cited the well-settled proposition that, on an employer's petition for review, the employer has the burden of proof, and the employee has a burden of production of evidence regarding the unavailability of suitable work. The panel ruled that Judge Collier's statement that he was "not persuaded" by the work search evidence meant that he erroneously imposed the burden of proof on Strout. The panel also ruled "as a matter of law" that the work search evidence rejected by Judge Collier as inadequate "was sufficient to meet his minimal burden of production to show that work is unavailable to him as a result of the injury." They found that, because Troiano failed to submit labor market evidence of its own, it failed to carry its burden of proof, and it was error for the ALJ to grant the petition for review. There is no explanation or analysis of how inadequate work search evidence can be sufficient to satisfy a burden of production.

We regard as troublesome the panel's ruling that work search evidence deemed inadequate by the fact finder can satisfy a burden of production as a matter of law, without any analysis of the legal factors to be applied in making that determination. In Monaghan, the Law Court held that the adequacy of work search evidence is a mixed question of fact and law. The employers are considering their options regarding appellate review by the Law Court.

If you have any questions regarding this or any other case, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law