WCB App Div Affirms Partial Award to Employee in School

The Maine Worker's Compensation Board's Appellate Division has recently issued a decision applying prior decisions by the Maine Supreme Court, holding that an injured employee with ongoing work restrictions is entitled to partial incapacity benefits even though he has unilaterally "chosen" to remove himself from the work force by attending school full-time.

In Jonathan Clayton v. State of Maine, Clayton injured his right hand and wrist at work and returned to work with restrictions, until the State laid him off. Clayton filed a Petition for Award, which Judge Pelletier granted, awarding him ongoing partial benefits based upon an imputed full-time earning capacity.

The State had apparently argued that Clayton was disqualified from receiving any incapacity benefits, because he had chosen to "return to school full-time" and to look for only part-time work that fit around his school schedule. Judge Pelletier imputed Clayton's earnings based on a full-time, light-duty work capacity and ordered the State to pay him partial incapacity benefits accordingly.

The State appealed that decision, but the Appellate Division panel found that the record contained "competent evidence" (apparently a medical report from a hand specialist) of ongoing partial incapacity related to the work injury. The panel cited two prior Maine Supreme Court cases (Tucker and Johnson) which held that an employee's return to full-time school does not legally disqualify him from receiving partial incapacity benefits based on his actual earning capacity.

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Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law