WCB App Div Reverses Decision Applying Retirement Presumption

The Maine Worker's Compensation Board Appellate Division has issued a decision reversing a decree in which the Administrative Law Judge applied the retirement presumption in §223 to award only closed-end partial incapacity benefits up to the date of the employee's retirement.

In Roger Paradis v. Twin Rivers Paper Co., Paradis apparently sustained a work injury of some kind and filed a Petition for Review requesting additional incapacity benefits. At some point, Paradis apparently regained a partial work capacity but retired from his job, so Twin Rivers raised the retirement presumption defense in §223 (an employee who retires from "active employment" and who receives non-disability retirement benefits is presumed not to have earning incapacity resulting from the injury). Judge Pelletier found that, even though Paradis was not actually working within his restrictions at the time he retired, he had a partial work capacity when he retired, so Judge Pelletier applied the retirement presumption.

Paradis appealed, arguing that he did not retire from "active employment," because he was not "actively employed" at the time he retired – instead, he was out of work because, even though he had a partial work capacity, Twin Rivers had no suitable light-duty work for him within his restrictions. The Appellate Division, citing past decisions both by the Maine Supreme Court and the Appellate Division itself, ruled that Judge Pelletier erred by interpreting §223 outside of the confines of these past precedents. The A.D. panel reversed the decision and remanded it back to Judge Pelletier for findings on the extent of the employee's ongoing partial incapacity.

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Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law