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New WCB App. Div. Opinion on Work Search

The Maine Workers’ Compensation Board Appellate Division has just issued a decision holding that (1) to obtain total incapacity benefits on her petition for review, a partially disabled employee must present sufficient good faith work search evidence, and (2) on the employer’s petition to determine PI, where the employee presented evidence of PI including sequela symptoms not considered in the employer's PI opinions, the employer must present evidence addressing the causal relationship between the sequela symptoms and the work injury.

In Paula Gowen v. L.L. Bean, Gowen sustained a 2004 gradual work injury established by a 2006 consent decree described as an injury to the “right hand, right arm and right shoulder and related body parts. Because it could no longer accommodate her work restrictions, Bean laid her off in January 2008. In March 2008 Gowen obtained part time restricted work of 20 hours per week with Mr. Bagel. She worked beyond those restrictions, however, and had to leave that job in June 2008.

In 2012 Bean filed both a Certificate of Reduction contending that Gowen could then perform full time work, and a Petition to Determine PI. Gowen filed a Petition for Review claiming an entitlement to either total or 100% partial incapacity benefits. Judge Collier granted Gowen's Review in part, ordering payment of partial benefits based on an assumed earning capacity of $150 per week. He granted Bean's PI Petition, finding 11% PI per the opinions of Dr. Esponnette and Dr. Pier, thus subjecting Gowen's partial incapacity benefits to the 520-week limitation. Gowen appealed both decisions.

The Appellate Division upheld Judge Collier’s decision on the Review but vacated his decision on PI. On the Review, the panel held that Judge Collier properly applied the Monaghan factors to Gowen’s modest work search, finding she failed to prove the unavailability of suitable work. Gowen had failed to disclose work search or labor market evidence in discovery, so she was permitted to offer only very limited work search testimony at the hearing.

Gowen testified that after the 2004 injury to her right upper extremity she began to have troubles with her neck and upper back. Bean offered PI opinions of Drs. Esponnette and Pier of 11% PI based on impairment to the right upper extremity, but neither doctor addressed the causal relationship of the neck and back to the work injury or indicated if their 11% rating included the neck and back. In deposition testimony, Dr. Manahan offered an opinion of 19% PI, including the neck and back symptoms. The ALJ rejected Dr. Manahan’s opinion as unpersuasive due to his failure to utilize the AMA Guides, and accepted the 11% PI ratings of Drs. Esponnette and Pier.

The AD found that Judge Collier erred by granting the petition to determine PI because Gowen’s testimony, combined with the testimony of Dr. Manahan, met Gowen’s burden of production under the Farris and Bisco cases that a genuine issue exists as to whether the neck and back symptoms are within the scope of the injury, and if so whether Gowen suffers additional PI as a result. Accordingly, Bean failed to carry its ultimate burden of proof that the PI rating was below the applicable 13.4% threshold by establishing either the neck and back were not within the scope of the injury, or that any PI resulting from the neck and back did not increase the 11% PI for the upper extremity above the threshold.

This decision is one of several decisions pending that address the nature of the evidence the employee must present to meet the burden of production under Farris and Bisco in order to require the employer to obtain additional evidence on causation and PI ratings for claimed sequelae of the work injury. Employees are taking the position that their own testimony alone, without evidence of a PI rating, is enough to meet their burden of production even where there are prior board determinations of PI subject to res judicata effect. Here, the AD indicates that the employees’ testimony suggesting causation of new symptoms, plus a rejected medical opinion suggesting some PI for the new symptoms, meet that burden of production.

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

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law