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WCB App Div Affirms Denial of Employer's Review

The Maine Workers’ Compensation Board has just issued a decision upholding the denial of an employer’s Petition for Review seeking to terminate an employee’s incapacity benefits pursuant to the 520-week durational limit in §213.

In Robert Gagnon v. Twin Rivers Paper Co., Gagnon had injured his left shoulder at work in 1986 and was paid benefits for 5% PI. He continued working for Twin Rivers and reinjured his shoulder at work in 1997, requiring 2 surgeries that failed to allow him to return to work after 2004. Gagnon filed a Restoration on the 1986 injury and Twin Rivers filed a PI petition on the 1997 injury. In 2011, the Board issued a decree stating that Gagnon was receiving benefits for total incapacity, apportioning benefits equally between the two injuries, and finding 11% PI from the 1997 injury.

Twin Rivers then filed a Petition for Review on the 1997 injury, arguing for application of the 520-week durational limit. Judge Pelletier found that the prior decree established Gagnon’s total incapacity and that Twin Rivers had submitted no evidence indicating that Gagnon had recovered a partial work capacity, so he denied the Review. He also combined the PI on the 1986 and 1997 injuries, putting Gagnon above the 11.8% PI threshold for lifetime partial benefits. Twin Rivers appealed.

The Appellate Division affirmed the denial of the Review, but it vacated the finding on PI. The AD panel pointed out that, in pursuing a §213 discontinuance, Twin Rivers had the burden of proving 3 elements: (1) that Gagnon had received 520 weeks of incapacity benefits, (2) that his current benefit was for partial incapacity under §213, and (3) that his PI was below the applicable PI threshold. The panel found that Twin Rivers had proven only that Gagnon had received 520 weeks of benefits, but it did not prove that he had a partial work capacity, so §213 did not apply, regardless of his PI. Indeed, the panel vacated Judge Pelletier's decision on PI because the finding of total incapacity mooted the PI issue.

This decision is instructive: although an insurer may be paying part of an employee’s total benefits on one injury, that does not mean the employee is only partially disabled or make applicable the 520-week limitation on partial incapacity benefits. If you have any questions, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law