WCB App Div Affirms Denial of Employer's Review

The Maine Workers’ Compensation Board's Appellate Division has just issued a new decision affirming the denial of the employer’s Petition for Review, because the employer did not sustain its burden of proving that the employee could earn more money than her current wage.

In Dolores Cortes v. LePage Bakeries, Ms. Cortes injured her right knee at work, and after surgery she returned to her regular full-time work with a modest restriction requiring a sit/stand workstation. Her preinjury AWW was $845, and LePage had voluntarily paid her lost time and medical benefits. After she returned to full-time work, however, Ms. Cortes earned $200 per week less than her pre-injury wage because, sometime after her injury, LePage had discontinued overtime for its workers and instead hired more workers.

LePage argued that these diminished earnings were not the result of her injury but were instead the result of LePage's change in policy about overtime. Judge Goodnough concluded that this change in economic circumstance, by itself, did not warrant a reduction in her benefits. He applied the Fecteau presumption (that her current earnings were prima facie proof of her earning capacity), thus requiring LePage to produce evidence that “regular employment” paying more was available to Ms. Cortes and was compatible with her work restriction.

LePage appealed, but the Appellate Division panel agreed with Judge Goodnough’s approach. The panel pointed out LePage introduced no evidence to show Ms. Cortes could earn more wages after her injury, and that the LePage’s corporate decision to eliminate overtime was not enough to carry LePage's burden of proof. In this case, Ms. Cortes was already working 36 to 48 hours per week, so even a labor market survey showing the availability of suitable second jobs may not have allowed LePage to prevail, but it would at least have given them a chance.

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Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law