Decided: February 3, 2017

Topic: Permanent Impairment

This appellate decision presents an interesting look at burden shifting when permanent impairment [PI] is at issue. The panel felt the employee, Ms. Gowen, had met her burden to produce “some evidence to persuade a reasonable fact-finder of the existence of a genuine issue concerning the percentage of permanent impairment.” Ms. Gowen alleged there were additional neck and upper back symptoms related to her injury, which should then be included in her PI evaluation. The panel then goes on to discuss the shift to L.L. Bean’s ‘ultimate’ burden to prove Ms. Gowen’s PI does not exceed the threshold. However, since L.L. Bean did not address these newly alleged symptoms in her neck and upper back with the assessments, they were deemed to not have met their burden – one which is not clearly outlined in this decision, but seemingly remains at the more likely than not level of most issues within our system.

Decided: February 17, 2017

Topic: Appellate Review Standards

This recent decision by the Appellate Division reviews the role the panel plays when evaluating legal causation determinations of an underlying Administrative Law Judge. The Law Court has stated that this “task is not to determine whether the [ALJ] reached the only correct conclusion but rather, whether [the ALJ’s] conclusion is permissible on the record before us.” Comeau v. Maine Coastal Services, 449 A.2d 362, 369 (Me. 1982). Thus, while the panel members may not have made the same determination themselves, this alone does not allow them to overturn the decision.

Decided: January 23, 2017

Topic: Retirement Presumption

In this recent Appellate Division decision, the retirement presumption in §223 of the Workers’ Compensation Act was addressed. For those unfamiliar with this particular section of the Act, the retirement presumption stands for the premise that upon retirement from active employment, when receipt of retirement benefits begins, it is presumed a loss of earnings does not exist. The employee may rebut this presumption with a preponderance of evidence for total incapacity, but should they fail, entitlement to incapacity benefits will be denied.

Decided: January 6, 2017

Topic: Res Judicata

The first Appellate Division decision of 2017 echoes the cluster of res judicata cases from the end of 2016 with some additional interesting highlights regarding §312 opinions and contrary medical evidence.

Date: December 16, 2016

Topic: Entitlement to Incapacity Benefits During Full-time School Attendance

In a recent decision by the Maine Workers’ Compensation Appellate Division, the panel upheld Administrative Law Judge Pelletier’s determination that full-time school attendance does not preclude an award of partial incapacity benefits. The employee’s Petition for Award was granted at the hearing level, providing him with ongoing partial incapacity benefits for a work-related right hand and wrist injury. The Department argued the employee’s decision to attend school full-time without working constituted a removal from the workforce, disqualifying him from receiving incapacity benefits during that period.

The panel disagreed with their arguments and affirmed the decision, providing the employee only needed to show a decrease in his ability to earn due to the effects of the injury.

Full Text

http://www.maine.gov/wcb/Departments/appellate/2016decisions/16-48_Clayton_v._State_of_Maine,_Department_of_Defense,_Veterans_&_Emergency_Management_12-16-16.pdf

Decided: November 3, 2016

Topic: Average Weekly Wage Calculation with Fringe Benefits

It may be tempting to read this recent Appellate Division decision and choose to overlook it due too much math being involved to figure out what exactly has been decided and whether it matters. Luckily for you, I’ve done all the math and will just tell you now – the difference in the two arguments in dollars and cents could be astounding for similar lifetime cases. Plainly, the employer/insurer argued the benefit should be capped at $97.78, but the panel affirmed the Administrative Law Judge’s decision the employee is entitled to $156.05. Here are the facts that get us there…

Decided: October 28, 2016

Topic: Arising out of employment

In a recent en banc decision by the Maine Workers’ Compensation Appellate Division, the panel upheld Administrative Law Judge David Hirtle’s determination that a non-mandatory vaccination injury arose out of the employment. The Workers’ Compensation Board director, Paul Sighinolfi, determined the issues presented by Torrey v. Island Nursing Home warranted consideration by the entire panel of Administrative Law Judges, thus why it is called an *en banc *decision. Also unique is that the oral argument for this case was held live at this past year’s Comp Summit at the Samoset Resort before a large crowd.

Decided: October 20, 2016

Topic: Payment of benefits pending appeal