The Maine Workers’ Compensation Board Appellate Division’s recent decision in Gregory Traussi v. B&G Foods, Inc. could spell trouble for employers and insurers if the decision is not reversed on appeal.

In this case, an employee sustained work-related low back injuries in 2006, 2010, and 2011. A prior decree found that the employee had suffered a closed-ended period of earning incapacity related to the 2006 and 2010 dates of injury which ended on November 7, 2010. In the most recent round of litigation, the employee sought benefits for the new 2011 back injury and to reinstate benefits for the 2006 and 2010 injuries.

In the appealed decision, the hearing officer found that the 2011 injury was a temporary aggravation which had ended. She also found that the employee’s ongoing disability was related to his 2006 injury and reinstated benefits for that injury. However, she found that he failed to prove that the 2010 injury contributed to his ongoing incapacity after November 7, 2010 and denied reinstatement of benefits for that injury.

The employee appealed, arguing in part that because the previous decree had found that his closed-ended period of incapacity was related to both the 2006 and 2010 injuries, it is now res judicata (meaning “a matter already judged”) that his current incapacity was related to those injuries as well. A determination is res judicata when it was (1) actually litigated, (2) determined by a final and valid judgment, and (3) essential to the prior decision.

In a 2-1 majority decision, the Appellate Division agreed with the employee. It concluded that because the prior decree found the closed-ended period of incapacity that ended on November 7, 2010 was related to the 2006 and 2010 injuries, the issue of whether ongoing incapacity was related to those injuries could not be re-litigated.

One member of the panel dissented. He noted that the employee bears the burden of proof of incapacity on a petition to restore benefits. He also argued that the issue of whether any ongoing incapacity is related to the 2006 and 2010 injuries cannot be res judicata, because it would not have been “essential” to the prior decision: In the prior litigation, the employee failed to prove incapacity beyond November 7, 2010. The dissent also noted that, unlike a finding of whether an injury is work-related, the issue of whether an employee’s ongoing incapacity is related to a work injury is subject to change over time, and therefore should not be given res judicata effect.

This decision is troubling and arguably shifts the burden of proof on a petition for restoration from the employee to the employer. It allows the employee to use a finding that a work injury at one time caused incapacity to escape the burden of proving that the work injury continues to cause incapacity indefinitely. It is possible that the case will be appealed to the Maine Law Court. The attorneys at Tucker Law Group will be watching this case with interest and will post updates accordingly.