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Lamphier v. Bath Iron Works
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 121
Docket:	WCB-99-255
Argued:	May 3, 2000
Decided:	June 27, 2000	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.






ROBERT LAMPHIER v. BATH IRON WORKS CORP.


WATHEN, C.J.


	[¶1]  The employee, Robert Lamphier, appeals from a decision of the
Workers' Compensation Board granting his employer's petition for review of
incapacity and awarding 100% partial incapacity benefits.  See 39 M.R.S.A. §
55-B (Supp. 1991) (effective for injuries occurring after October 17, 1991
and before January 1, 1993), repealed and replaced by P.L. 1991, ch. 885,
§§ A-7, A-8.  Relying on Adams v. Mt. Blue Health Ctr., 1999 ME 105, ¶ 17,
735 A.2d 478, 483, Lamphier contends that he is entitled to benefits for
total incapacity, because he established that there was no available work in
his local community and that he is physically incapable of performing full-
time work in the statewide labor market.  See 39 M.R.S.A. §54-B (Supp.
1991) (effective for injuries occurring after October 17, 1991 and before
January 1, 1993), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8. 
The distinction between 100% partial incapacity and total incapacity is a
matter of some importance because benefits for the former are subject to a
durational limit while benefits for the latter are not.{1}  We agree with
Lamphier's contention and we vacate the decision of the Board.
	[¶2]  The facts may be briefly summarized as follows:  Robert
Lamphier suffered a work-related back and left leg injury on January 30,
1992 while employed at Bath Iron Works ("BIW").  BIW voluntarily accepted
the injury and paid total incapacity benefits.  Lamphier has not returned to
work since the date of injury.  BIW filed a petition for review of incapacity in
1996, seeking to reduce Lamphier's benefits from total incapacity to partial. 
The Board granted the petition in 1998, based on a finding that Lamphier
had regained some partial capacity to work.  The Board found specifically
that "the Employee does have a work capacity, albeit for very sedentary and
part-time jobs."  (Emphasis added).  The applicable version of section 55-B
provides, in pertinent part:
§ 55-B.  Compensation for partial incapacity

	While the incapacity for work is partial, the employer
shall pay the injured employee a weekly compensation equal to
2/3 the difference, due to the injury, between the employee's
average gross weekly wages, earnings or salary before the injury
and the weekly wages, earnings or salary that the employee is
able to earn after the injury, but not more than the maximum
benefit under section 53-B.  An employee is not eligible to
receive compensation under this section after the employee has
received 520 weeks of compensation under section 54-B, this
section or both sections.

	1. Evaluation standards.  This subsection governs the
determination of an injured employee's degree of incapacity
under this section.
A. During the first 40 weeks from the date of the injury,
the commission shall consider the availability of work that
the employee is able to perform in and around the
employee's community and the employee's ability to obtain
such work considering the effects of the employee's work-
related injury.  If no such work is available in and around
the employee's community or if the employee is unable to
obtain such work in and around the employee's
community due to the effects of a work-related injury, the
employee's degree of incapacity under this section is
100%.  The employee has the burden of production and
proof on the availability of work.

B. After the first 40 weeks from the date of injury, the
employer has the burden of production regarding the
employee's capacity to perform work and the burden of
producing a list of suitable and available job positions
within the State.  The employee has the burden of
production regarding a good-faith exploration of the
positions on the list.  The employee bears the ultimate
burden of proof to show that the employee was not hired
for one of the positions.  The employer shall pay
reasonable expenses incurred by the employee in
conducting the exploration of the positions on the list
provided by the employer.

. . . .
39 M.R.S.A. §55-B (Supp. 1991), repealed by P.L. 1991, ch. 885, § A-7.  
	[¶3]  Section 55-B represents a codification, and a modification, of
the so-called "work-search" rule whereby partially incapacitated employees
may receive the equivalent of total benefits, or 100% partial benefits.  See
Tripp v. Philips Elmet Corp., 676 A.2d 927, 928-29 (Me. 1996).  Pursuant to
the work-search rule, because BIW established a partial physical capacity to
work, the burden of production shifted to the employee to show the
unavailability of work in his local community in order to prove entitlement
to 100% partial benefits.  See Ibbitson v. Sheridan Corp., 422 A.2d 1005,
1009 (Me. 1980).   Although Lamphier had not conducted a work-search, he
submitted a labor market survey that the Board concluded satisfied his
burden of production to show the unavailability of work within his
restrictions.  See e.g., Poitras v. R. E. Glidden Body Shop, 430 A.2d 1113,
1120 (Me. 1981).  Consequently, the burden of proof returned to BIW to
prove that, notwithstanding the employee's evidence demonstrating the
unavailability of work, there is available work within the employee's
restrictions in his local community.  See Ibbitson, 422 A.2d at 1009.  The
Board concluded that BIW's labor market evidence failed to meet that
burden, and, concluded, therefore, that Lamphier is entitled to 100% partial
incapacity benefits.  Lamphier contends that because he is also physically
unable to perform full-time work in the statewide labor market, he is
entitled to total incapacity benefits.  We granted Lamphier's petition for
appellate review pursuant to 39-A M.R.S.A. § 322 (Pamph. 1999).
	[¶4]  Lamphier argues that it was error to award 100% partial
incapacity benefits pursuant to section 55-B, and that the Board was
required to award total incapacity benefits pursuant to former section 54-B. 
In Adams, 1999 ME 105, ¶ 17, 735 A.2d at 483, we held that, pursuant to
the language of former section 54-B, an employee with a partial physical
incapacity may establish entitlement to total incapacity benefits by showing
(1) that employment within the employee's restrictions is unavailable in his
or her local community, and (2) that he or she is physically unable to
perform full-time work in the statewide labor market, regardless of the
availability of that work.  
	[¶5]  Our decision in Adams was expressly restricted to injuries
occurring after the enactment of section 54-B in 1987, but prior to the
amendment of that statute in 1991.  Therefore, it is not necessarily
controlling authority for Lamphier's 1992 date of injury.  Id. at ¶ 17, 735
A.2d at 478.  The language of the total incapacity statute that we interpreted
in Adams, however, is similar and provides in pertinent part:
	While the incapacity for work resulting from the injury is
total, the employer shall pay the injured employee a weekly
compensation equal to 2/3 his average gross weekly wages,
earnings or salary,. . . .

	. . . .

	2. Limitation.  Any employee who has reached maximum
medical improvement and is able to perform full-time
remunerative work in the ordinary competitive labor market in
the State, regardless of the availability of such work in and
around his community, is not eligible for compensation under
this section, but may be eligible for compensation under section
55-B. . . . .
39 M.R.S.A. § 54-B (1989), amended by P.L.1991, ch. 615, § D-6, repealed
and replaced by P.L. 1991, ch. 885, § A-7.  
	[¶6]  As we recognized in Adams, 1999 ME 105, ¶9, 735 A.2d at
480, the language of section 54-B is ambiguous.  Were we to interpret
section 54-B to apply only to cases of total physical incapacity, as the
opening paragraph suggests, the limitation in subsection 2 would be
rendered meaningless.  Id.  An employee with a total physical incapacity,
i.e., one who is unable to perform either part-time or full-time work, would,
by definition, never be capable of performing "full-time" work in the
statewide labor market.  Our examination of the legislative history disclosed
that, at the time section 54-B was enacted in 1987, the Legislature did not
understand the term "total incapacity" to be limited to employees with total
physical incapacity.  Id.  at ¶¶ 13-14, 735 A.2d at 481-82.  Instead, the
Legislature understood that, pursuant to the work search rule, total
incapacity benefits might be available in some cases of partial physical
incapacity when work is unavailable to the employee in his or her local
community.  Id.  The language of subsection 54-B(2) added to the definition
of total incapacity, the requirement that the employee must also be
physically incapable of performing full-time work anywhere in the statewide
labor market, regardless of the availability of that work.  Id.  
	[¶7]  BIW relies primarily on our language set forth in footnote 3 of
Adams raising the possibility that our construction of section 54-B might
not be applicable to injuries occurring after the effective date of the 1991
amendments:
	It appears that the Legislature itself, in 1991,
interpreted section 54-B in the manner used by the Hearing
Officer in this case.   As a consequence of that interpretation,
when the work-search rule was modified in 1991, the
amendments were confined to the partial incapacity statute,
section 55-B.  P.L. 1991, ch. 675, Pt. D, § D-7, codified as 39
M.R.S.A. § 55-B (Supp. 1991) (effective for injuries occurring
after October 17, 1991 and before January 1, 1993).  Had the
Legislature interpreted section 54-B, in 1991, to include a work-
search requirement, as it had in 1987 and 1989, it is plausible
that the Legislature would have also expressly modified the
work-search rule in section 54-B, as it did with section 55-B. 
These later amendments could lead to the conclusion that the
Legislature now interprets total incapacity to mean total physical
incapacity.  However, notwithstanding the possibility that the
Legislature's own understanding of total incapacity has "evolved"
between the years of 1987 and 1991, in the absence of changes
in section 54-B reflecting that evolution, we must interpret the
language at issue in section 54-B according to the legislative
intent at the time of its enactment.
Id. at ¶ 17, n.3, 735 A.2d at 483, n.3.  Relying on this statement, BIW now
contends that the statutory amendments of 1991 reflect such an "evolution"
in the Legislature's understanding of total and partial incapacity and that,
after 1991, total incapacity benefits are only available to employees with total
physical incapacity.  We are unable to agree.
	[¶8]  In 1991, the Legislature amended both sections 54-B and 55-B. 
P.L. 1991, ch. 675, Pt. D, §§ D-6, D-7, repealed by P.L. 1991, ch. 884, § A-7. 
The amendment to section 55-B added sub-parts A and B, quoted above,
creating a modified, two-part work-search requirement applicable to the
first 40 weeks following the date of injury and thereafter.  P.L. 1991, ch.
675, Pt. D, § D-6, repealed by P.L. 1991, ch. 884, § A-7.  Subsection 54-B(2)
was amended to remove the requirement of maximum medical
improvement.   P.L. 1991, ch. 675, Pt. D, § D-7, repealed by P.L. 1991, ch.
884, § A-7.  The limitation, as amended in 1991, provides:
	2. Limitation.  Any employee who is able to perform full-
time remunerative work in the ordinary competitive labor
market in the State, regardless of the availability of such work in
and around his community, is not eligible for compensation
under this section, but may be eligible for compensation under
section 55-B. . . . .
Id.  The purpose of removing the "maximum medical improvement"
language in section 54-B was to avoid the inevitable uncertainty attendant
with fixing a date of maximum medical improvement in workers'
compensation proceedings.{2} 
	[¶9]  Notwithstanding our suggestion in Adams that the Legislature's
interpretation of total incapacity may have "evolved" by 1991, we now
conclude that we must apply subsection 54-B(2) as that statute was
originally enacted, unless and until the Legislature repeals or significantly
amends the language of that provision.  The 1991 amendment, removing
reference to maximum medical improvement, did not significantly alter the
meaning of that subsection with respect to the issue in this case, nor can it
be interpreted to limit the application of that subsection to employees with
total physical incapacity.  We also cannot conclude that the limitation in
subsection 54-B(2) is inconsistent with the modified work-search rule
adopted in subsections 55-B(1)(A) and (B).  As we stated in Adams, the
subsection 54-B(2) limitation
is not a codification of the work-search rule.  Unlike the work-
search rule, which hinges on the availability of work, the crucial
issue for purposes of subsection 54-B(2) is whether the
employee is physically "able to perform" work in the ordinary
competitive statewide labor market.  This is a physical test and
does not relate to the availability of the work to the employee. 
Accordingly, partially incapacitated employees could only receive
total benefits pursuant to section 54-B if they could establish (1)
the unavailability of work in their local communities, i.e., the
former "work-search" rule, and (2) the inability to perform full-
time work in the statewide labor market.
1999 ME 105, ¶ 14, 735 A.2d at 482.  The definition in 54-B, requiring
physical inability to work, and the modified work-search rule in 55-B(1)(A)
and (B), addressing availability of work, are not inconsistent, but
complementary.   
	[¶10]  Accordingly, our construction of  the earlier version of
section 54-B in Adams applies with equal force to injuries occurring after
October 17, 1991 (the effective date of the 1991 amendments), but prior to
January 1, 1993 (the effective date of title 39-A).   In this case, the
employee proved the unavailability of work in his local community and
proved that he is physically unable to perform full-time work in the
statewide labor market.  By virtue of the language of 39 M.R.S.A. § 54-B, he
is therefore entitled to total incapacity benefits.
	The entry is:
Decision of the Workers' Compensation
Board is vacated.  Remanded to the
Workers' Compensation Board for
further proceedings consistent with the
decision herein.

Attorney for employee: Benjamin I. Grant, Esq., (orally) Kaplan & Grant P O Box 7474 Portland, ME 04112 Attorney for employer: John H. King Jr., Esq., (orally) Norman, Hanson & DeTroy, LLC P O Box 4600 Portland, ME 04112-4600
FOOTNOTES******************************** {1} Partial incapacity benefits may be terminated after the expiration of 520 weeks pursuant to section 55-B, whereas total incapacity benefits are subject to no durational limitation pursuant to former section 54-B. See 39 M.R.S.A. §§ 54-B, 55-B (Supp. 1991), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8. Moreover, total incapacity benefits can be adjusted for inflation after the third anniversary following the injury, while partial benefits cannot be adjusted. Id. {2} Section 55-B was also amended to remove reference to maximum medical improvement. P.L. 1991, ch. 675, Pt. D, § D-7, codified at 39 M.R.S.A. § 55-B (Supp. 1991), repealed by P.L. 1991, ch. 885, § A-7. The legislative debates discuss the purpose for removing the maximum medical improvement requirement, and why the durational limit was increased from 400 to 520 weeks in section 55-B: What we have done this time is we have taken . . . maximum medical improvement (which never worked in the first place) and discarded it. . . . We found, through questioning, that the average for maximum medical improvement was 120 weeks. So, we substituted the predictability of 120 weeks and discarded the unpredictability of maximum medical improvement which allowed us to make some cost savings. II Legis. Rec. H-1258 (1st Reg. See. June 26, 1991) (Statement of Rep. Ruhlin). See also L.D. 1957, Statement of Fact (1115th Legis. 1991) (Discussing identical language in a previous proposed but rejected amendment).