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Abbott v. M.S.A.D. 53, corrected 11-16-00

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 201
Docket:	WCB-99-582
Argued:	September 6, 2000
Decided:	November 13, 2000	

Panel:WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
KATRINA F. ABBOTT v. SCHOOL ADMINISTRATIVE DISTRICT NO. 53 and SCHOOL MANAGEMENT ASSOCIATION

CLIFFORD, J.

	[¶1]  The employee, Katrina F. Abbott, appeals from a decision of a
Hearing Officer of the Workers' Compensation Board terminating partial
incapacity benefits upon the expiration of 260 weeks of benefits. 
39-A M.R.S.A. § 213 (Pamph. 1999).  Abbott contends that, because she was
receiving benefits on January 1, 1999, she is entitled to the 52-week
extension for partial benefits that went into effect on January 1, 1999,
pursuant to Board Rule 2, chapter 2.  Me. W. C. B. Rule, ch. 2, § 2.2.  Because
the 260-week limitation for partial benefits had been reached during the
preceding year when no Board-ordered 52-week extension was in effect,
Abbott is not entitled to the 52-week extension that began January 1,
1999.  Accordingly, we affirm the decision.
	[¶2]  Abbott suffered a work-related injury to her back on September
2, 1993, while employed as a cafeteria supervisor at M.S.A.D. #53.  She
was voluntarily paid the equivalent of total incapacity benefits beginning
on September 8, 1993.  M.S.A.D. #53 unilaterally discontinued benefits on
October 7, 1998, after Abbott had received benefits for 260 weeks. 
Abbott responded by filing a petition for review, together with a request
for provisional order, in January, 1999.   The Board issued a provisional
order extending benefits pending resolution of the petition for review, in
part, because the employer failed to file a certificate of discontinuance
as required by 39-A M.R.S.A. § 205(9)(B)(1) (Pamph. 1999). 
	[¶3]  In February of 1999, M.S.A.D. #53 mailed Abbott a certificate of
discontinuance notifying her of a termination of benefits and giving the
following reasons for termination: (1) Abbott's work-related condition
had ended and, in the alternative; (2) because Abbott is partially
incapacitated, suffers from no more than 5% whole body impairment, and
has received in excess of 260 weeks of benefits, she is no longer entitled
to further partial benefits.  The Hearing Officer denied Abbott's second
motion for a provisional order to reinstate benefits in March of 1999.
	[¶4]  The Hearing Officer initially granted Abbott's petition for
review and awarded 100% partial incapacity pursuant to 39-A M.R.S.A. §
213, finding that her ongoing back condition is causally related to her
1993 work-injury.  Following the employer's motion for findings of fact,
however, the Hearing Officer reversed himself in part.  The Hearing
Officer's further findings and conclusions of law state, in pertinent part:
		FINDINGS

	The employee received 260 weeks of indemnity benefits
by September 7, 1998, or in any event in excess of 260 weeks
of benefits by December 31, 1998. 

		CONCLUSIONS OF LAW

	1.  The Workers' Compensation Board enacted Section 2
of Chapter 2 of the Rules and Regulations of the Workers'
Compensation Board as of May 8, 1999.  Extensions to 312
began as of January 1, 1999.

	2.  The Board finds that as a matter of law the
employee's entitlement to workers' compensation benefits
ended at 260 weeks, the date of which was prior to either
January 1, 1999, or May 8, 1999.
We granted Abbott's petition for appellate review pursuant to 39-A
M.R.S.A. § 322 (Pamph. 1999).
	[¶5]  Section 213 provides:
§ 213.  Compensation for partial incapacity
	1. Benefit and duration.  While the incapacity for work is
partial, the employer shall pay the injured employee a weekly
compensation equal to 80% of the difference between the
injured employee's after-tax average weekly wage before the
personal injury and the after-tax average weekly wage that
the injured employee is able to earn after the injury, but not
more than the maximum benefit under section 211. 
Compensation must be paid for the duration of the disability if
the employee's permanent impairment, determined according
to the impairment guidelines adopted by the board pursuant to
section 153, subsection 8 resulting from the personal injury is
in excess of 15% to the body.  In all other cases an employee is
not eligible to receive compensation under this section after
the employee has received 260 weeks of compensation under
section 212, subsection 1, this section or both.  The Board may
in the exercise of its discretion extend the duration of benefit
entitlement beyond 260 weeks in cases of extreme financial
hardship due to inability to return to gainful employment.  This
authority may not be delegated to a hearing officer and such
decisions must be made expeditiously.

	2. Threshold adjustment.  Effective January 1, 1998 and
every other January 1st thereafter, the board, using an
independent actuarial review based upon actuarially sound 
data and methodology, must adjust the 15% impairment
threshold established in subsection 1 so that 25% of all cases
with permanent impairment will be expected to exceed the
threshold and 75% of all cases with permanent impairment
will be expected to be less than the threshold.  The actuarial
review must include all cases receiving permanent impairment
ratings on or after January 1, 1993, irrespective of date of
injury, but may utilize a cutoff date of 90 days prior to each
adjustment date to permit the collection and analysis of data. 
The data must be adjusted to reflect ultimate loss
development.  In order to ensure the accuracy of the data, the
board shall require that all cases involving permanent injury,
including those settled pursuant to section 352, include an
impairment rating performed in accordance with the guidelines
adopted by the board and either agreed to by the parties or
determined by the board.  Each adjusted threshold is applicable
to all cases with dates of injury on or after the date of
adjustment and prior to the date of the next adjustment.

	3.  Dates of injury between January 1, 1993 and January 1,
1998.  An employee whose date of injury is between January 1,
1993 and January 1, 1998, who has not settled the claim
pursuant to section 352 and whose impairment rating is 15%
or less to the body but exceeds the adjusted threshold
established pursuant to subsection 2 on January 1, 1998 is
entitled to compensation for the duration of the disability. 
Reimbursement to the employer, insurer or group self insurer
for the payment of all benefits payable in excess of 260 weeks
of compensation under this subsection must be made from the
Employment Rehabilitation Fund.

	4. Extension of 260-week limitation.  Effective January 1,
1998 and every January 1st thereafter, the 260-week
limitation contained in subsection 1 must be extended 52
weeks for every year the board finds that the frequency of
such cases involving the payment of benefits under section
212 of 213 is no greater than the national average based on
frequency from the latest unit statistical plan aggregate data
for Maine and on a countrywide basis, adjusted to a unified
industry mix.  The 260-week limitation contained in
subsection 1 may not be extended under this subsection to
more than 520 weeks.  Reimbursement to the employer, insurer
or group self-insurer for the payment of all benefits for
additional weeks payable pursuant to this subsection must be
made from the Employment Rehabilitation Fund.
39-A M.R.S.A. § 213.  In 1998, the Board exercised its statutory authority
pursuant to subsection 213(2) and adjusted the impairment threshold from
15% to 11.8%.  See Me. W.C.B. Rule ch. 2, §1.   See Churchill v. Cent.
Aroostook Assoc. for Retarded Citizens, Inc., 1999 ME. 192, ¶ 4, 742 A.2d
475, 477.  
	[¶6]  	Consistent with its statutory obligation under subsection
213(4), the Board ordered an extension of benefits for 52 weeks beginning
January 1, 1999, but not for the year beginning January 1, 1998:
SECTION 2.  Extension of 260-week limitation

1.	The 260-week limitation referenced in 39-A M.R.S.A. Sec.
213(4) shall not be extended for 52 weeks on January 1, 1998
because the frequency of such cases involving the payment of
benefits under Sec. 212 or Sec. 213 is greater than the
national average based on frequency from the 1997 Statistical
Bulletin issued by the National Council on Compensation
Insurance.

2.	The 260-week limitation referenced in 39-A M.R.S.A. Sec.
213(4) shall be extended for 52 weeks on January 1, 1999
because the frequency of such cases involving the payment of
benefits under Sec. 212 or Sec. 213 is no greater than the
national average based on frequency from the 1998 Statistical
Bulletin issued by the National Council on Compensation
Insurance.
Me. W. C. B. Rule, ch. 2., §§ 2.1, 2.2.  
	[¶7]  The Hearing Officer concluded that because the 260-week
limitation had been reached prior to January 1, 1999, Abbott is not
entitled to the extension beginning on January 1, 1999.  Abbott contends
that  section 2.2 of the 1999 Board Rule, extending benefits for 52 weeks
beginning on January 1, 1999, applies retroactively to all injuries on or
after January 1, 1993, regardless of when entitlement to those benefits
had ended.  
	[¶8]  Abbott's interpretation, however, is inconsistent with the plain
language of section 212(4), particularly the word "extension."  See 39-A
M.R.S.A. § 213(4) (Pamph. 1999).  The verb "extend" means to "stretch or
draw out; hence, to lengthen or prolong either in space or time."  Webster's
New Collegiate Dictionary (Merriam 1959).  By ordinary and customary
usage, something that has expired cannot be "extended;" it must be
"revived," "reinstated," or "restored."
	[¶9]  Although we find no discussion of the 52-week extension in the
legislative history, the Hearing Officer's interpretation is consistent with
the apparent purpose of the extension.  The date of the first possible
extension, January 1, 1998, is exactly 260 weeks after January 1, 1993,
the effective date of the Act.  See P.L. 1991, ch. 885, § A-10.  Employees
injured during 1993, the first year of the act, who receive continuous,
uninterrupted benefits from the date of injury, would have been entitled
to an extension of partial benefits for 52 additional weeks on January 1,
1998 if the Board had determined that an extension of benefits was
permissible under the criteria of subsection 213(4).
	[¶10]  No extension of benefits, however, was authorized for the
year 1998, and the "extended" language of the statute does not support a
conclusion that benefits, once expired, would be "revived" "restored," or
"reinstated" in subsequent years.  Moreover, such a result would not
promote finality of workers' compensation determinations, and could lead
to additional litigation when employees whose entitlement to benefits are
"revived" in subsequent years, contend that their incapacity has increased
in the intervening time.{1}
	[¶11]  We also agree with M.S.A.D. #53, that if the Legislature
intended an extension in any given year to apply automatically to all
employees injured during 1993 and thereafter, even those for whom
benefits have expired, it could have used language that clearly so provides. 
Subsection 213(3) provides:
	3.  Dates of injury between January 1, 1993 and January 1,
1998.  An employee whose date of injury is between January 1,
1993 and January 1, 1998, who has not settled the claim
pursuant to section 352 and whose impairment rating is 15%
or less to the body but exceeds the adjusted threshold
established pursuant to subsection 2 on January 1, 1998 is
entitled to compensation for the duration of the disability. 
Reimbursement to the employer, insurer or group self insurer
for the payment of all benefits payable in excess of 260 weeks
of compensation under this subsection must be made from the
Employment Rehabilitation Fund.
39-A M.R.S.A. § 213(3) (Pamph. 1999).  This subsection illustrates that
when the Legislature intends to specifically address that class of
employees injured between January 1, 1993 and January 1, 1998, it knows
how to do so with express language.
	[¶12]  Abbott further contends that she should not be precluded from 
benefitting from the 52-week extension because she was actually 
receiving benefits for total incapacity on January 1, 1999.  
According to Abbott, the Hearing Officer found that
she was partially incapacitated "only as of the date of reinstatement of
Ms. Abbott's benefits on March 5, 1999," and that the Hearing Officer made
no finding concerning whether she was receiving benefits for partial or
total incapacity either on January 1, 1999, or on the 260th week of
benefits in 1998.  Although the Board did not explicitly determine whether
Abbott was partially or totally incapacitated on January 1, 1999, or at the
time she reached her 260th week of benefits in 1998, it makes no
difference.
	[¶13]  Total incapacity benefits are not subject to a 260-week
limitation, see 39-A M.R.S.A. § 212 (Pamph. 1999), but the weeks during
which total benefits are received are included in the 260-week limitation
for partial incapacity benefits: "[A]n employee is not eligible to receive
compensation under this section after the employee has received 260
weeks of compensation under section 212, subsection 1,[{2}] this section or
both. . . ."  39-A M.R.S.A. § 213(1) (Pamph. 1999).
	[¶14]  Pursuant to this statutory scheme, an employee who has
received in excess of 260 weeks of total benefits pursuant to subsection
212(1) and is subsequently determined to be only partially incapacitated,
would not be entitled to any additional benefits for partial incapacity,
because he or she has already received 260 weeks of benefits "under
section 212, subsection 1 [total incapacity], this section [213] or both. . .
."  Id.  Accordingly, on the date that total incapacity became partial, the
Hearing Officer must consider whether the 260-week limitation had
already expired for either total or partial benefits before awarding any
additional benefits for partial incapacity.  Because the 260-week
limitation expired during the preceding year before the Board determined
that the 260-week limitation was to be extended, Abbott is not entitled
to the 52-week extension for the new extension-period beginning January
1, 1999. 
	[¶15]  Abbott also contends that, as long as she was entitled to
receive benefits on January 1, 1999, those benefits could be extended by
the Board's extension rule.  Subsection 213(4) does not refer to an
extension of benefits, it refers to an extension of the 260-week
limitation.{3}  Accordingly, it makes no difference that the employee may
have been entitled to total incapacity benefits by provisional order or
otherwise after the date of the extension, January 1, 1999.  Because the
260-week limitation had been reached prior to January 1, 1999, it could
not be "extended" as of January 1, 1999.
	[¶16]  Finally, Abbott contends that, because employees with greater
than 11.8% permanent impairment are entitled to unlimited partial
benefits, see Churchill, 1999 ME. 192, at ¶ 4, 742 A.2d at 477, it was error
for the Board to order a termination of benefits without first determining
whether she is above the 11.8% threshold.  Abbott, however, does not
contend that she provided any evidence regarding permanent impairment to
support a finding that her permanent impairment exceeded 11.8%.  We note
further that the issue of permanent impairment was expressly raised in
the employer's second notice of discontinuance, and, therefore, Abbott
was on notice that the permanent impairment threshold was at issue.  The
employee cannot fail to present evidence of permanent impairment and
then argue that the Hearing Officer erred in failing to make any findings
concerning permanent impairment.
	The entry is:
Decision of the Workers' Compensation Board
affirmed.
 
Attorney for employee: David A. Chase II, Esq., (orally) Macdonald Chase & Szewczyk 700 Mount Hope Avenue 440 Evergreen Woods Bangor, ME 04401 Attorneys for employer: Anne-Marie Story Hamer, Esq., (orally) Michael P. Friedman, Esq. Rudman & Winchell, LLC P O Box 1401 Bangor, ME 04402-1402
FOOTNOTES******************************** {1} . Pursuant to 39-A M.R.S.A. § 213(4) (Pamph. 1999), the Employment Rehabilitation Fund is responsible for reimbursing employers for partial benefits paid in excess of 260 weeks when an extension is granted. The burden would therefore likely fall to the Fund to litigate contested cases when employees contend that their incapacity has increased after the expiration of 260 weeks. {2} . If Abbott was entitled to total benefits, it is clear that it would have been under subsection 212(1) (Pamph. 1999); subsections 2 and 3 deal with the loss of specific body parts. 39-A M.R.S.A. §§ 212(2), (3) (Pamph. 1999). {3} . The language of subsection 4, extending the limitation, should be compared with the language of subsection 1, extending the payment of benefits: "The Board may in the exercise of its discretion extend the duration of benefit entitlement beyond 260 weeks in cases of extreme financial hardship due to inability to return to gainful employment." 39-A M.R.S.A. § 213(1) (Pamph. 1999) (emphasis added).