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Chmielewski v. J.C. Management
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 160
Docket:	WCB-00-510
Argued:	September 13, 2001
Decided:	November 28, 2001

Panel:WATHEN, C.J.,{*} and CLIFFORD,  DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.




FREDERICK H. CHMIELEWSKI v . J.C. MANAGEMENT


DANA, J.

	[¶1]  J.C. Management appeals from a decision of a hearing officer of
the Workers' Compensation Board granting Frederick H. Chmielewski an
inflation adjustment for his 1992 injury.  According to the law applicable to a
1992 injury, an employee is entitled to an inflation adjustment for total, but
not partial, incapacity benefits.  See 39 M.R.S.A. §§ 54-B, 55-B (Supp. 1992),
repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8 (codified at 39-A
M.R.S.A. §§ 212, 213, 214 (2001)).  Purporting to correct a "clerical
mistake" in a 1996 decree, 39-A M.R.S.A. § 318 (2001), the hearing officer
found that Chmielewski was entitled to total incapacity benefits and,
therefore, entitled to the inflation adjustment.  We vacate the decision of the
hearing officer.
	[¶2]  There is no dispute that Chmielewski suffered a work-related
gradual back injury in 1992, while employed by JCM.  JCM voluntarily
accepted liability for the injury and paid short-term total incapacity benefits. 
In 1994 JCM filed a petition for review with the Board, contending that
Chmielewski's incapacity had diminished or ended.  In 1996 a hearing
officer denied JCM's petition, stating, in part: 
	I find, based on the employee's medical condition and
restrictions, in light of his age, education, demeanor, training
skills and work experience that he continues to be totally
incapacitated.  This incapacity is due to a combination of the
work-related injury and the employee's intrinsic limitations
rather than the state of the labor market in his community.  The
PETITION FOR REVIEW OF INCAPACITY is denied and the
insurer ordered to continue payment commensurate with 100%
partial incapacity benefits.
	[¶3]  In 1999 Chmielewski sought an inflation adjustment "pursuant to
former Section 54-B [total incapacity] of the Act."  Concluding that the
apparent award of "100% partial incapacity benefits" in the 1996 decree
was a "clerical mistake" pursuant to 39-A M.R.S.A. § 318,{1} the hearing
officer agreed and stated:
It is apparent . . . that the hearing officer [in 1996] found that
the employee was unable to do any type of remunerative work. 
She then inconsistently finds that the employee is entitled to
100 percent partial incapacity benefits.  The standard to be
applied is that if an employee is unable to find work because of a
combination of his physical incapacity caused by the injury and
educational and vocational background that he is entitled to . . .
benefits for total incapacity . . . .  Title 39 M.R.S.A. § 54-B(1). 
See also Adams v. Mt. Blue Health Ctr., [1999 ME 105, ¶ 4,] 735
A.2d 478, 479.[{2}] 
	[¶4]  The hearing officer rejected JCM's argument that the award of
100% partial incapacity is res judicata, stating:
[The 1996 decision] is inconsistent and is ambiguous.  The
ambiguous paragraph . . . [is] where the hearing officer finds all
the necessary conditions for an award of total incapacity under
Section 54-B, but nonetheless indicates that she is awarding
payments commensurate with 100 percent partial incapacity
benefits.  This obviously makes no sense if one is to read the
whole paragraph.  [This] is not a case where the prior hearing
officer found that the employee had a partial work capacity, but
was able to find no work in the community or, given the date of
this statute, within the state of Maine as a whole which would
justify an award of 100 percent partial incapacity benefits.  In
this particular case, the finding is that the employee is totally
disabled from a physical condition and a locational [sic]
standpoint regardless of any work search [he] may or may not
have done.  This entitles the employee to total benefits under
former Section 54-B.
	
	Given this ambiguity, it is apparent that the prior hearing
officer obviously made a clerical error when she drafted her
decision.  Accordingly, the undersigned grants the Petition for
Award of Inflation Adjustments . . . .
We granted JCM's petition for appellate review pursuant to 39-A M.R.S.A.
§ 322 (2001).
	[¶5]  The purported ambiguity in the 1996 decision derives from the
former hearing officer's conclusion, on the one hand, that the employee
"continues to be totally incapacitated," and, on the other hand, the
unmistakable language that the "insurer is ordered to continue payment
commensurate with 100% partial incapacity benefits."  
	[¶6]  While we have previously recognized that the term "total
incapacity," by itself, is ambiguous and may refer to either total or 100%
partial incapacity, see, e.g., Lamphier v. Bath Iron Works Corp., 2000 ME
121, ¶ 6, 755 A.2d 489, 492; Toothaker v. Lauri, Inc., 631 A.2d 1241, 1243
(Me. 1993), we have never interpreted the phrase "100% partial
incapacity," to mean anything other than partial incapacity pursuant to the
incapacity statute.  The term "100% partial incapacity" is much more
precise than "total incapacity."  Indeed, it is difficult to imagine how a
hearing officer could mistakenly refer to total incapacity pursuant to section
54-B as "100% partial incapacity."  Accordingly, we find no ambiguity in the
1996 decree awarding 100% partial incapacity benefits and, therefore, we
must conclude that the hearing officer's decision to "clarify" that
"ambiguity" is erroneous.{3}
	[¶7]  Even if the hearing officer were correct that the decision to
award 100% partial incapacity benefits in 1996 was legally incorrect in light
of findings suggesting total incapacity, see, e.g., Lamphier, 2000 ME 121,
¶¶ 9-10, 755 A.2d at 493-94; Adams, 1999 ME 105, ¶ 17, 735 A.2d at 483,
such a legal error does not constitute a "clerical mistake," or an "oversight"
or "omission," for purposes of section 318.  See Dunphe v.  O'Connor, 1997
ME 147, 697 A.2d 421.{4}  
	[¶8]  Faced with an unambiguous award of 100% partial incapacity
benefits in the 1996 decree, it was incumbent upon the employee to bring a
timely appeal from that decision.  Because Chmielewski was awarded partial
incapacity benefits in 1996, and there is no finding that his incapacity had
increased in the intervening period, we must conclude that Chmielewski is
not entitled to an inflation adjustment pursuant to former section 54-B.
	The entry is:
Decision of the hearing officer vacated.  Remanded
to the Workers' Compensation Board for further
proceedings consistent with this opinion.
 
Attorney for employee: William J. Smith, Esq. (orally) P O Box 7 Van Buren, ME 04785 Attorneys for employer: Anne-Marie L. Storey (orally) Paul H. Sighinolfi, Esq. Rudman & Winchell, LLC P O Box 1401 Bangor, ME 04402-1401
FOOTNOTES******************************** {*} Wathen, C.J., sat at oral argument and participated in the initial conference, but resigned before this opinion was adopted. {1} . Section 318 provides, in pertinent part: . . . . Clerical mistakes in decrees, orders or other parts of the record and errors arising from oversight or omission may be corrected by the board at any time of its own initiative, at the request of the hearing officer or at the motion of any party and after notice to the parties. During the pendency of an appeal, these mistakes may be corrected before the appeal is docketed in the Law Court and thereafter, while the appeal is pending, maybe corrected with leave of the Court. 39-A M.R.S.A. § 318 (2001). {2} . In Adams, we held that partially incapacitated employees may be entitled to total incapacity benefits pursuant to the total incapacity statute only if the employee can establish (1) the unavailability of work within the employee's local community, and (2) the physical inability to perform full-time work in the statewide labor market, regardless of the availability of that work. Adams v. Mt. Blue Health Ctr., 1999 ME 105, ¶ 17, 735 A.2d 478, 483; see also Lamphier v. Bath Iron Works Corp., 2000 ME 121, ¶¶ 9-10, 755 A.2d 489, 493-94. {3} . Because we conclude that there was no ambiguity or "clerical error" in the 1996 decree, it is not necessary for us to address any further issues that could be raised by these facts, e.g., the authority of a hearing officer to correct a clerical error, oversight or omission, of a previous hearing officer after the expiration of the appeal period. {4} . In Dunphe v. O'Connor, 1997 ME 147, ¶ 6, 697 A.2d 421, 423, the hearing officer apportioned liability between two injuries and only the earlier injury was subject to an inflation adjustment. Id. ¶ 2, 697 A.2d at 422. The hearing officer stated in the opinion: "No cost of living adjustments are payable pursuant to McDonald [v. Rumford Sch. Dist., 609 A.2d 1160, 1161 (Me. 1992)]." No appeal was taken from that decision. Dunphe, 1997 ME 147, ¶ 3, 697 A.2d at 422-23. Nearly five months later, the hearing officer, responding to a letter from one of the employers, issued a new decision purporting to be a "clarification," and ordering the other employer to pay an inflation adjustment. Id. We vacated the latter "clarification" decision, concluding that, because the original decision unambiguously provided that no inflation adjustments were payable, there was "no reasonable basis for finding a clerical mistake." Id. ¶ 6, 697 A.2d at 423.