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Cust v. University of Maine
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 29
Docket:	WCB-99-766
Argued:	January 9, 2001
Decided:	February 9, 2001

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



CAROLYN CUST v. UNIVERSITY OF MAINE


DANA, J.

	[¶1]  The University of Maine appeals from a decision of a hearing
officer of the Workers' Compensation Board, granting, in part, its petition
for review, but without ordering any reduction in the University's ongoing
liability to Carolyn Cust for her 60% partial incapacity caused by
work-related injuries in 1984 and 1988.  The University sought, in its
petition for review, to reduce its liability for the 1988 injury because the
employee had received 400 weeks of partial benefits for that injury.  See 39
M.R.S.A. § 55-B (Pamph. 1988), repealed and replaced by P.L. 1991,
ch. 885, §§ A-7, A-8 (codified at 39-A M.R.S.A. §§ 213, 214 (Pamph. 2000)). 
While granting the University's petition and acknowledging that it is no
longer required to pay benefits for the 1988 injury, the hearing officer
concluded that Cust is still entitled to unreduced benefits because of the
continuing effects of both injuries.  We disagree, vacate, and remand.
I.
	[¶2]  The facts are not in dispute.  Cust suffered two work-related
injuries while employed by the University, a right arm injury in 1984 and a
left arm injury in 1988.  Pursuant to a previous decree, she was awarded
60% partial incapacity benefits based on the combined effect of the two
injuries.  In a subsequent decree, a hearing officer determined that she
reached maximum medical improvement with respect to the 1988 injury on
January 6, 1989.
	[¶3]  In 1999, the University filed a petition to suspend compensation
benefits for the 1988 injury.  The hearing officer granted the petition,
concluding that because the employee had received 400 weeks of partial
benefits since the date of maximum medical improvement, the University
was entitled to discontinue benefits for the 1988 injury pursuant to former
section 55-B.{1}
	[¶4]  The hearing officer also found that the employee's incapacity
attributable solely to her 1984 right arm injury is 25% of the ongoing 60%
partial incapacity.  The hearing officer also concluded, however, that,
because the 400-week benefit limit had been reached for the 1988 injury,
that injury must be treated as a subsequent nonwork injury for purposes of
determining the University's continued liability for the 1984 injury.  Based
on the combination of the work and nonwork injuries, the hearing officer
ordered the University to continue to pay 60% partial incapacity benefits. 
The hearing officer denied the University's motion for findings of fact and
conclusions of law, and we granted the petition for appellate review
pursuant to 39-A M.R.S.A. § 322 (Pamph. 2000).
II.
	[¶5]  The University contends that the hearing officer erred in
treating the 1988 work injury as a subsequent nonwork injury based on the
fact that the 400-week limitation had been reached and the employer was
no longer liable.  We agree.  At the time of her 1988 injury, Cust was an
"employee" for purposes of the workers' compensation law, see 39 M.R.S.A.
§ 2(5) (1989), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8
(codified at 39-A M.R.S.A. § 102(11) (Pamph. 2000)), and her 1988 injury
was an injury "arising out of and in the course of" employment, see 39
M.R.S.A. § 51(1) (1989), repealed and replaced by P.L. 1991, ch. 885,
§§ A-7, A-8 (codified at 39-A M.R.S.A. § 201(1) (Pamph. 2000)), for which
timely notice of injury was provided, see 39 M.R.S.A. § 63 (1989), repealed
and replaced by P.L. 1991, ch. 885, §§ A-7, A-8 (codified at 39-A M.R.S.A.
§ 301 (Pamph. 2000)), and compensation paid, see 39 M.R.S.A. § 55-B
(Pamph. 1988), repealed by P.L. 1991, ch. 885, § A-7.  The 1988 injury was
a "work injury" for purposes of workers' compensation liability.  We see no
basis for the hearing officer to apply legal standards applicable to nonwork
injuries based on the fact that the 400-week limitation had been reached
and the employer's exposure for partial incapacity benefits has ceased.{2}
	[¶6]  We also agree with the University that the hearing officer's
conclusion runs counter to the policy behind the adoption of the 400-week
limitation.  See P.L. 1987, ch. 559, Emergency Preamble (purpose of the
1987 amendments to reduce workers' compensation liability, generally, to
prevent exodus of workers' compensation insurers from the State);
McDonald v. Rumford Sch. Dist., 609 A.2d 1160, 1161 (Me. 1992).  If
insurers in multiple injury cases are not entitled to a reduction of benefits
upon the expiration of the 400-week period, or if an insurer's liability for
one injury is immediately transferred to another insurer, there is no net
savings for insurers and the statute fails to carry out its purpose to reduce
costs to the system as a whole.
	[¶7]  Moreover, the decisions cited by the employee in support of the
hearing officer's decision are distinguishable.  In Lamonica v. Holmes, 1998
ME 190, ¶ 2, 718 A.2d 182, for example, the employee suffered two work-
related injuries, but failed to give timely notice of the second work-related
injury, and, therefore, recovery was barred for that injury.  We concluded
that, because timely notice was not provided, the second injury was not
compensable, and, therefore, should be treated as a nonwork injury.  Id. ¶ 3,
718 A.2d at 183.{3}  The present case is distinguishable, because in this case,
timely notice was provided and the 1988 injury was compensable.
	[¶8]  Similarly, in Harding v. Sheridan D. Smith, Inc., 647 A.2d 1193
(Me. 1994), the employee suffered two work-related injuries, but the second
was while self-employed.  As a self-employed employee, the employee was
free to elect to be covered by the Act and, in that case, had elected not to be
covered.  Id.  We held that the second injury, exempt from the Act, should
be treated as a nonwork injury.  Id. at 1194.  The present case is, again,
distinguishable because the second injury, the 1988 injury, was plainly a
compensable work-related injury.
	[¶9]  In Harding we also relied, in part, on the purpose of the Act to
provide a full recovery to employees for their injuries.  Id. at 1194.  In this
case, however, the employee has received all of the partial benefits that she
is entitled to receive for her 1988 injury, and she is, therefore, not deprived
of a "full recovery."  Accordingly, there is no support either in the language
or policy of the Act, or in our decisions, for the hearing officer to treat the
employee's 1988 injury as a nonwork injury following her receipt of 400
weeks of benefits pursuant to former section 55-B.
III.
	[¶10]  Because we conclude that the hearing officer erred in treating
the 1988 injury as a nonwork injury, we next address the issue of the
employer's ongoing liability for the 1984 injury.  Subsection 201(6)
provides:
	6. Prior work-related injuries.  If an employee suffers a
work-related injury that aggravates, accelerates or combines
with the effects of a work-related injury that occurred prior to
January 1, 1993 for which compensation is still payable under
the law in effect on the date of that prior injury, the employee's
rights and benefits for the portion of the resulting disability that
is attributable to the prior injury must be determined by the law
in effect at the time of the prior injury.
39-A M.R.S.A. § 201(6) (Pamph. 2000).{4}  Subsection 201(6) authorizes the
hearing officer to determine "the portion of the resulting disability that is
attributable" to each injury and to calculate the employer's liability
according to the law at the time of each injury.  Id.
	[¶11]  Cust contends that it is implicit in subsection 201(6)'s
requirement that one injury must precede January 1, 1993, that the other
injury must occur after January 1, 1993.  We disagree.  We have consistently
applied the implementing statute of Title 39-A, § A-10, to determine
whether a provision of the Act applies retroactively to pre-1993 injuries.  
See, e.g., Beaulieu v. Maine Med. Ctr., 675 A.2d 110, 111 (Me. 1996); Curtis
v. Nat'l Sea Prods., 657 A.2d 320, 321, n.2 (Me. 1995); Baker v. Klein, 655
A.2d 367, 368, n.2 (Me. 1995); Morgan-Leland v. Univ. of Maine, 632 A.2d
748, 748-49 (Me. 1993).  Section A-10 provides:
This Part applies to all matters in which an injury occurs on or
after January 1, 1993.  So as not to alter benefits for injuries
incurred before January 1, 1993, for matters in which the injury
occurred prior to that date, all provisions of this Act apply,
except that Maine Revised Statutes Title 39-A, sections 211,
212, 213, 214, 215, 221, 306, and 325 do not apply.  With
regard to matters in which the injury occurred prior to January
1, 1993 the applicable provisions of the former Title 39 apply in
place of Title 39-A, sections 211, 212, 213, 214, 215, 221, 306,
and 325. . . .
P.L. 1991, ch. 885, § A-10 (effective January 1, 1993).  Because section 201
is not listed in section A-10 as having purely prospective effect, section 201
may be applied to injuries preceding the effective date of title 39-A.  As we
have stated, "[a] clearer statement of legislative intent . . . is hard to
imagine."  Morgan-Leland, 632 A.2d at 749.
	[¶12]  The purpose of subsection 201(6) was to preserve the law in
effect at the time of the injury for injuries occurring prior to the effective
date of title 39-A.  See L.D. 1318, Statement of Fact (118th Legis. 1998).   By
its express language, subsection 201(6) is applicable when an injury
"aggravates, accelerates or combines with the effects of a work-related
injury that occurred prior to January 1, 1993 . . . ."  39-A M.R.S.A. § 201(6). 
The plain language places no limitation on the date of the subsequent injury.
	[¶13]  Moreover, even if we were to agree that subsection 201(6) is
inapplicable, it would be unavailing to the employee.  Subsection 201(6) was
enacted in 1998 with the purpose of changing the rule of law established in
Ray v. Carland Constr., Inc., 1997 ME 206, ¶ 6, 703 A.2d 648, 650-51.  In
Ray, 1997 ME 206, ¶¶ 5-6, 703 A.2d at 650, we relied on an earlier
decision, McDonald v. Rumford Sch. Dist., 609 A.2d 1160, 1163 (Me. 1992),
to hold that, when an employee suffers two work-related injuries that
combine to produce a single incapacitating condition, the employer's entire
liability is governed by the law at the time of the subsequent injury.
	[¶14]  As the employee notes, the rule we enunciated in Ray was
expressly rejected by the Legislature in subsection 201(6).  See P.L. 1998,
ch. 647.{5}  Were we to conclude that subsection 201(6) was inapplicable to
the present case, however, the outcome would likely be governed by
pre-1993 law as articulated in McDonald, 609 A.2d at 1163.  In that event,
we would have to conclude that Cust's entire liability is governed by the law
relating to the later injury, and, therefore, following the 400-week period of
partial benefits, the employer would be entitled to suspend all benefits.
	[¶15]  Because we conclude that the Legislature did not intend to
restrict the application of subsection 201(6) to cases in which the
subsequent injury occurs after January 1, 1993, subsection 201(6) applies,
and the University is entitled to suspend benefits for that portion of the
employee's incapacity that is attributable to the 1988 injury.  Because the
hearing officer found that the employee's 1984 right arm injury accounts for
25% of her ongoing 60% incapacity, the hearing officer should enter an
order reducing the University's continuing liability to 15% (0.25 x 0.60 =
0.15 or 15%).
	The entry is:
The decision of the Workers' Compensation
Board is vacated.  Remanded to the Workers'
Compensation Board for further proceedings
consistent with this opinion.

Attorney for employee: Kevin M. Noonan, Esq., (orally) McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A. P O Box 5000 Topsham, ME 04086-5000 Attorney for employer: Peter M. Weatherbee, Esq., (orally) Weatherbee, Woodcock, Burlock & Woodcock, P.A. P O Box 1127 Bangor, ME 04402-1127
FOOTNOTES******************************** {1} . Former 39 M.R.S.A. § 55-B, applicable for 1988 injuries, provides: While the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to 2/3 the difference, due to the injury, between his average gross weekly wages, earnings or salary before the injury and the weekly wages, earnings or salary which he is able to earn after the injury, but not more than the maximum benefit under section 53-B. Payments under this section shall not continue for longer than 400 weeks after maximum medical improvement. This section applies only to employees injured on or after the effective date of this section. P.L. 1987, ch. 559, § B, (codified at 39 M.R.S.A. § 55-B (Pamph. 1988)) (effective November 20, 1987) (emphasis added), repealed by P.L. 1991, ch. 885, § A-7. {2} . The University may still be liable for medical benefits, notwithstanding the fact that its liability for partial incapacity has ended. See 39 M.R.S.A. § 206 (Pamph. 2000). {3} . We stated: The basic entitlement to workers' compensation benefits under the Act, 39-A M.R.S.A. § 201(1) [Supp. 2000], expressly defines a compensable injury with reference to the notice-of-injury provision set forth in 39-A M.R.S.A. § 301 [Pamph. 2000]. For purposes of the Act, an injury is not 'work-related' if the employee does not provide notice of the injury. Because this appeal involves a work-injury and a subsequent nonwork-injury, the controlling statutory provision is 39-A M.R.S.A. § 201(5) [Pamph. 2000]. Id. ¶ 3, 718 A.2d at 183. {4} . The University's petitions were filed in August 1998 and, therefore, subsection 201(6), which became effective on June 30, 1998, is applicable. See P.L. 1998, ch. 647 (effective June 30, 1998). {5} . The statement of fact provides: This amendment replaces the bill and is the majority report of the Joint Standing Committee on Labor. It overrules the Maine Supreme Judicial Court's decision in Ray v. Carland Construction, Inc. and Pelletier v. Maine Medical Center, 703 A.2d 648 (Me. 1997), in which the court ignored the legislative directive of Public Law 1991, chapter 885, Part A, section 10 prohibiting retroactive application of the Workers' Compensation Act of 1992. L.D. 1318, Statement of Fact (118th Legis. 1998).