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Dufour v. Internal Medicine Assoc.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 169
Docket: 	WCB-97-429
Argued:	June 9, 1998
Decided:	July 7, 1998




	[¶1]  Internal Medicine Associates (IMA) appeals from the decision of
the Workers' Compensation Board granting Jeanette B. Dufour's petition for
award related to a 1990 injury.  IMA contends that, because Dufour had
returned to her pre-injury employment without a loss of earnings, and
because she voluntarily quit her post-injury employment in 1994, any
resulting loss of earning capacity is due to her decision to quit and not due
to her work-related injury.{1}  We disagree and affirm the decision.
	[¶2]  Dufour suffered a work-related carpal tunnel injury on September
10, 1990, while working as an office manager for IMA.  She returned to
work without a reduction of earnings, and was able to comply with her
doctor's recommendation to reduce typing and keyboard work by delegating
data entry assignments to other employees.  Dufour left her employment in
1994 for reasons unrelated to her injury.  Dufour found employment at
Mechanical Systems Engineers roughly one week after leaving IMA.  Eight
months later, she quit her position with Mechanical Systems Engineers in
order to accept a position at Central Maine Orthopedics.  Dufour was
terminated from this latter employment after a month.  In February 1995,
she obtained temporary employment through Bonney Personnel performing
data entry work, during which she suffered a significant aggravation of her
1990 work-injury. 
	[¶3]  Dufour filed a petition for award against IMA for the September
10, 1990 injury.  In 1997, the Board granted Dufour's petition, finding that: 
. . . Dufour left her job with [IMA] as of January 15, 1994 for
reasons unrelated to her work injury.  At the time she left her
job, she was physically capable of performing it.  I believe her
testimony that she periodically suffered symptoms in her hands
and wrists between the date of injury and the time she left, but I
note she never lost time from work.
The Board also found that, although Dufour's aggravation injury in 1995
resulted in a short-term period of increased incapacity, "[a]s of May 9, 1995,
she was back to her baseline level of symptoms" that she had experienced
prior to her 1995 aggravation injury.{2}  The Board concluded further that
Dufour's earnings of $400 a week at Mechanical Engineering Systems
accurately reflects her current post-injury earning capacity.  The Board
awarded short-term total and fifty percent continuing partial incapacity
benefits based on the difference between her 1990 average weekly wage and
her post-injury earning capacity of $400 a week.{3}  We granted IMA's petition
for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1997).
	[¶4]  IMA does not dispute that Dufour's entitlement to partial benefits
for her 1990 injury is governed by former section 55-B, which provided:
"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 the employee's" pre-injury
earnings and what the employee "is able to earn after the injury. . . ."  39
M.R.S.A. § 55-B (Supp. 1990) (effective for injuries occurring after
September 30, 1989 and before October 17, 1991), repealed and replaced
by P.L. 1991, ch. 615, § D-7 (emphasis added).  IMA contends that, because
Dufour voluntarily quit her employment, any loss of earnings was not "due to
the injury," but due to her own voluntary decision to quit.  IMA relies on
Coty v. Town of Millinocket, 393 A.2d 156, 157 (Me. 1978).  In Coty, we
affirmed the denial of the employee's petition for further compensation,
based on the finding that his unsuccessful work-search after being laid off
from his post-injury job was the result of a general economic downturn, and
not due to the employee's incapacity.  Id.; see also 1C A. Larson, The Law of
Workmen's Compensation, § 57.63, at 10-492.11-12 (1993) ("[l]oss of
employment should not be deemed due to disability if a worker without the
disability would lose employment or suffer a reduction in earnings under the
same economic conditions").  
	[¶5]  We have stated, however, that "evidence of actual wages is a
useful indicator [of post-injury earning capacity], not a talisman" and "the
mere fact, standing alone, that the employee is earning the same after the
injury as before will not bar an award for partial disability."  Severy v. S.D.
Warren Co., 402 A.2d 53, 55 (Me. 1979); see also Hardy v. Hardy's Trailer
Sales, Inc., 448 A.2d 895, 898-99 (Me. 1982); Mailman v. Colonial Acres
Nursing Home, 420 A.2d 217, 220-21 (Me. 1980); 1C A. Larson, The Law of
Workmen's Compensation, § 57.21(c) (1993).  The Board found in this case
that, although Dufour was able to return to her pre-injury employment with
IMA at her pre-injury wage, those earnings did not reflect her true capacity
to earn after her injury.  Based on competent evidence, the Board concluded
that her actual ability to earn for this period is best reflected by her earnings
of $400 a week at Mechanical Engineering Systems after leaving IMA.  This
is a factual determination which we will overturn only if the evidence
compels otherwise.  See Smith v. Great N. Paper, Inc., 636 A.2d 438, 439
(Me. 1994).  In Coty, 393 A.2d at 157, by contrast, the employee provided
no evidence of a diminished earning capacity.  See also Mailman, 420 A.2d at
	[¶6] 	IMA contends, however, that even if $400 a week were all that
Dufour is able to earn in the general labor market, Dufour suffered no loss of
earning capacity because IMA had accommodated her injury and she was
"able to earn" her pre-injury wage.  While the Board could have found that
Dufour was able to earn a wage reflecting the wage she was earning at the
time she left her employment with IMA, it found other facts more
compelling and concluded that her current earning capacity is less.  The
statute does not compel the Board to set her current earning capacity at the
amount she was earning when she left IMA.
	[¶7]  IMA contends that its interpretation is consistent with the
purpose of the Act to encourage employers to accommodate their
employees' injuries and return them to employment at or near their pre-
injury wage.  Although such a result would encourage employers to
accommodate injured employees and return them to work, it could also have
a chilling effect on an employee's willingness to return to work in a specially
adapted position.  We find no support in former section 55-B for IMA's
contention, and therefore affirm the decision of the Board.{4}    
	The entry is:	
Decision of the Workers' Compensation Board

Attorney for employee: Jeffrey Neil Young, Esq., (orally) McTeague, Higbee, MacAdam, Case Watson & Cohen P O Box 5000 Topsham, ME 04086-5000 Attorney for employer: Michael Richards, Esq., (orally) Troubh, Heisler & Piampiano, P.A. P O Box 9711 Portland, ME 04104-5011
FOOTNOTES******************************** {1} Because Dufour's injury occurred prior to January 1, 1993, IMA concedes that 39-A M.R.S.A. § 214 (Supp. 1997) does not apply. P.L. 1991, ch. 885, § A-10. {2} IMA filed a petition for award against Bonney Personnel for Dufour's 1995 injury. IMA's petition was resolved by a consent decree in 1996. {3} The Board did not award incapacity benefits for the period between her termination of employment with IMA and her aggravation injury in 1995. Dufour has not appealed from that decision. {4} IMA's additional contention that it is entitled to terminate benefits pursuant to 39-A M.R.S.A. § 218(5) (Supp. 1997), even in the absence of a petition for reinstatement, was recently rejected by our decision in Thompson v. Claw Island Foods, 1998 ME 101, ¶¶ 6, 16-19, A.2d .