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Adams v. Mt. Blue Health Ctr.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 105
Docket:	WCB-98-373
Argued:	May 4, 1999	
Decided:	July 7, 1999

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

FLOYD ADAMS JR.

 v. 

MT. BLUE HEALTH CENTER

and 

COMMERCIAL UNION INSURANCE COMPANY

DANA, J.

	[¶1]  The employee, Floyd Adams Jr., appeals from a decision of the
Workers' Compensation Board denying his petition for an inflation
adjustment.  Pursuant to the law at the time of his 1990 injury, employees
were entitled to an inflation adjustment for total, but not partial, incapacity
benefits.  39 M.R.S.A. §§ 54-B, 55-B (1989), repealed by the Maine Workers'
Compensation Act of 1992, P.L. 1991, ch. 885, § A-7.  The issue is whether
Adams is receiving voluntary payments of benefits for total or 100% partial
incapacity.  The Board concluded that, notwithstanding the unavailability of
work within his local community and his inability to perform full-time work
in the statewide labor market, Adams has a part-time work capacity and is
therefore entitled to partial, and not total, incapacity benefits.  We conclude
that the Board did not apply the correct legal standard for the employee's
1990 date of injury, and, accordingly, vacate.

I.  FACTS

	[¶2]  Adams suffered a work-related back injury on November 8, 1990,
while employed by Mt. Blue Health Center.  Except for a brief, unsuccessful
return to light-duty employment in 1991, Adams has received the equivalent
of total incapacity benefits since the date of his injury.  Adams filed a
petition for award of an inflation adjustment in October 1996, contending
that he has received total incapacity benefits pursuant to former section
54-B and is, therefore, entitled to an inflation adjustment.  The Board
denied the petition and we granted the employee's petition for appellate
review pursuant to 39-A M.R.S.A. § 322 (Supp. 1998).

II.  ANALYSIS

	[¶3]  At the time of Adams' 1990 injury, former section 54-B
provided, 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, . . . .

	1.  Annual adjustment.  Beginning on the 3rd anniversary
of the injury, weekly compensation under this section shall be
adjusted annually. . . .

	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, repealed by P.L. 1991, ch. 885, § A-7 (emphasis added).
	[¶4]  The term "total incapacity" has never been defined in the Act. 
Our opinions prior to 1987 use the term "total incapacity" to mean (1) a
total physical incapacity to perform any work, either part-time or full-time,
or (2) the combination of a partial physical incapacity attributable to that
injury and the absence of any employment opportunity in the employee's
local community.  See Curtis v. Bridge Constr. Corp., 428 A.2d 62, 64 (Me.
1981); Ibbitson v. Sheridan Corp., 422 A.2d 1005, 1008-11 (Me. 1980);
Pelchat v. Portland Box Co., 155 Me. 226, 229-30, 153 A.2d 615, 617-18
(1959); Connelly's Case, 122 Me. 289, 292-93, 119 A. 664, 666 (Me. 1923);
Ray's Case, 122 Me. 108, 110-11, 119 A. 191, 191-92  (1922).
	[¶5]  The method of establishing entitlement to total or 100%
incapacity benefits in cases involving employees with a partial physical
incapacity is commonly known as the "work-search" doctrine.  See Tripp v.
Philips Elmet Corp., 676 A.2d 927, 928-29 (Me. 1996).  As we have stated,
the "work-search" rule is not a particularly apt name for the doctrine
because the failure to perform a work-search has never constituted ground
for completely denying benefits; the doctrine is only intended to determine
an employee's entitlement to total or 100% benefits.  Id.  Moreover, the
employee is not required to provide evidence of a "work-search" per se, to
establish the unavailability of work in the local community.  Id.  We have held
that any competent evidence, e.g., labor market surveys, may be used to
establish the unavailability of work.  Id.; see, e.g., Poitras v. R.E. Glidden Body
Shop, 430 A.2d 1113, 1120 (Me. 1981); Warren v. Vinalhaven Light &
Power Co., 424 A.2d 711, 714-15 (Me. 1981).
	[¶6]  Prior to 1987, it had not been necessary to distinguish between
total and 100% partial incapacity, because, as a practical matter, there was
no real difference between these benefits.  After 1987, with the enactment
of the durational limit to partial incapacity benefits (i.e., 400 weeks) and the
repeal of the inflation adjustment for partial benefits, it became necessary to
determine whether an employee's maximum incapacity benefits fell within
the total incapacity statute, section 54-B, or the partial incapacity statute,
section 55-B.  See P.L. 1987, ch. 559, Pt. B, § 30, repealed by P.L. 1991, ch.
885, § A-7.{1}
	[¶7]  In this case, the Board has interpreted section 54-B to apply only
to cases of total physical incapacity.  Pursuant to the Board's interpretation,
when a partially incapacitated employee establishes the unavailability of any
employment in the local community due to the injury, the employee is
entitled to 100% partial incapacity pursuant to the partial incapacity statute,
39 M.R.S.A. § 55-B, repealed by P.L. 1991, ch. 885, § A-7.  Because Adams
demonstrated a physical work capacity to perform part-time work, the
Board concluded that he was not entitled to total incapacity benefits
pursuant to section 54-B, but because he had established the unavailability of
any work within his local community, he was entitled to 100% partial
incapacity benefits pursuant to section 55-B.
	[¶8]  Relying on the limitation in subsection 54-B(2), however, Adams
contends that partially incapacitated employees, even those actually earning
part-time post-injury wages, may be entitled to total incapacity benefits
whenever they are unable to perform full-time remunerative work in the
statewide labor market.  The Board rejected this interpretation, stating:  "By
this logic, an employee who is [. . . performing] a significant amount of
part-time [work] would be entitled to total workers' compensation benefits
pursuant to former §54-B."  We agree with the Board that the actual receipt
of post-injury wages precludes an award of total incapacity benefits.  See
Dunkin Donuts of America, Inc. v. Watson, 366 A.2d 1121, 1126 (Me. 1976)
(no entitlement to total benefits during period of part-time employment). 
The word "Limitation" in the heading suggests that subsection 2 was not
intended to provide an overall definition of total incapacity, but to limit an
employee's entitlement to total incapacity benefits after the initial
determination of total incapacity has been made.
	[¶9]  Although the Board rejected the employee's interpretation, the
Board did not supply an independent meaning to the limitation provision of
subsection 54-B(2).   It is axiomatic that no phrase in a statute should be
interpreted as surplusage when a reasonable interpretation supplying
meaning to that phrase is possible.  See Labbe v. Nissen Corp., 404 A.2d 564,
567 (Me. 1979).  We conclude that the statutory language is sufficiently
ambiguous to justify recourse to the legislative history to arrive at the
legislative intent.  See Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360
(Me. 1994).

II.  LEGISLATIVE HISTORY

A.  The 1987 Amendments
	[¶10]  Subsection 54-B(2) was enacted in 1987.  See P.L. 1987, ch.
559, Pt. B, § 27.  As we have stated, the 1987 amendments were part of an
emergency effort to reduce workers' compensation costs in response to a
threatened exodus of insurers.  See McDonald v. Rumford School Dist., 609
A.2d 1160, 1161 (Me. 1992).  In order to reduce the cost of partial
incapacity benefits, the most costly benefit in the workers' compensation
system at that time, former section 55-B was amended to remove annual
inflation adjustments of partial benefits and to require a durational limit of
400 weeks to the receipt of partial benefits.  See P.L. 1987, ch. 559, Pt. B,
§ 30.
	[¶11]  The Legislature in 1987 also considered whether to hold
employees to a statewide labor market search.  See 3 Legis. Rec. 26 (2nd
Spec. Sess. 1987) (Statement of Rep. Ruhlin).   Our decisions prior to 1987
make clear that, pursuant to the work-search rule, partially-incapacitated
employees seeking total benefits were only required to show a lack of
available employment in the employee's local community.  See Ibbitson, 422
A.2d at 1011.  After considering several proposed amendments,{2} the
Legislature adopted L.D. 1929 containing the subsection 54-B(2)
"limitation" language at issue in this appeal.  P.L. 1987, ch. 559, Pt. B, § 17;
L.D. 1929 (113th Legis. 1987).
	[¶12]  The purpose of the limitation in subsection 54-B(2) was to limit
total incapacity benefits to a subset of those employees formerly treated as
totally incapacitated pursuant to the "work-search" rule.  As the Statement
of Fact attached to the L.D. states:

The definition of a totally incapacitated worker has been
restricted so that injured employees who are unable to perform
any full-time remunerative work in the State's ordinary labor
market will be classed as totally incapacitated; this standard was
adapted from the first phase of the incapacity test outlined by
the Law Court in Ibbitson[, 422 A,2d 1005].

L.D. 1929, Statement of Fact (113th Legis. 1987).  Reference in the
Statement of Fact to our decision in Ibbitson, 422 A.2d 1005, in which we
outlined the work-search rule in a case involving an employee with a partial
physical incapacity, reflects a legislative intent that the term "total
incapacity" include the "work-search" rule cases when a partially
incapacitated person is unemployed due to the unavailability of employment
resulting from a work injury.
	[¶13]  The rationale for subsection 54-B(2) is grounded in the
recognition that, after the exhaustion of the maximum 400 weeks of partial
benefits, a partially incapacitated employee will often be required by
economic circumstances, i.e., the loss of benefits, to travel outside the local
community to obtain employment.  Statements by the legislators suggest
that, while it might be unfair for an employee to be required to travel
outside his or her local community for the prospect of a part-time job, it is
less unfair if there is a prospect of full-time employment within that
employee's physical capabilities somewhere in the state.  As one Senator
remarked:

If a person is classified as permanent partial you are not saying
you have to move to another part of the state or lose your
benefits, you are saying that for the next four hundred weeks you
will receive your disability benefits and during that time, we
[have] provided for you an opportunity to be re-trained and get
back into the workplace. . . .  What we have actually done is
made it very clear that if you can work in a full-time job, you are
partially disabled, or permanent partial, you will have four
hundred weeks, we will give you training and you will be sent
back to work.  If you can't go to a full-time job, you are total[ly]
incapacit[ated] and that is not unfair at all.

3 Legis. Rec. 49 (2nd Spec. Sess. 1987) (Statement of Sen. Dutremble).  See
also 3 Legis. Rec. 26 (2nd Spec. Sess. 1987) (Statements of Rep. Ruhlin and
Rep. Willey).
	[¶14]  Section 54-B(2), however, 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 ordinary competitive statewide labor
market.  As Senator Andrews remarked:

The new definition that we have before us asks is that [injured
worker] capable of full-time work, any full-time work in the
State of Maine.  Anywhere in the State of Maine regardless if the
job is available or not.  You could be way up in the Maine woods
hurt, severely hurt and find that there is a job that you might be
able to do on the other end of the State and even if that job isn't
available to you, even if there is no way you would be able to take
that job because there are too many people waiting in line to fill
that job or the job is in a location that is totally inaccessible to
you, all there has to be is a job out there that you could do
whether it is available or not.  If that is the case, you are not
considered totally disabled under this legislation. . . .

3 Legis. Rec. 46 (2nd Spec. Sess. 1987) (Statement of Sen. Andrews).
B.  The 1989 Amendments
	[¶15]  The partial incapacity statute, section 55-B, was amended in
1989 to add the following provision:

	For purposes of determining an injured employee's degree
of incapacity under this section, 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%.

39 M.R.S.A. § 55-B (Supp. 1989), amended by P.L. 1991, ch. 615, § D-7,
repealed by P.L. 1991, ch. 885, § A-7.  As we have previously stated, the
purpose of the second sentence of the 1989 amendment was to clarify that
the requirement for establishing 100% partial incapacity is a
community-wide standard, not a statewide standard.  Dumond v. Aroostook
Van Lines, 670 A.2d 939, 941-42, n.2 (Me. 1996); L.D. 924, Statement of
Fact (114th Legis. 1989).  
	[¶16]  The Statement of Fact suggests that the 1989 amendment was
not intended to alter the rule for determining entitlement to total incapacity
pursuant to section 54-B.  The second sentence of the amendment was only
intended to clarify the work-search rule in the limited number of cases that
do not fall under section 54-B, i.e., those partially incapacitated employees
who cannot find part-time work in the local community, but who are able to
perform full-time work within the statewide labor market.  The Statement
of Fact attached to the 1989 amendment provides, in pertinent part:

This amendment does not alter in any way the current
'statewide labor market' standard used to classify an injured
employee as totally or partially incapacitated, but merely clarifies
that this restriction upon an injured employee's ability to claim
benefits under the total incapacity section of the Workers'
Compensation Act was never intended to require an employee to
undertake a statewide work search for purposes of establishing
the employee's degree of incapacity under the partial incapacity
provision of the Workers' Compensation Act.  The Maine Revised
Statutes, Title 39, section 54-B, subsection 2, simply requires
that, to be classed as totally incapacitated, an injured employee
must demonstrate an inability to perform any full-time
remunerative work available in an ordinary competitive labor
market in the State.  An employee who fails to demonstrate this
fact may still receive benefits for partial incapacity under Title
39, section 55-B.

	In determining the degree of incapacity for the purposes
of calculating benefits due to an injured employee under Title
39, section 55-B, it was intended that the Workers'
Compensation Commission continue to evaluate an injured
employee's incapacity under the test stated by the Law Court in
Ibbitson[, 422 A.2d 1005].  This amendment clarifies that the
Ibbitson test still applies in the case of partial incapacity and
that the degree of incapacity is determined on a local, not
statewide, standard.  An injured employee who is capable of
performing work found in the ordinary statewide labor market
but who demonstrates by an unsuccessful work search that the
employee is unable to obtain work in or around the employee's
community still qualifies as 100% incapacitated, even though the
employee will receive benefits under the partial incapacity
section of the Workers' Compensation Act and remain subject to
the 400-week duration limit of that section.

L.D. 924, Statement of Fact (114th Legis. 1989).
C.  Summary of Legislative History
	[¶17]  In 1987 and 1989, the Legislature understood total incapacity
to include, in some situations, employees with partial physical incapacity. 
Pursuant to section 54-B as amended in 1987, an employee could establish
entitlement to total benefits by showing either (1) a total physical incapacity
to perform any work, part-time or full-time, regardless of actual availability,
or, (2) if the physical incapacity is partial, by establishing the unavailability
due to the injury of part-time or full-time work in the employee's local
community and that the employee is also physically unable to perform
full-time work in the statewide labor market, regardless of the availability of
that work.  The statutory amendment to section 55-B in 1989 was not
intended to alter the law in 1987, but to clarify the work-search
requirement for those employees who physically were able to perform some
work in the local community and full-time work in the statewide labor
market.{3}

III.  APPLICATION OF LAW TO FACTS

	[¶18]  In this case, we must apply the law at the time of Adams' injury
in 1990.  See P.L. 1991, ch. 885, § A-10.  In order to prove entitlement to
total incapacity benefits for a 1990 injury, the employee must show:  (1) a
total or partial physical incapacity; (2) resulting in;{4} (3) the inability to
obtain any work, part-time or full-time, in the employee's local community;
and (4) the inability to perform full-time work in the ordinary competitive
labor market in the state, regardless of the availability of that work.  
	[¶19]  In this case, the Board concluded that Adams has a partial
physical incapacity and that work is unavailable to him in his local
community as a result of his work-related injury.{5}  These findings satisfy the
first three requirements for establishing total incapacity.  The Board further
found, at least implicitly, that Adams lacked the ability to perform full-time
work in the state labor market.  We conclude that Adams has met the four
requirements.  We must conclude, therefore, that Adams is entitled to total
incapacity benefits pursuant to former section 54-B.
	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 the appellant:

Jeffrey L. Cohen, Esq. 	    (orally)
McTeague, Higbee, MacAdam,
Case, Watson & Cohen, P.A.
P.O. Box 5000
4 Union Park
Topsham, Maine 04086-5000

Attorney for the appellees:

Stephen W. Moriarty, Esq.	(orally)
Norman, Hanson & DeTroy
P.O. Box 4600
415 Congress St. 
Portland, Maine 04112