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Pendexter v. Tilcon of Maine
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MAINE SUPREME JUDICIAL COURT 					Reporter of Decisions
Decision:	1999 ME 34
Docket:	WCB-98-172
Argued:	February  2, 1999
Decided:	February 17, 1999

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


BARRY PENDEXTER v. TILCON OF MAINE, INC. AND HARTFORD INSURANCE CO.

ALEXANDER, J.

	[¶1]  Barry Pendexter appeals from a decision of the Workers'
Compensation Board granting, in part, his petition for restoration.  The issue
in this appeal is whether the workers' compensation retiree presumption
applies to an employee who returns to work after an initial period of
retirement.  39-A M.R.S.A. § 223 (Supp. 1998).  We affirm.
	[¶2]  Pendexter suffered a work-related low back and left leg injury on
October 16, 1985, while employed by Tilcon as a road paving foreman and
received short-term incapacity benefits until February 1986.  His
employment at Tilcon involved a seasonal hiatus between December and
March, when he would receive $120 a week to "stay at home."  During
paving season, however, he would work 10 to 14 hours a day for 5 1/2 days a
week, or roughly 60 hours a week.  Pendexter retired from Tilcon in
October 1990 at age 55, a retirement, the hearing officer found, that had
been planned for a couple of years.  He then began receiving nondisability
retirement pension benefits in the amount of $491 a month.  Pendexter
moved to Florida after his retirement.  He remained unemployed for roughly
2 years, except for a short-term return to work for six weeks as a medical
courier.  In April 1992, he began full-time employment delivering auto
parts, earning approximately $240 a week.  In April 1993 Pendexter
suffered a second work injury to his back and remained out work until
August 1993.  He received short-term compensation from his Florida
employer pursuant to Florida workers' compensation law for the period that
he missed work.  
	[¶3]  Pendexter returned to work for his Florida employer from August
1993 until May 1995, when he returned to Maine.  One month after his
return to Maine, Pendexter found part-time, seasonal work as a chamber
person at a motel, earning approximately $116 to $155 a week.  After his
seasonal lay off in October 1995, Pendexter suffered congestive heart failure
and has not returned to work.  Pendexter does not dispute the Board's
finding that the heart attack was an independent intervening cause of his
ongoing incapacity and, therefore, on appeal he does not seek continuing
incapacity benefits after January 1996.
	[¶4]  While still employed in Florida, Pendexter filed a petition for
restoration with the Maine Workers' Compensation Board in August of 1994. 
The Board concluded that the retiree presumption applies to his initial
retirement based on a finding that Pendexter had terminated active
employment prior to the receipt of his nondisability pension.  The retiree
presumption provides:
§ 223.  Presumption of earnings loss for retirees

	1.  Presumption.  An employee who terminates active
employment and is receiving non-disability pension or
retirement benefits under either a private or governmental
pension or retirement program, including old-age benefits under
the United States Social Security Act, 42 United States Code
Sections 301 to 1397f, that was paid by or on behalf of an
employer from whom weekly benefits under this Act are sought
is presumed not to have a loss of earnings or earning capacity as
the result of compensable injury or disease under this Act.  This
presumption may be rebutted only by a preponderance of
evidence that the employee is unable, because of a work-related
disability, to perform work suitable to the employee's
qualifications, including training or experience.  This standard of
disability supersedes other applicable standards to determine
disability under this Act.

	2.  Construction.  This section may not be construed as a
bar to an employee receiving medical benefits under section 206
upon the establishment of a causal relationship between the
employee's work and the need for medical treatment.
39-A M.R.S.A. § 223 (Supp. 1998).
	[¶5]  The Board concluded that Pendexter could only rebut the retiree
presumption for the four-month period in 1993 that he was totally
incapacitated as a result of his Florida work injury.{1}  With regard to the
remaining period of employment before and after the Florida work injury,
the Board concluded:
There is simply insufficient evidence upon which to conclude
that he was unable to perform work within or without his field of
skill, otherwise suitable to his qualifications.  Bowie v. Delta
Airlines[, Inc.], 661 A.2d 1128 (Me. 1995).  Mr. Pendexter
actually worked two different jobs in the period during which
benefits were sought.  He was, in fact, capable of performing
those jobs and others. 
The Board denied Pendexter's motion for further findings of fact and
conclusions of law, and we granted his petition for appellate review pursuant
to 39-A M.R.S.A. § 322 (Supp. 1998).
	[¶6]  Pendexter first contends that the section 223 presumption
should not apply to him because his retirement was "involuntary."  The
employee in Bowie v. Delta Airlines, Inc., 661 A.2d 1128, 1131-32 (Me.
1995), made a similar argument.  As in Bowie, we conclude that it is not
necessary for us to determine whether section 223 is inapplicable in cases
of involuntary retirement, because the Board found on competent evidence
that Pendexter's retirement was voluntary.  The Board found that 
the retirement had been planned for more than a couple of years
before it was taken and that Mr. Pendexter enjoyed his
retirement for a couple of years before he chose to seek further
work.  Mr. Pendexter testified that he planned to return to work
at some point post retirement 'to bring in some money and no
headaches.'  By this, I take it that Mr. Pendexter planned to
work less and rely on his retirement income to some extent.
	[¶7]  Pendexter contends further that, even if the section 223
presumption was triggered by his initial retirement, the presumption no
longer applied after he returned to full-time "active employment."  We
disagree.  
	[¶8]  Section 223 was based on a virtually identical Michigan law,
Mich. Comp. Laws § 418.373 (1998).  See Bowie, 661 A.2d at 1130; see also
L.D. 2464, Statement of Fact (116th Legis. 1992).  Decisions of this Court
and the courts of Michigan have interpreted the term "active employment"
to refer to the employment at the time of the employee's original
retirement. The test for determining "active employment" in this context
hinges on the degree to which the employee's work-injury impairs his or
her ability to return to the full-duties of pre-injury employment.  See e.g.,
Cesare v. Great N. Paper Co., Inc., 1997 ME 170, ¶5, 697 A.2d 1325, 1327;
Bowie, 661 A.2d at 1131; see also Miles v. Russell Memorial Hosp., 507
N.W.2d 784, 785 (Mich.App. 1993); Dezwaan v. Holland Motor Express, 473
N.W.2d 788, 790 (Mich.App. 1991); Frasier v. Model Coverall Serv. Inc., 453
N.W.2d 301, 302-03 (Mich.App. 1990).
	[¶9]  As Pendexter concedes, and as the Board suggests, some
retirees, although they return to work, may deliberately seek
underemployment after retirement for the purpose of supplementing their
retirement benefits, but with no serious intent to return to full-time
employment.  Were we to adopt the employee's interpretation of section
223, we would then have to arrive at a completely different interpretation of
the phrase "active employment", applicable only to post-retirement
employment, that hinges on the subjective intent of the employee regarding
return to the previous full-time active employment.  We find no support for
such an analysis in either the legislative history or the case law, nor do we
ascribe to the Legislature an intent to require fact-finding concerning an
employee's subjective, and possibly evolving, intentions to retire and to stay
retired.  Moreover, the employee's interpretation, if adopted, would, in
effect, create a second means of rebutting the retiree presumption when the
statute only provides one.
	[¶10]  We do not address the situation of an employee who retired and
went immediately to another job.  In this case, Pendexter voluntarily
terminated active employment and remained out of work for a period of
time before seeking re-employment.  The retiree presumption was
therefore triggered in October 1990 when he initially retired.  The
Legislature could have rationally concluded that, in the case of an employee
who terminates active employment and accepts nondisability retirement
benefits, the employee's resulting unemployment or under employment is
most probably no longer "due to the injury," but due to the retirement.
	[¶11]  Finally, Pendexter contends that, even if the retiree
presumption applies, the Board erred in concluding that he failed to rebut
the presumption for the period of time after he returned to full-time work. 
Section 223 provides, in pertinent part: "This presumption may be rebutted
only by a preponderance of evidence that the employee is unable, because of
a work related disability, to perform work suitable to the employee's
qualifications, including training or experience."  39-A M.R.S.A. § 223.
	[¶12]  In Bowie, 661 A.2d at 1132, we cited with approval the
interpretation of the rebuttal provision adopted by the Michigan Court of
Appeals:
Relevant inquiries under [the retiree presumption] are: What is
the retired employee's residual physical capacity after his work-
related injury?  What skills and knowledge has he acquired
through training or experience?  Are these skills transferable to
other types or occupations?  Are there other jobs to which his
skills and knowledge can be transferred within his physical
capacity to perform?  Under this analytical framework, the
retired claimant's burden of rebutting the presumption is
twofold: (1) he must establish that he has physical restrictions
resulting from a work-related injury or disease, and (2) that
these restrictions render him unable to perform work, within or
without his field of skill, that is otherwise "suitable to his
qualifications."  In other words, a retired worker must
demonstrate by a preponderance of the evidence that the work-
related impairment precludes him from performing any other
work, either within or without his field of skill, for which he is
qualified by virtue of his prior training or experience and to
which he can transfer, adapt or utilize job skills and such
knowledge previously acquired.
Bowie, 661 A.2d at 1132 (quoting Peck v. General Motors Corp., 417 N.W.2d
547, 552-53 (Mich.App. 1987), rev'd, in part, on other grounds, Pankow v.
General Motors Corp., 438 N.W.2d 80 (Mich. 1989)).  Thus, in Peck, 417
N.W.2d at 552, the Michigan Court of Appeals stated that "'the definition of
'suitable work' [means] any job, within or without [the employee's] field of
skill for which plaintiff is qualified by virtue of his training or experience as
a millwright, to which he can transfer, adopt, or utilize those skills and
knowledge'" (emphasis in original) (citations omitted).
	[¶13]  The interpretation of the Board is consistent with the statute's
plain language.  In order to rebut the retiree presumption, Pendexter
needed to show an inability to perform any remunerative work.  Because
Pendexter could only rebut the presumption for that four-month period of
time while in Florida that he was totally incapacitated from work, we affirm
the decision of the Board.
	The entry is:
Decision of the Workers' Compensation 
		Board affirmed.

Attorneys for employee: James J. MacAdam, Esq., (orally) James G. Fongemie, Esq. Wayne W. Whitney, Esq. McTeague, Higbee, MacAdam, Case, Watson & Cohen, P.A. P O Box 5000 Topsham, ME 04086-5000 Attorney for employer: Robert W. Bower, Jr., (orally) Norman, Hanson & DeTroy, LLC P O Box 4600 Portland, ME 04112-4600
FOOTNOTES******************************** {1} The Board also awarded total incapacity benefits from September 2, 1994 to January 4, 1995 for the employer's failure to file a timely notice of controversy. Tilcon has not appealed from this decision.