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Cesare v. Great Northern Paper
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 170
Docket:	WCB-95-779
Argued:	June 16, 1997
Decided:	July 24, 1997

Panel:WATHEN, C.J., and ROBERTS, GLASSMAN, RUDMAN, and LIPEZ, JJ.




PETER CESARE v. GREAT NORTHERN PAPER CO., INC.
ROBERTS, J.

	[¶1]  Great Northern Paper Company, Inc., appeals from the decision of
the Workers' Compensation Board denying Great Northern's petition for
review of the 100% partial incapacity benefits being paid to Peter Cesare. 
Great Northern contends that the Board erred by failing to apply the retiree
presumption of 39-A M.R.S.A. § 223 (Supp. 1996) and by ruling that Great
Northern had not met its burden pursuant to 39-A M.R.S.A. § 205(9)(B)
(Supp. 1996) to show a change of circumstances since a 1990 decision.  We
affirm the decision.  
	[¶2] In the fall of 1986, Cesare elected to take early retirement from
his employment with Great Northern, and filed the necessary paperwork in
December 1986.  On January 4, 1987, prior to his last scheduled day of
work, Cesare suffered a work-related injury.  He began receiving
nondisability retirement benefits on February 1, 1987, the date he originally
elected to retire.  Cesare filed a petition for award that was granted in 1988. 
The former Commission denied Great Northern's petition for review in
1990. The Commission concluded that, although Cesare was capable of
performing remunerative work, he was entitled to 100% partial benefits.
Cesare apparently had sustained his burden of production on the work-
search issue. 
	[¶3]  Great Northern filed the present second petition for review,
alleging that Cesare's incapacity had diminished or ended, and contending
also that because he receives nondisability retirement benefits, Cesare is
subject to the section 223 retiree presumption that he is not incapacitated
as a result of a work-related injury.  The Board concluded that because
Cesare was injured and not working prior to his last scheduled day of work,
he had not terminated active employment at the time he began receiving
nondisability retirement benefits, and therefore section 223 did not apply,
notwithstanding his earlier election to retire.  The Board also concluded
that Cesare remained capable of performing remunerative work, but that it
was not persuaded there has been any change in the other circumstances
that supported the 1990 decision.  In the absence of such change, the Board
decided on the basis of res judicata that Cesare was entitled to retain 100%
partial benefits.  
I.
	[¶4]  Section 223 provides:

§ 223.  Presumption of earnings loss for retirees

	1.  Presumption.  An employee who terminates active
employment and is receiving nondisability 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 used 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 (emphasis added).  Applying a strict interpretation of
the statutory language, the Board concluded that because the employee was
injured, and left work involuntarily, prior to the actual date of retirement,
he had not terminated "active employment" for purposes of section 223. 
Great Northern contends that Cesare's election of early retirement prior to
his injury and while still actively employed, constitutes a termination of
active employment for purposes of section 223.  We disagree.  
	[¶5]  We stated in Bowie v. Delta Airlines, Inc., 661 A.2d 1128 (Me.
1995), that "[t]he phrase 'active employment' is usually understood to mean
'one who is actively on the job and performing the customary work of his
job.'"  Id. at 1131 (quoting Miles v. Russell Mem. Hosp., 507 N.W.2d 784,
785 (Mich. App. 1993)).  Because he was not working as a result of a work-
related injury, Cesare did not terminate active employment on February 1,
1987.  The fact that an employee has announced an intention to retire, or
requested the necessary paperwork, or applied for retirement, does not
affect the status of the employee as actively employed until the effective date
of retirement.  The Board therefore correctly refused to apply the
presumption of section 223.  
II.
	[¶6]  The Board was not persuaded that there had been any change in
circumstances since the 1990 decision.  The Board stated that Cesare's
failure to conduct any work search since that decision did not relieve Great
Northern of its ultimate burden of proving that there was work available
within the community.  Great Northern contends that it met its burden on
its present petition for review by showing that Cesare had failed to continue
to seek work within his work capacity.  It argues that an employee's lack of
any work search after a sufficient period of time should be regarded as a
change of circumstances affecting earning capacity.  There is no statutory
language to support such an interpretation.  Moreover, reliance on an
indeterminate period of time to limit the application of res judicata would
be unfair to the employee and a nightmare to administer.  We conclude that
the Board correctly applied section 205(9)(B).  
	The entry is: 
				 Decision affirmed.

Attorneys for employee: Wayne W. Whitney, Esq. James G. Fongemie, Esq. (orally) McTeague, Higbee, MacAdam, Case, Watson & Cohen P O Box 5000 Topsham, ME 04086-5000 Attorneys for employer: John A. Woodcock, Jr., Esq. (orally) Weatherbee, Woodcock, Burloack & Woodcock, P.A. P O Box 1127 Bangor, ME 04402-1127