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Ray & Pelletier dissenting opinion.

DANA, J., with whom LIPEZ, J., joins, dissenting.
  
	[¶11]  I agree with the Court's holding in Ray v. Carland Construction,
Inc. that an employee's average weekly wage in a successive injury case may
be based on the wage at the time of the most recent injury when the
employee's earnings at the time of that later injury are not affected by an
earlier work-injury.  I also agree that the issue whether the two injuries are
equally contributing is irrelevant to the determination of the applicable
average weekly wage.  I do not agree, however, with the remainder of the
Court's decision in Ray and in Pelletier v. Maine Med. Ctr. holding that the
39-A M.R.S.A. § 213 repeal of the inflation adjustment for partial incapacity
benefits, and the 260-week limitation for the receipt of partial benefits, may
be applied to that portion of an employee's benefits that relate to a pre-1993
injury, if that injury combines with a subsequent injury after 1993. 
	[¶12]  I cannot agree with the Court's conclusion that the general
legislative goal of cost-reduction justifies altering benefits for injuries that
pre-date the effective date of the Act, in the face of an express legislative
purpose not to alter those benefits.  Maine Workers' Compensation Act of
1992, P.L. 1991, ch. 885, § A-10 (effective January 1, 1993).  Section A-10
provides:  "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 the
provisions of this Act apply, except that . . .  Title 39-A, sections 211
[maximum benefit levels], 212 [total incapacity benefits], 213 [partial
incapacity benefits], 214 [determination of partial incapacity benefits], 215
[death benefits], 221 [coordination of benefits], 306 [statute of limitation],
and 325 [attorney's fees], do not apply."  Maine Workers' Compensation Act
of 1992, P.L. 1991, ch. 885, § A-10 (effective January 1, 1993) (emphasis
added).{6}  The plain import of this language is that these sections were not to
be applied to the determination of benefits for pre-1993 injuries.  Dumond
v. Aroostook Van Lines, 670 A.2d 939, 941 n.1 (Me. 1996); Marchand v.
Eastern Welding Co., 641 A.2d 190, 191, n.1 (Me. 1994).  As we have stated,
"a clearer statement of legislative intent . . . is hard to imagine."  Morgan-
Leland v. University of Maine, 632 A.2d 748, 749 (Me. 1993).{7}
	[¶13]  Notwithstanding the express legislative intent that section 213
does not apply to pre-1993 injuries, the Court in Ray relies on our decision
in McDonald v. Rumford School Dist., 609 A.2d 1160, 1161 (Me. 1992), to
hold that the repeal of the inflation adjustment in section 213 may be
applied to Ray's 1987 back injury because he suffered a subsequent back
injury in 1993.  In Pelletier v. Maine Med. Ctr., the Court relies again on
McDonald to hold that the 260-week durational limitation of section 213
may be applied to a pre-1993 injury when the employee suffers a subsequent
aggravation injury after 1993.  
	[¶14]  The statutory provisions at issue in this case, sections A-10 and
213, are distinguishable from the statute at issue in McDonald.  In that case,
McDonald suffered his first work-related injury in 1986 when the law
provided an inflation adjustment for total incapacity benefits, 39 M.R.S.A.
§ 54-A (Supp. 1987), repealed and replaced by P.L. 1987, ch. 559, part B,
§§ 26, 27 (codified at 39 M.R.S.A. § 54-B (1989)), and a second work injury
in 1988 after the total incapacity statute had been amended to delay the
application of the inflation adjustment until three years after the injury, 39
M.R.S.A. § 54-B (1989), repealed and replaced by P.L. 1991, ch. 885,
§§ A-7, A-8 (codified at 39-A M.R.S.A. § 212 (Supp. 1996)).  With respect to
McDonald's average weekly wage, we held that when an employee's earnings
at the time of an injury are not reduced as a result of a prior injury, the
average weekly wage at the time of the latter injury should be used in the
calculation of benefits.  Id.  Our conclusion was based on the practical reality
that, if an employee's incapacity has resolved and the employee is earning at
his or her full potential at the time of the second injury, the latter average
weekly wage will most accurately reflect that employee's uninjured earning
capacity.  See Nielson v. Burnham & Morrill, Inc., 600 A.2d 1111, 1112 (Me.
1991) ("[t]he purpose of calculating an average weekly wage is to arrive at an
estimate of the 'employee's future earning capacity as fairly as possible'")
(quoting Fowler v. First Nat'l Stores, Inc., 416 A.2d 1258, 1260 (Me. 1980)).  
	[¶15]  Our rationale with respect to the applicable average weekly wage
does not support our decision in McDonald to apply the inflation adjustment
provision at the time of the second injury to McDonald's benefits for total
incapacity.  McDonald's entitlement to an inflation adjustment for the
receipt of total incapacity benefits has nothing to do with the employee's
average weekly wage or whether the employee's earnings at a given time
best reflect his or her uninjured earning capacity.  The rationale for our
decision in McDonald to apply the inflation adjustment at the time of
McDonald's second injury was based on the express legislative intent of the
three-year waiting period to reduce compensation benefits.  We stated that
"[t]he Legislature, in an effort to curtail the costs of workers' compensation,
was free to limit the inflation adjustment of the average weekly wage, and to
provide that it apply to all injuries occurring after the effective date of the
legislative change."   Id. at 1161 (emphasis added).
	[¶16]  Unlike the three-year waiting period provision at issue in
McDonald, we are not dealing simply with a statute intended to reduce
compensation benefits, but a statute that expressly states that section 213
should not be applied to pre-1993 injuries, "[s]o as not to alter benefits for
injuries incurred before January 1, 1993." P.L. 1991, ch. 885, § A-10 
(emphasis added).  Unlike the statute at issue in McDonald, therefore, the
Legislature has not only expressed an intent that certain provisions of title
39-A should not be applied retroactively to injuries that pre-date the
effective date of the Act, but also a reason for that intent-to insure that
benefits for pre-1993 injuries are not altered.  Although we have recognized
that a general goal of the Maine Workers' Compensation Act of 1992 was to
reduce costs in the workers' compensation system, that general purpose
does not compel the conclusion that section 213 was intended to apply to
pre-1993 injuries in the face of express legislative intent to the contrary. 
Had the Legislature intended to cut costs in the workers' compensation
system by applying section 213 to all injuries in a successive injury case, it
could have expressly drafted the statutory language to that effect.
	[¶17]  In addition to running counter to the express legislative intent
not to alter benefits for pre-1993 injuries, the Court's decision also runs
afoul of the goal of encouraging injured employees to return to work.{8}  The
Court's rationale, if taken to its logical conclusion, could have wide-ranging
ramifications to injured employees who return to work in 1993 and
thereafter.  Employees with pre-1993 injuries who are reinjured after 1993
could not only lose their entitlement to an inflation adjustment and be
subject to a shorter time period for the receipt of benefits, but could also,
arguably, lose their right to statutory maximum benefit levels, 39-A M.R.S.A.
§ 211, specific loss benefits for the loss of a body part, 39-A M.R.S.A.
§ 212(3), their right to a more favorable coordination of workers'
compensation benefits with other benefits, 39-A M.R.S.A. § 221, employer-
paid attorney fees, 39-A M.R.S.A. § 325, and could conceivably be subject to
a shorter statute of limitations, 39-A M.R.S.A. § 306.  Moreover, in addition
to discouraging employees from returning to work, today's decision could
also discourage employees with pre-1993 injuries from reporting injuries
after 1993.  While the Legislature may have intended to reduce
compensation benefits, there is no evidence of a legislative intent to
discourage the filing of valid workers' compensation claims.
	[¶18]  Because the Act is clear that section 213 does not apply to
injuries that pre-date January 1, 1993, and that the purpose of this rule is to
insure that benefits for pre-1993 injuries are not altered, I would hold that
Ray is entitled to the inflation adjustment in effect at the time of his 1987
injury for that portion of his incapacity (60%) attributable to that injury.  I
would also hold that Pelletier is entitled to a determination of benefits
according to the law in effect in December 1992 for that portion of her
incapacity (50%) attributable to her 1992 injury.

Attorneys for employees: Paul F. Macri, Esq., (orally) John E. Sedgwick Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 (for Donald Ray) Douglas S. Kaplan, Esq., (orally) Kaplan & Grant P O Box 7474 Portland, ME 04112-7474 (for Denyse Pelletier) Attorneys for employers: Kevin M. Gillis, Esq., (orally) Troubh, Heisler & Piampiano, P.A. P O Box 9711 Portland, ME 04104-5011 (for Liberty Mutual Ins. Co.) Margaret Phair Sack, Esq. Robinson Kriger & McCallum P O Box 568 Portland, ME 04112-0568 (for Acadia Ins. Co.) Elizabeth Knox Peck, Esq.. (orally) Frank W. DeLong, III, Esq. Thompson & Bowie P O Box 4630 Portland, ME 04112-4630 (for Sedgwick James)
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FOOTNOTES******************************** {1}* Glassman, J., sat at oral
argument and participated in the initial conference, but retired before
this opinion was adopted. {1}. Maine Medical Center and Pelletier have stipulated
that the Board erroneously denied Pelletier's petition for an award alleging
a 1994 injury. {2}. Carland Construction was ordered to pay benefits to
Ray and Zachau Construction was ordered to reimburse Carland for its 40%
portion of liability. Ordinarily, the employer liable for the second injury
is responsible for benefits and the employer liable for the first injury
is required to reimburse the second employer. 39-A M.R.S.A. § 354(2)
(Supp. 1996). The parties do not challenge the Board's order making Carland
primarily responsible for Ray's benefit payments with reimbursement from
Zachau. {3}. The inflation adjustment for partial incapacity benefits was
originally repealed in 1987. P.L. 1987, ch. 559, pt. B, § 29 (effective
Nov. 20, 1987). Section 213 of the 1992 Act likewise provides no inflation
adjustment for partial incapacity benefits. {4}. Pursuant to former 39 M.R.S.A.
§ 55-B, partial incapacity benefits are computed as "2/3 the difference,
due to the injury, between (the employee's) average gross weekly wages,
earning(s) or salary before the injury and the weekly wages, earnings or
salary which he is able to earn after the injury." (Emphasis added.)
{5}. 39-A M.R.S.A. § 213(1) computes partial compensation benefits
at "80% of the difference between the injured employee's after-tax
average weekly wage before the personal injury and the after-tax weekly
wage that the injured employee is able to earn after the injury." (Emphasis
added.) {6}. The retroactivity issue is also discussed in the legislative
debates. See Legis. Rec. H-55-57 (3d Spec. Sess. 1991) (discussing a proposed
amendment to section A-10). {7}. In the major legislative reforms to the
Workers' Compensation Act in recent years, the Legislature has expressly
stated whether it has intended the legislative changes to affect employees
with injuries that predate the effective date of the legislation. When the
Legislature enacted large-scale reforms to former title 39 in 1985 and 1989,
for example, it expressly provided that the provisions were to be applied
only to injuries occurring "on or after the effective date" of
the statute. P.L. 1985, ch. 372, Emergency Clause; P.L. 1987, ch. 559, part
B, § 54. Similar language was appended to the workers' compensation
amendments of 1991, P.L. 1991, ch. 615, § D-26. When the Legislature
has intended a statute to apply retrospectively to injuries predating the
effective date, it has specifically expressed that intent in statutory language.
See, e.g., P.L. 1991, ch. 615, §§ A-20, D-25 (exclusion of fringe
benefits from average weekly wage to be applied retroactively). {8}. As
we have previously recognized, employees with preexisting injuries are especially
susceptible to aggravation injuries. See Bryant v. Masters Mach. Co., 444
A.2d 329, 336-337 (Me. 1982). An employee receiving benefits for a pre-1993
back injury, for example, may think twice before going back to work if that
employee believes that his or her benefits, established under an earlier
law, may be limited simply because the employee has the misfortune to receive
a second work injury.