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Ray v. Carland Construstion; Pelletier v. M.M.C.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 206
Docket:	WCB-95-746 & WCB-96-9
Argued:	March 6, 1997
Decided:	October 23, 1997

Panel:WATHEN, C.J., and ROBERTS, GLASSMAN,{1} CLIFFORD, RUDMAN, DANA, and
LIPEZ, JJ. 

Majority:	WATHEN, C.J., and ROBERTS, CLIFFORD, and RUDMAN, JJ.
Dissent:	DANA and LIPEZ, JJ.

DONALD P. RAY v. CARLAND CONSTRUCTION, INC. and LIBERTY MUTUAL INSURANCE CO. and ZACHAU CONSTRUCTION CO. and ACADIA INSURANCE CO.
                                    
DENYSE PELLETIER v. MAINE MEDICAL CENTER and SEDGWICK JAMES OF NORTHERN NEW ENGLAND
ROBERTS, J.

	[¶1]  Both cases in this consolidated appeal from decisions of the
Workers' Compensation Board raise issues concerning the applicable law in
successive injury cases.  In the first case, Carland Construction, Inc.,
contends that the Board erred by basing an award of compensation on
Donald P. Ray's average weekly wage at the time of the first injury and
including an inflation  adjustment pursuant to former 39 M.R.S.A. § 55-A
(Supp. 1987), repealed and replaced by P.L. 1987, ch. 559, part B, §§ 29,
30, codified at 39 M.R.S.A. § 55-B (1989).  In the second case, Denyse
Pelletier contends that the Board erred in applying 39-A M.R.S.A. § 213
(Supp. 1996) to determine  her incapacity benefits when 50% of her
incapacity was attributable to a pre-1993 injury governed by former 39
M.R.S.A. § 55-B (1989), repealed by Maine Workers' Compensation Act of
1992, P.L. 1991, ch. 885, § A-7 (effective January 1, 1993).  We vacate the
decision of the Board in Ray, and affirm in part{1} the Board's decision in
Pelletier.  
Ray v. Carland Construction, Inc.
	[¶2]  Donald P. Ray suffered his first injury to his back on November 4,
1987, while employed at Carland Construction.  His average weekly wage
was $455.59.  After two months, Carland discontinued its voluntary payment
of benefits.  Ray suffered a second back injury on November 8, 1993, while
employed by Zachau Construction Co., where his average weekly wage was
$447.16.  In 1994 and 1995, Ray filed petitions for award and further
compensation relating to both injuries.  In granting the petitions, the Board
found that 60% of Ray's incapacity was attributable to the 1987 injury and
40% to the 1993 injury, and that his benefits should be calculated according
to the average weekly wage at the time of his first injury.{2}  The Board also
concluded that Ray was entitled to the inflation adjustment that was in effect
at the time of the 1987 injury, even though the adjustment had been
repealed by the time of the 1993 injury.  
	[¶3]  Carland filed a motion for further findings of fact and conclusions
of law, contending that Ray's benefits should have been based on the average
weekly wage at the time of the second injury unless the second wage was
lower as a result of the first injury.  McDonald v. Rumford School Dist., 609
A.2d 1160, 1161 (Me. 1992).  Without expressly determining whether Ray's
earnings at the time of the second injury were lower as a result of the first
injury, the Board denied the motion stating that, unlike McDonald which
involved two injuries that contributed equally to the employee's incapacity,
the greater portion of the responsibility (60%) was attributable to Ray's first
injury and therefore his benefits should be calculated according to his
average weekly wage at the time of the first injury.  We granted Carland's
petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1996).  
	[¶4]  Carland raises two issues on appeal:  (1) whether the Board
properly calculated Ray's benefits according to the average weekly wage at
the time of his first injury and (2) whether Ray's entitlement to an inflation
adjustment is governed by the law in effect at the time of his first injury in
1987 or the law in effect at the time of his 1993 injury, which does not
provide an adjustment for inflation or deflation.  We conclude that both
issues are controlled by our decision in McDonald, 609 A.2d at 1161.  In
that case McDonald suffered a work-related back injury in 1986 and, after
returning to full-time work, suffered a second compensable back injury in
1988.  Id. at 1160.  The law in effect at the time of the of the first injury
provided an immediate 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)).  The law at the
time of McDonald's second injury, however, delayed 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)).  Because it was impossible to
determine the exact contribution of each injury to McDonald's continuing
incapacity, the former Workers' Compensation Commission divided the
responsibility equally between the two injuries.  McDonald, 609 A.2d at
1161.  The Commission concluded further that McDonald was entitled to
the inflation adjustment and to the average weekly wage in effect on the date
of his first injury.  Id.  We vacated the Commission's decision, concluding, in
part, that the Commission should have computed McDonald's benefits based
on his average weekly wage at the time of his second injury.  Id.  Contrary to
the Board's conclusion in this case, the fact that McDonald's injuries were
"equally contributing" was not the controlling factor on the issue of the
applicable average weekly wage.  Id.  The controlling factor in McDonald was
that the employee's earnings at the time of the second injury were not
reduced as a result of his first injury.  Id.  Recognizing that the purpose of
the average weekly wage formula is to provide a fair estimate of the
employee's future earning capacity in the absence of an injury, we concluded
that if the employee has no incapacity at the time of the second injury, the
second average weekly wage will most accurately reflect the employee's pre-
injury earning capacity.  Id.; Warren v. H.T. Winters Co., 537 A.2d 583, 585
(Me. 1988).  We therefore agree with Carland Construction that it was error
for the Board to calculate Ray's benefits according to the average weekly
wage at the time of his 1987 injury without first determining whether his
earnings at the time of his 1993 injury were reduced as a result of the 1987
injury.  Moreover, Ray conceded at oral argument that there is no evidence
that the 1987 injury caused a loss of earning capacity at the time of the
1993 injury.  Accordingly, his benefits should have been calculated
according to his 1993 average weekly wage.
	[¶5]  McDonald is also controlling on the issue of the applicable
inflation adjustment.  609 A.2d at 1161.  We held that McDonald's benefits
must be adjusted according to the inflation provision in effect at the time of
his second injury.  We stated:
  
As an employee who has suffered successive equally contributing
injuries, McDonald's rights "cannot be determined until the
time of the second injury, since it is not until that time that both
injuries combine to cause the incapacity."  Warren, 537 A.2d at
586.  The 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.  As was the case for the average weekly wage, the fact that McDonald's
injuries contributed equally to his incapacity had no relevance to our
decision on the inflation adjustment.  Recognizing that the Legislature
sought to reduce costs in the workers' compensation system by requiring a
three-year waiting period for the adjustment of total benefits, we concluded
that the waiting period was intended to apply to all successive injury cases
when the most recent injury occurs after the effective date of the statute. 
Id.  
	[¶6]  We see no reason to adopt a different holding with respect to the
1992 Act.  As we have stated, a major purpose of the new Act was to reduce
costs in the workers' compensation system.  Bowie v. Delta Airlines, Inc.,
661 A.2d 1128, 1131, n.2 (Me. 1995).  Moreover, the Legislature is
presumed to be aware of our decision in McDonald.  See Musk v. Nelson,
647 A.2d 1198, 1202 (Me. 1994).  Accordingly, we conclude that the
Legislature intended the 1992 Act to apply to awards of benefits in
successive injury cases when the most recent injury occurs after the
effective date of the Act.{3}  See Bureau v. Staffing Network, Inc., 678 A.2d
583, 588 (Me. 1996) ("'In the absence of clear and explicit statutory
language showing that the legislature intended a statute to modify case law,
we will not interpret a statute to effect such a modification.'") (quoting
Caron v. School Admin. Dist. No. 27, 594 A.2d 560, 563 (Me. 1991)); Tripp
v. Philips Elmet Corp., 676 A.2d 927, 930-31 (Me. 1996).  We conclude,
therefore, that the Board erred by applying the inflation adjustment in this
case.
Pelletier v. Maine Medical Center
	[¶7]  Denyse Pelletier injured her right shoulder on December 7, 1992,
while employed as a special care nurse at Maine Medical Center and
concurrently employed at Mercy Hospital.  She returned to light-duty
employment at Maine Medical Center, earning less than her pre-injury wage. 
Maine Medical voluntarily paid partial benefits pursuant to 39 M.R.S.A.
§ 55-B, calculated at two-thirds the difference between her gross earnings
before and after the injury.{4}  In 1994 Pelletier reinjured her shoulder and
Maine Medical Center unilaterally altered Pelletier's benefits pursuant to the
current partial incapacity statute, 39-A M.R.S.A. § 213, to reflect the
difference between her "after tax" earnings before and after the injury.{5}  
	[¶8]  In 1994 and 1995 Pelletier filed petitions for review and for
restoration for the 1992 injury; Maine Medical Center filed petitions for
review relating to both injuries.  The parties agreed that because her
earnings were lower at the time of the 1994 injury as a result of her first
injury, her average weekly wage should be based on her earnings at the time
of the earlier 1992 injury.  Relying on our decision in McDonald, 609 A.2d at
1161, the Board concluded that because the 1992 and 1994 injuries
contributed equally to her incapacity, Pelletier's entitlement to ongoing
partial benefits is governed by the law at the time of her second injury, 39-A
M.R.S.A. § 213.  We granted Pelletier's petition for appellate review pursuant
to 39-A M.R.S.A. § 322.  
	[¶9]  By its plain language, section 213 increases partial benefits from
two-thirds the difference in pre- and post-injury wages to 80% of that
difference.  Unlike former section 55-B, section 213 is based on the after-
tax wages, not on the gross wages.  Section 213 also reduces the number of
weeks that partial benefits are available in cases where the total body
impairment is less than 15%.  Section A-10 of the implementing Act
provides, in pertinent part:  "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, 212, 213, 214, 215, 221, 306, and 325 do not apply."  Maine
Workers' Compensation Act of 1992, P.L. 1991, ch. 885, § A-10 (effective
January 1, 1993) (emphasis added).  We have held that because section 213
is expressly listed as prospective in application, it does not apply to 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).  Accordingly, section 213 does not apply to Pelletier's 1992 injury. 
Pelletier contends that it was error for the Board to apply section 213 to
compute her ongoing benefits, when 50% of her incapacity was attributable
to the 1992 injury.  She argues that all of her benefits are governed by
former section 55-B.  
	[¶10]  We agree with the Board that this case is governed by McDonald,
609 A.2d 1160, and, notwithstanding the Board's incorrect reliance on the
fact that the 1992 and 1994 injuries contributed equally to Pelletier's
incapacity, we conclude that the result reached by the Board in this case is
correct.  We stated in McDonald that because McDonald's injuries did not
combine to produce his resulting back condition until after the effective
date of the repeal of the inflation waiting period, that waiting period applied
to the determination of McDonald's entire award of benefits, even though
his first injury preceded the effective date of the statute.  Id. at 1161.  In
this case, like McDonald, Pelletier's injuries did not combine to produce her
resulting shoulder incapacity until after the effective date of section 213.  A
major purpose for the enactment of section 213 was to reduce workers'
compensation costs by reducing partial incapacity benefits in cases where
the total body impairment is less than 15%.  Report of Blue Ribbon
Commission to Examine Alternatives to the Workers' Compensation System
and to Make Recommendations Concerning Replacement of the Present
System, Findings of the Majority of the Blue Ribbon Commission 2
(August 31, 1992).  Moreover, the presumption that the Legislature acted
with knowledge of our opinion in McDonald leads us to conclude once again
that the Legislature intended section 213 to apply to successive injury cases
when more than one injury contributes to an incapacitating condition. 
Accordingly, we affirm the Board's decision to apply section 213 to
determine Pelletier's entire award of benefits, notwithstanding the fact that
her first injury occurred prior to the effective date of title 39-A.  
	The entry is:  
				In Ray v. Carland Construction, Inc., WCB-95-746:
				Decision vacated.  Remanded to the Board  for
				further proceedings consistent with the decision
				herein.  

				In Pelletier v. Maine Medical Center, WCB-96-9:
				Decision vacated with respect to the employee's
				petition for award for her 1994 injury.  
				Remanded to the Board for an order granting
				the petition for award for the 1994 injury
				pursuant to the parties' stipulation.
Webmaster's note: Because of the combined length of the two opinions in this case, the dissent has been posted as a separate file. JCC
Link to Ray&Pelletier dissent.
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