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Grubb v. S.D. Warren Co.12/4/2003
Reporter of Decisions
Argued: January 16, 2003
Majority: SAUFLEY, C.J., and RUDMAN, DANA, ALEXANDER, and LEVY, JJ.
Concurring/Dissenting: CLIFFORD and CALKINS, JJ.
S.D. Warren Company appeals from a decision of a hearing officer of the Workers' Compensation Board (Jerome, HO) granting Carl Grubb's petition for restoration and awarding him partial incapacity benefits pursuant to 39-A M.R.S.A. § 224 (Supp. 2002). S.D. Warren contends that it was error to recalculate the employee's benefits in the absence of a finding that his circumstances had changed since a previous decree awarding benefits. We agree and vacate.
I. BACKGROUND
Carl Grubb suffered work-related injuries in 1985 and 1986 while employed by S.D. Warren, and continues to work for S.D. Warren with work-restrictions. Grubb was awarded partial incapacity benefits pursuant to a decree in 2000. The hearing officer concluded in the 2000 decree that, because Grubb is entitled to an inflation adjustment pursuant to the law at the time of his 1985 and 1986 dates of injury, see 39 M.R.S.A. §§ 55, 55-A (Pamph. 1986), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8 (codified at 39-A M.R.S.A. § 213 (2001 & Supp. 2002)), Grubb's weekly benefit rate would be calculated by first adjusting his pre-injury wage for inflation and comparing the adjusted wage with his current inflated earnings.
S.D. Warren filed a timely petition for appellate review challenging the 2000 decree. While S.D. Warren's petition was pending, we decided Bernard v. Mead Publ'g Paper Div., 2001 ME 15, 17, 765 A.2d 576, 581, holding that, in calculating partial incapacity benefits in ordinary cases, the hearing officer must first compare unadjusted wages and apply the inflation factor to the difference, if any. S.D. Warren's petition for appellate review was granted and the hearing officer's decision was summarily vacated and remanded to the Board with instructions to apply the rule as articulated in Bernard. On remand, the hearing officer vacated the earlier decision and denied ongoing benefits, after concluding that, because Grubb's current earnings exceeded his unadjusted pre-injury earnings, he would not be entitled to partial incapacity benefits. Grubb did not appeal.
After the hearing officer's decision on remand, the Legislature enacted section 224, altering the rule for calculating partial benefits. Section 224 provides:
The annual adjustment made pursuant to former Title 39, sections 55 and 55-A must be made as follows. The preinjury average weekly wage must first be adjusted to reflect the annual inflation or deflation factors as computed by the Maine Unemployment Insurance Commission for each year from the date of injury to the date of calculation. Once this weekly benefit amount is calculated, the amount must continue to be adjusted annually so that it continues to bear the same percentage relationship to the average weekly wage in the State as computed by the Maine Unemployment Insurance Commission as it did at the time of the injury. This section clarifies the method of calculating the annual adjustment to benefits under former Title 39, sections 55 and 55-A and applies to all benefit calculations pursuant to those sections.
P.L. 2001, ch. 390, § 1 (codified at 39-A M.R.S.A. § 224) (effective September 21, 2001).
Shortly after the effective date of section 224, Grubb filed another petition seeking a new calculation of his weekly benefits. Grubb sought a recalculation based on the change in section 224, but he did not prove a factual change in circumstances, nor did he seek to have the hearing officer address his b
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