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Hogan v. Great Northern Paper11/28/2001
Reporter of Decisions
Argued: November 6, 2001
Great Northern Paper, Inc., appeals from a decision of a hearing officer of the Workers' Compensation Board, granting Robert Hogan's petition for restoration or workers' compensation benefits. Great Northern contends that it was error for the hearing officer to conclude that negative financial consequences related to Hogan's disability pension made post-injury employment paying more than $100 per week "unavailable" for purposes of determining post-injury earning incapacity. We agree and vacate the hearing officer's decision.
I. CASE HISTORY
The basic facts are not disputed. Robert Hogan suffered a serious right arm injury in 1974, while employed by Great Northern. Great Northern paid total incapacity and medical benefits for a period following the injury. Hogan began work for the Canadian Pacific Railroad in 1978, where he remained employed for twenty-one years. During his time with the railroad, Hogan sometimes received medical treatments for his right arm, paid for by Great Northern. In 1997, Hogan began monthly treatment for symptoms in his right hand and forearm, and later psychological treatment for pain and stress management, on referral from his physician.
Hogan left Canadian Pacific in July 1999. Following the termination of his employment with Canadian Pacific, Hogan received sick pay for a short time. In February 2000, Hogan began receiving temporary disability benefits of $1,925 per month pursuant to a Canadian Pacific pension plan.
Hogan filed a petition for restoration of incapacity benefits from Great Northern. The hearing officer concluded that Hogan has a post-injury ability "to engage in full-time light to moderate work with minimal accommodations from an employer." Accordingly, the hearing officer imputed to Hogan an ability to earn $210 per week.
Because Hogan did not conduct a good-faith work search, the hearing officer concluded that Hogan failed to meet his burden of production to justify an award of 100% partial incapacity benefits. See Bureau v. Staffing Network, Inc., 678 A.2d 583, 587 (Me. 1996). For the period following Hogan's receipt of disability benefits, however, the hearing officer concluded that work paying more than $100 per week is "unavailable" to Hogan because of the negative financial consequences that higher earnings would have on Hogan's Canadian Pacific benefits. Under the terms of the Canadian Pacific pension plan, if Hogan receives more than $100 per week in outside employment, his disability payments will be cut in half. The hearing officer affirmed his conclusion in response to Great Northern's motion for further findings of fact and conclusions of law. We granted Great Northern's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (2001).
II. DISCUSSION
For Hogan's 1974 date of injury, entitlement to partial incapacity benefits is governed by former 39 M.R.S.A. § 55, providing, in pertinent part:
While the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to 2/3 the difference, due to said injury, between his average weekly wages, earnings or salary before the accident and the weekly wages, earnings or salary which he is able to earn thereafter, but not more than 2/3 of the average weekly wage in the State of Maine as computed by the Employment Security Commission; and such weekly compensation shall be adjusted annually on July 1st so that it continues to bear the same percentage relationship to the average weekly wage in the State of Maine as computed by the Employment Security Commissi
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