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Hogan v. Great Northern Paper11/28/2001
on, as it did at the time of the injury . . . . 39 M.R.S.A. § 55 (Supp. 1973), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8 (codified at 39-A M.R.S.A. §§ 213, 214 (2001)).
The concept of an employee being "available" or "unavailable" for work derives from the phrase "able to earn" in the partial incapacity statute. Bureau, 678 A.2d at 587. Great Northern contends that it was error for the hearing officer to conclude that work paying more than $100 per week was unavailable because of the negative financial consequences related to Hogan's disability pension with Canadian Pacific. We previously addressed a similar issue in Longtin v. City of Lewiston, 1998 ME 90, 710 A.2d 901. In Longtin, the employee began receiving disability pension benefits when his injury prevented him from continuing his employment as a firefighter. Id. 2, 710 A.2d at 902. Pursuant to a collective bargaining agreement, if the employee earned more than $10,000 for five years following the injury, he would not be entitled to maximum retirement benefits. Id. 3. Seeking to maximize his pension, the employee refused an offered post-injury job because it paid greater than $10,000 a year. Id. 5, 710 A.2d at 902-03. We affirmed the hearing officer's decision to regard the post-injury employment as available, even though acceptance of the job would adversely affect the employee's retirement. Id. 11-12, 710 A.2d at 904-05.
The hearing officer in the present case attempted to distinguish Longtin on two grounds: first, the hearing officer reasoned that the financial consequences were greater in this case than in Longtin, second, unlike Longtin, there was no specific job offered to the employee.
These distinctions are not persuasive. Partial incapacity benefits are calculated by determining the difference between the employee's pre-injury average weekly wage and what the employee is "able to earn" after the injury. 39 M.R.S.A. § 55 (Supp. 1973), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8. Post-injury " arning capacity is based on (1) the employee's physical capacity to earn wages, and (2) the availability of work within the employee's physical limitations." Dumond v. Aroostook Van Lines, 670 A.2d 939, 941 (Me. 1996). In all cases involving partial incapacity, including those in which there is no specific job offer or when the employee has failed to conduct a work search, the obligation of the hearing officer is to determine what the employee is "able to earn."
As we stated in Longtin, 12, 710 A.2d at 905, " hile it cannot be said that [collateral financial] consequences will never render employment 'unavailable,' the Board's primary focus pursuant to the goals of the Act must be on whether the employee is capable of performing the employment and whether that employment is actually open to him." (emphasis added). See also Johnson v. Shaw's Distrib. Ctr., 2000 ME 191, 14-17, 760 A.2d 1057, 1061. This interpretation of the "able to earn" language supports the principle of mitigation that encourages employees to seek post-injury employment and permits employers to reduce benefits according to what the partially incapacitated employee is able to earn.
Longtin does not rule out the possibility that negative consequences may, in some extreme cases, render certain post-injury employment "unavailable." However, the fact that an employee's benefit payments from one employer may be reduced, if the employee receives outside income above a set amount, does not render outside work, paying above the set amount, "unavailable" so as to impose a benefit payment obligation on a second employer. The negative financial impact in the present case does not render work payin
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