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Russell v. Russell's Appliance Service2/12/2001
ocedural hoops. The employee, on the other hand, points to subsection 205(9), and argues that it sets forth the requirements that an employer must follow for any discontinuance or reduction of benefits.
Subsection 205(9) is titled "Discontinuance or reduction of payments." 39-A M.R.S.A. § 205(9) (Pamph. 2000). The first paragraph of subsection 205(9) states that an employer "may discontinue or reduce benefits according to this subsection." Id. The following paragraph states that when an employee has returned to work for the employer or has received an increase in pay, the employer may discontinue or reduce the benefits to the employee. 39-A M.R.S.A. § 205(9)(A). The next paragraph of the subsection provides that " n all [other] circumstances . . . if the employer . . . determines that the employee is not eligible for compensation under this Act, the employer . . . may discontinue or reduce benefits only in accordance with this paragraph." 39-A M.R.S.A. § 205(9)(B) (emphasis added). We agree with the hearing officer insofar as he held that paragraph 205(9)(B) is applicable when the employer seeks to discontinue an employee's benefits for the reason that the employee's receipt of benefits is subject to the 400-week limitation in former section 55-B. Paragraph 205(9)(B), by its explicit terms, clearly expresses the intention of the Legislature that in all circumstances, except when the employee has returned to work or received an increase in pay, an employer must adhere to the procedural requirements of the paragraph before discontinuing benefits.
Subsection 205(9) reflects a legislative intent to permit unilateral employer discontinuances or reductions of benefits only when the grounds for termination are relatively free from dispute, that is, when the employee has returned to work with, or has received an increase in pay from, an employer paying compensation. Although this case presents a situation without disagreement as to the application of the 400-week limitation, other cases involving the 400-week limitation are not so clear. For example, the date of maximum medical improvement, which is the operative date from which the 400-week period runs, may be in dispute. See, e.g., Williams v. E.S. Boulos Co., 2000 ME 40, 9-10, 747 A.2d 181, 185-86. Moreover, when an employee has received 400 weeks of full or "total" compensation, it is not always apparent whether the employee has received 100% partial incapacity benefits under section 55-B, or benefits for total incapacity under former 39 M.R.S.A. § 54-B (1989), repealed and replaced by P.L. 1991, ch. 885, § A-7, A-8, which may not be included in the 400-week calculation. See, e.g., Toothaker v. Lauri, Inc., 631 A.2d 1241, 1243 (Me. 1993) (receipt of full benefits pursuant to memorandum of payment does not conclusively establish total incapacity); see also Williams, 2000 ME 40, 5-8, 747 A.2d at 183-85 (weeks of total incapacity not included in 400-week limitation). We find no evidence of a legislative intent to permit employers to determine unilaterally whether maximum medical improvement has been reached or whether, and to what extent, payments have been made for partial as opposed to total incapacity. There is also the situation that occurs when a worker is receiving benefits for two workplace injuries, and only one injury is subject to the 400-week limitation. In such a situation a question may arise as to the amount of benefits the employee is entitled to receive once the 400-week limitation is reached. See Cust v. Univ. of Maine, 2001 ME 29, 3, 4, --- A.2d ---, (Feb. 9, 2001). Because there are differing situations relating to the calculation of the 400-week limitation, the Legislature determined that some procedural protections are neces
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