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Russell v. Russell's Appliance Service2/12/2001
sary for the employee.
Having determined that the 400-week limitation in former section 55-B is not self-executing and that paragraph 205(9)(B) is applicable, the remaining issue in this case is whether subparagraph 205(9)(B)(1) or (B)(2) covers Russell's circumstance. 39-A M.R.S.A. §§ 205(9)(B)(1), (2). The hearing officer determined that pursuant to former section 55-B an order requiring payment of partial incapacity benefits expires by operation of law at the expiration of the 400-week limitation period, thus allowing an employer to unilaterally discontinue benefits under section 205(9)(B)(1) with a twenty-one-day notice. We disagree.
By its terms, subparagraph 205(9)(B)(1) is applicable when "no order or award of compensation or compensation scheme has been entered." In this circumstance, the employer may discontinue benefits by notifying the employee and the Board twenty-one days in advance. Russell's benefits, however, were pursuant to an award of compensation, dated April 29, 1991, which awarded him partial incapacity benefits at a level of 35%. Even if there is no dispute that the 400-week limitation period has expired, subparagraph 205(9)(B)(1) is, nevertheless, inapplicable because an award of compensation had been entered. Thus, subparagraph 205(9)(B)(1) is not applicable to Russell.
Subparagraph 205(9)(B)(2) states that if an award of compensation has been entered, the employer "shall petition the board for an order to reduce or discontinue benefits." 39-A M.R.S.A. § 205(9)(B)(2). Furthermore, the employer is not allowed to "reduce or discontinue benefits until the matter has been finally resolved." Id. Because Russell was receiving his partial incapacity benefits pursuant to the April 29, 1991, award of compensation, subparagraph 205(9)(B)(2) is applicable. The employer did not follow the dictates of (B)(2). Because Russell is entitled to a continuation of benefits beyond the twenty-one days allowed by the hearing officer, we must remand this case to the Board with directions that it apply subparagraph 205(9)(B)(2).
The entry is: The decision of the Workers' Compensation Board is vacated. Remanded to the Workers' Compensation Board for further proceedings consistent with the opinion herein.
DANA, J., with whom SAUFLEY, J., joins, concurring.
Because an employer may bring an action in advance of the 400-week deadline and thereby limit its exposure to the 400 weeks of benefits provided by the Legislature, I concur in this opinion.
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