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TRIPP v. PHILIPS ELMET CORP.5/17/1996
Philips Elmet Corp. appeals from a decision of the Workers' Compensation Board granting employee Chester Tripp's petition for review and concluding that because the employer failed to provide a list of suitable employers pursuant to former section 55-B(1)(B), Tripp is entitled to 100% partial incapacity benefits. 39 M.R.S.A. § 55-B(1)(B) (effective for injuries occurring on or after October 17, 1991, and before January 1, 1993). Because the Board misconstrued the parties' respective burdens in cases when a partially incapacitated employee seeks 100% incapacity benefits, we vacate the decision of the Board.
Tripp suffered a carpal tunnel injury on November 18, 1991, while employed by Philips Elmet. In a prior decision, Tripp was awarded short-term total and ongoing 25% benefits, based in part on his failure to conduct a good faith work search. Tripp filed a petition for review in January 1994, contending that his incapacity had increased. The Board found that, although his physical incapacity continues at 25%, Tripp was entitled to 100% incapacity benefits because Philips Elmet failed to provide a list of suitable employers and therefore had not met its burden of production after the first forty weeks following the injury. We granted Philips Elmet's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1995).
Philips Elmet contends that it was error for the Board to conclude that section 55-B, as amended in 1991, relieves the employee of the burden of seeking work in the employee's community after 40 weeks from the date of the injury. Although many of our decisions discuss the respective burdens of the parties in cases involving injuries that predate October 17, 1991, we have not addressed the parties' burdens pursuant to section 55-B as amended in 1991.
Our early decisions hold that a partially incapacitated employee may receive compensation for total incapacity based on a combination of the work injury and a loss of employment opportunity attributable to that injury. Pelchat v. Portland Box Co., 155 Me. 226, 229-30, 153 A.2d 615, 617-18 (1959);
Connelly's Case, 122 Me. 289, 292-93, 119 A. 664, 666 (1923); Ray's Case, 122 Me. 108, 110-11, 119 A. 191, 191-92 (1922). At the time of Ray's Case, the Act provided that " hile the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to three-fifths the difference between his weekly wages, earnings or salary, before the injury and the weekly wages, earnings or salary which he is able to earn thereafter. . . ." P.L. 1919, ch. 238 (emphasis added). This statutory language has remained essentially unchanged to the present day. See, e.g., 39-A M.R.S.A. § 213 (Supp. 1995); 39 M.R.S.A. § 55-B (Supp. 1992). In Ray's Case, we held that the term "incapacity for work" means not merely physical incapacity, but also the lack of employment resulting from the injury. Ray's Case, id. at 111, 119 A. at 192; Levesque v. Shorey, 286 A.2d 606, 609 (Me. 1972). More importantly, partial benefits are calculated by reference to what the employee is "able to earn" following an injury. 39-A M.R.S.A. § 213; 39 M.R.S.A. § 55-B; P.L. 1919, ch. 238 (emphasis added). It is implicit in the phrase "able to earn" that the determination of partial incapacity requires more than an examination of the employee's actual physical limitations or actual post-injury earnings. Ray's Case, 122 Me. at 111, 119 A. at 192. The inquiry is the degree to which the "persisting effects of work-related injury are preventing [the employee] from engaging in remunerative work." Ibbitson v. Sheridan Corp., 422 A.2d 1005, 1008 (Me. 1980).
The so-called work-search rule was a judicial
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