 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Hincks v. Robert Mitchell Co.11/24/1999
Reporter of Decisions
Argued: September 7, 1999
The insurers, Great American Insurance Co. and Maine Employers' Mutual Insurance Co. ("MEMIC") appeal from a decision of the Workers' Compensation Board, granting the employee's petitions relating to work-injuries that occurred in 1985 and 1994. The insurers challenge the retroactive application of 39-A M.R.S.A. § 201(6) (Supp. 1998), the apportionment of liability between insurers pursuant to 39-A M.R.S.A. § 354 (Supp. 1998), and the inclusion of fringe benefits in the employee's average weekly wage. We vacate that decision.
The employee, Peter Hincks, suffered two injuries while employed by Robert Mitchell Co., d/b/a Douglas Brothers. The first injury occurred on November 20, 1985, while Douglas Brothers was insured by Great American. The second injury occurred on May 9, 1994, while Douglas Brothers was insured by MEMIC. The employee's average weekly wage at the time of his 1994 injury was $717.37, based on an hourly rate of $23.06. A portion of that hourly rate consisted of $5.60 in employer-contributions to union-established benefit funds, which included: a $3.00 contribution to a health and welfare fund; a $1.60 contribution to a pension fund; and a $1.00 contribution to a local annuity fund.
Hincks filed several petitions with the Board in 1994 seeking compensation for the two injuries. The Board granted the petitions in 1997 awarding ongoing seventy-two percent partial incapacity benefits. Although the Board found a causal relationship between the employee's incapacity and both dates of injury, the Board ordered the most recent insurer, MEMIC, to pay all incapacity benefits pursuant to 39-A M.R.S.A. § 354. The Board also concluded, however, that "payments for medical service related to his back injury are to be divided equally between the two carriers; payments for treatments related to Mr. Hincks' depression/anxiety are solely the responsibility of the May 9, 1994 date of injury." Finally, relying on Ashby v. Rust Eng'g Co., 559 A.2d 774, 775 (Me. 1989), the Board concluded that the employer-contributions to employee benefit funds were not fringe benefits, but more akin to bargained-for, dollar-for-dollar contributions on behalf of an employee, and, therefore, should be treated as part of the employee's average weekly wage.
All parties filed motions for further findings of fact and Conclusions of law following the Board's decision in 1997. While the motions were pending, the Legislature enacted P.L. 1998, ch. 647 (effective June 30, 1998), codified at 39-A M.R.S.A. § 201(6). In its subsequent decision in response to the motions for findings of fact, the Board concluded that subsection 201(6) applied to the pending proceeding, and that Hincks is therefore entitled to inflation adjustment for that portion of his incapacity attributable to his 1985 injury. We granted both insurers' petitions for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1998).
We agree with the insurers that the Board's decision to apply subsection 201(6) to a proceeding pending on the effective date of the statute was error pursuant to our recent decision in Loud v. Kezar Falls Woolen Co., 1999 ME 118, §11, 735 A.2d 965, 969. Because the Legislature chose not to make subsection 201(6) applicable to matters pending at the time of the amendment's enactment, the liabilities of the parties are governed by our decision in Ray v. Carland Constr., Inc., 1997 ME 206, §4, 703 A.2d 648, 650. Pursuant to Ray, when more than one injury contributes to an employee's incapacity and the most recent injury occurred after the effective date of title 39-A, the employee's entitlement to benefits is governed exclusi
Page 1 2 3 Maine Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|