 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Pendexter v. Tilcon of Maine Inc.2/17/1999
Reporter of Decisions
Argued: February 2, 1999
Barry Pendexter appeals from a decision of the Workers' Compensation Board granting, in part, his petition for restoration. The issue in this appeal is whether the workers' compensation retiree presumption applies to an employee who returns to work after an initial period of retirement. 39-A M.R.S.A. § 223 (Supp. 1998). We affirm.
Pendexter suffered a work-related low back and left leg injury on October 16, 1985, while employed by Tilcon as a road paving foreman and received short-term incapacity benefits until February 1986. His employment at Tilcon involved a seasonal hiatus between December and March, when he would receive $120 a week to "stay at home." During paving season, however, he would work 10 to 14 hours a day for 5 1/2 days a week, or roughly 60 hours a week. Pendexter retired from Tilcon in October 1990 at age 55, a retirement, the hearing officer found, that had been planned for a couple of years. He then began receiving non-disability retirement pension benefits in the amount of $491 a month. Pendexter moved to Florida after his retirement. He remained unemployed for roughly 2 years, except for a short-term return to work for six weeks as a medical courier. In April 1992, he began full-time employment delivering auto parts, earning approximately $240 a week. In April 1993 Pendexter suffered a second work injury to his back and remained out work until August 1993. He received short-term compensation from his Florida employer pursuant to Florida workers' compensation law for the period that he missed work.
Pendexter returned to work for his Florida employer from August 1993 until May 1995, when he returned to Maine. One month after his return to Maine, Pendexter found part-time, seasonal work as a chamber person at a motel, earning approximately $116 to $155 a week. After his seasonal lay off in October 1995, Pendexter suffered congestive heart failure and has not returned to work. Pendexter does not dispute the Board's finding that the heart attack was an independent intervening cause of his ongoing incapacity and, therefore, on appeal he does not seek continuing incapacity benefits after January 1996.
While still employed in Florida, Pendexter filed a petition for restoration with the Maine Workers' Compensation Board in August of 1994. The Board concluded that the retiree presumption applies to his initial retirement based on a finding that Pendexter had terminated active employment prior to the receipt of his non-disability pension. The retiree presumption provides:
"§ 223. Presumption of earnings loss for retirees
1. Presumption. An employee who terminates active employment and is receiving non-disability pension or retirement benefits under either a private or governmental pension or retirement program, including old-age benefits under the United States Social Security Act, 42 United States Code Sections 301 to 1397f, that was paid by or on behalf of an employer from whom weekly benefits under this Act are sought is presumed not to have a loss of earnings or earning capacity as the result of compensable injury or disease under this Act. This presumption may be rebutted only by a preponderance of evidence that the employee is unable, because of a work-related disability, to perform work suitable to the employee's qualifications, including training or experience. This standard of disability supersedes other applicable standards to determine disability under this Act.
"2. Construction. This section may not be construed as a bar to an employee receiving medical benefits under section 206 upon the establishment of a causal relationship betwe
Page 1 2 3 4 Maine Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|