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Bourgoin v. Levesque2/1/1999
Reporter of Decisions
Argued: November 30, 1998
Majority: WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER and CALKINS, JJ.
Dissent: RUDMAN, J.
Russell Bourgoin appeals from a decision of the Workers' Compensation Board granting his petition for permanent impairment benefits. The Board found that Bourgoin was entitled to a 23% whole person permanent impairment resulting from his work-related back injury. Bourgoin argues that the Board erred by failing to award permanent impairment benefits for his pre-existing diabetic condition. We affirm the Board's decision.
Bourgoin suffered a back injury related to his employment at J.P. Levesque & Sons on December 12, 1988. In 1997 Bourgoin petitioned the Board to determine the extent of permanent impairment. Pursuant to the law in effect on the date of his injury, 39 M.R.S.A. 56-B (1989), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8, the Board found that this injury resulted in a 23% permanent impairment. The Board also found that Bourgoin had a pre-existing diabetic condition which resulted in a 30% permanent impairment. The Board granted Bourgoin's petition, but it awarded benefits only for the 23% permanent impairment attributable to his work-related injury. We granted Bourgoin's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1998). The only issue presented by this appeal is whether the Board erred in holding that Bourgoin was not entitled to benefits for the 30% permanent impairment attributable to his diabetes.
Prior to 1987, permanent impairment benefits were calculated according to a detailed schedule of benefits corresponding to the loss of specifically enumerated body parts. See 39 M.R.S.A. §§ 56, 56-A (Pamph. 1986), repealed and replaced by P.L. 1987, ch. 559, pt. B, § 33 (effective Nov. 20, 1987). In 1987 this "body part" approach to the permanent impairment calculation was repealed and replaced with a "whole body" approach. P.L. 1987, ch. 559, pt. B, § 33 (effective Nov. 20, 1987) (codified at 39 M.R.S.A. § 56-B (1989)), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8 (effective January 1, 1993). This "whole body" statute, former section 56-B, provides in pertinent part:
"1. Weekly benefit. In the case of permanent impairment, the employer shall pay the injured employee a weekly benefit equal to 2/3 of the state average weekly wage . . . for the number of weeks shown in the following schedule:
"A. One week for each percent of permanent impairment to the body as a whole from 0 to 14%;
"B. Three weeks for each percent of permanent impairment to the body as a whole from 15% to 50%;
"C. Four and 1/2 weeks for each percent of permanent impairment to the body as a whole from 51% to 85%; and
"D. Eight weeks for each percent of permanent impairment to the body as a whole greater than 85%." Id.
In Dumond v. Aroostook Van Lines, 670 A.2d 939, 943 (Me. 1996), we interpreted former section 56-B. Dumond suffered a workp; related injury in 1990 which the Board found resulted in a 5% whole body permanent impairment. Id. at 941. Dumond also had a pre-existing injury which the Board found resulted in a 23% whole body permanent impairment. Id. We held that the Board erred when it failed to add the 5% impairment to the 23% pre-existing impairment for the purpose of calculating the amount of benefits. Id. at 943. We held that, "the Board must consider the permanent impairment attributable to previous injuries when determining whether the impairment falls within the more serious, high percentage of whole body impairments pursuant to former section 39 M.R.S
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