BERUBE v. RUST ENGINEERING
12/13/1995
The employer, Rust Engineering, appeals from a decision of the Workers' Compensation Commission granting the petitions of its employee, Bertram W. Berube, for an award of compensation and to fix the amount to be allowed for a work-related injury sustained by him. Rust contends the Commission erred in determining that, pursuant to 39 M.R.S.A. § 62-B(3)(A)(2) (1989), it is entitled to offset against compensation paid Berube only that monthly amount attributable to Rust's contribution to the pension fund
Berube was an iron worker employed by several employers through his labor union. Each of his employers contributed to the pension plan for union employees based on the individual employee's hours worked for that employer. According to a summary booklet outlining the benefit package, " he entire cost of the Plan is paid by the contributing employers in accordance with their agreements with the union. Employees do not contribute to the Plan."
On September 8, 1990, Berube suffered a work-related knee injury while working for Rust. The parties stipulated that Berube suffers a 35% earning incapacity as a result of the injury and that his pre-injury average weekly wage was $1,060.33, including fringe benefit payments. Berube was laid off in October 1990 and began receiving pension benefits of $1,452 per month.
Berube's petitions filed in 1991 were granted in October 1992. The Commission construed the phrase "provided by the same employer" in subsection (3)(A)(2) to entitle an employer in a multi-employer pension plan to set off only that amount of the monthly pension payments attributable to its contribution to the plan. Accordingly, the Commission determined that $138.00 a month represented that portion of Rust's contribution to Berube's monthly pension benefit of $1,452, Rust is entitled to offset $138 monthly from the compensation paid Berube. Rust's motion for findings of fact and conclusions of law was denied. We granted Rust's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1994-95).
Rust contends that, pursuant to the plain language of 39 M.R.S.A. § 62-B, an employer that partially funds a pension plan with other employers is entitled to offset against any compensation paid an employee pursuant to the Act the entire amount of the employee's monthly pension payments, regardless of that employer's contribution to the plan. Rust argues that, unlike subsection (3)(A)(3), which governs pensions paid for in part by direct employee contributions, subsection (3)(A)(2) does not expressly allow for an apportionment of the employer's offset.
Subsection 62-B provides in pertinent part:
2. Definitions. As used in this section, unless the context
otherwise indicates, the following terms have the following
meanings.
B. "Employee benefit plan" means a self-insurance disability
plan, wage continuation plan, disability insurance plan and a
pension or retirement plan which is funded or paid for by the
employer in whole or in part. It does not include disability
insurance under the United States Social Security Act.
3. Coordination of benefits. Benefit payments subject to this
section shall be reduced in accordance with the following
provisions.
A. The employer's obligation to pay weekly compensation
under section 54-B or 55-B shall be reduced by:
(2) The after tax amount of the payments received or being
received under an employee benefit plan provided by the same
employer by whom benefits under section 54-B or 55-B are
payable if the employee did not contribute directly to the
plan; and<
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