Folsom v. New England Tel. & Tel. Co.

• Decision Date: 30 March 1992
• Citation: 606 A.2d 1035
• Parties: Dale A. FOLSOM v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY.
• Court: Maine Supreme Court

Page 1035

606 A.2d 1035

Dale A. FOLSOM v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY.

Supreme Judicial Court of Maine.

Argued Sept. 19, 1991.

Decided March 30, 1992.

Jeffrey L. Cohen (orally) McTeague, Higbee, Libner, MacAdam, Case & Watson, Topsham, for employee.

John J. Aromando (orally), Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, for employer.

Before ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, JJ.

COLLINS, Justice.

Dale Folsom appeals from a decision of the Appellate Division of the Workers' Compensation Commission, reversing a Commission decision that denied New England Telephone's (NET) second petition for review of incapacity. Folsom contends that the Appellate Division erred in granting NET's petition because NET failed to introduce comparative medical evidence showing a change in his earning capacity. We affirm the Appellate Division.

Folsom injured his back while working as a lineman for NET. He was compensated for total incapacity from the time of the injury until March of 1977, when he took a clerical job with NET. In 1978, Folsom's injury forced him to leave his clerical position with NET and NET agreed to compensate him for total incapacity. In July of 1979, NET filed a petition for review. The Commission denied the petition, finding that although Folsom's disability had decreased, total compensation should continue in light of his good-faith work search. Folsom appealed the Commission's finding as to the decrease in his degree of disability. We held that because no medical evidence had been presented, there was insufficient evidence in the record to support the Commission's finding, vacated the judgment and remanded the matter to the Commission for a redetermination of its compensation award. Folsom v. New England Telephone & Telegraph Co., 432 A.2d 1244 (Me.1981) (Folsom I).

In 1986, NET filed a second petition for review. The Commission found that Folsom had developed a successful auction business and obtained a real estate license. The Commission granted NET's petition for review because it found Folsom had regained his pre-injury earning capacity. Upon Folsom's motion for further findings of fact and conclusions of law, the Commission decided it had erred as a matter of law. The Commission decided that the second petition for review could not be granted because NET had failed to introduce comparative medical evidence, and that such evidence, as a matter of law, was necessary to prove a change in Folsom's earning capacity. Nonetheless, the Commission reaffirmed its finding that Folsom's earning capacity had increased since NET's first petition for review.

NET appealed the decree. The Appellate Division reversed the holding of the Commission and ordered NET's petition granted. Relying on the Commission's original findings, the Appellate Division found that Folsom's earning capacity had increased since the time of the first petition. The Appellate Division concluded that the economic proof offered by NET was sufficient as a matter of law to prove a change in earning capacity and no comparative medical evidence was required in the circumstances. Folsom petitioned for appellate review and his petition was granted.

I

Folsom contends that because NET has already sought and obtained a determination under § 100, its petition must be brought under § 100(2)(B). His argument is consistent with the position taken by the Appellate Division in the two cases in which it addressed this issue, Cormier v. Borderview Nursing Home, Dec. No. 88-162 (Me.App.Div., Aug. 31, 1988), and Whitt v. Coastal Steel Erectors, Dec. No. 83-71 (Me.App.Div., Oct. 4, 1983), and we agree with this interpretation of the statute.

II

Folsom contends that the language of § 100(2)(B) is clear and unambiguous. The version of the statute applicable to these proceedings provides, in pertinent part that A. On the first petition for review brought by a party to an action, the commissioner shall determine appropriate relief, if any, under this section by determining the employee's present degree of incapacity. For purposes of a first petition brought under this section, evidence of the employee's medical condition at the time of an earlier determination or approved agreement is relevant only if it tends to prove the present degree of incapacity.

B. Once a party has sought and obtained a determination under this section, it is the burden of that party in all proceedings on his subsequent petition under this section to prove by comparative medical evidence that the employee's earning capacity attributable to the work-related injury has changed since that determination.

39 M.R.S.A. § 100(2)(A), (B) (1989 & Supp.1990). These provisions were enacted in 1981. Before 1981, the comparative medical evidence requirement was not part of the statute but a judicially created doctrine that put the burden of proving a change in the employee's disability on the moving party under § 100. Dillingham v. Andover Wood Products, Inc., 483 A.2d 1232, 1235 (Me.1984). ¹

Folsom maintains that the plain language of the statute provides that a change in earning capacity must be proved by comparative medical evidence in any subsequent petition for review. Comparative medical evidence is "expert medical testimony which bear[s] directly upon the comparison between [the employee's] former and his present disability." Van Horn v. Hillcrest Foods, Inc., 392 A.2d 52, 54 (Me.1978) (quoting, 3 Larson, Workmen's Compensation Law ch. XV, § 81, p. 470 (1976)). Folsom argues that the Appellate Division erred in granting NET's petition because NET failed to introduce any expert medical testimony.

The Appellate Division concluded that the 1981 amendment had incorporated the doctrine into the statute. It reasoned that because the requirement was a judicially created doctrine and had become a legal term of art, when the legislature adopted the doctrine, it also adopted several judicially created exceptions to it. The Appellate Division went on to find that this case falls within the scope of one of those exceptions. We agree that the exceptions remain viable, but for a different reason.

When the legislature enacted § 100(2)(B), it did not adopt the comparative medical evidence doctrine, it merely created an additional exception to the doctrine, intended to complement the existing judicially crafted exceptions. We have previously noted that "[a]t most, the 1981 revision of § 100 affects the burden of proving a change in earning capacity on a party's first petition for review." Dillingham, 483 A.2d at 1235. In other words, the '81 amendment did not eliminate the judicially crafted exceptions to the doctrine or incorporate them into the statute. It created an additional exception, making the doctrine inapplicable on first petitions for review.

One of these judicially crafted exceptions, set forth in Haney v. Lane Construction Corp., provides that where the original agreement is premised partially on a physical disability and partially on a lack of economic opportunity, the moving party need not offer comparative medical evidence when attempting to prove change in economic opportunity and not a change in the degree of physical disability. Haney v. Lane Construction Corp., 422 A.2d 1292, 1295-96 (Me.1980). In Haney, we were forced to recognize that comparative medical evidence could not logically be required where a party was seeking to establish a change in work capacity based on a change in economic opportunity.

The present case represents a logical extension of our decision in Haney. At any given point in time, work capacity may appear to be controlled by physical ability, but it is actually a dynamic and changing measure. When viewed over the lifetime of an injured worker, it is evident that work capacity is determined not only by physical ability but also by a number of other factors, including changes in the skills and aptitude of the worker and economic and technological changes in the work place. An injured worker, unable to engage in strenuous physical employment, may, over time, develop other skills necessary for employment in a less physically-demanding occupation. On the other hand, an injured worker who, despite a physical disability, retains work capacity because of the availability of employment opportunities within the worker's post-injury capacity, can see those opportunities eclipsed by subsequent economic developments. In each case, review of work capacity should be based on comparative evidence of change in the actual factors affecting work capacity.

The doctrine was formulated to address our concerns for res judicata. While perhaps initially appropriate, the term "comparative medical evidence doctrine" has become a misnomer. The doctrine was so identified primarily because the cases that gave impetus to its creation involved medical evidence. The focus of the doctrine has always been to prevent the use of one set of facts to reach different conclusions. Requiring the presentation of comparative evidence establishing a change in a party's circumstances, physical or economic, adequately addresses those concerns. Rigid insistence on the presentation of comparative medical evidence does nothing to further the purpose of the doctrine and leads to absurd results. Such an interpretation forces us to declare that Folsom remains one hundred percent physically disabled and completely unable to work when the facts clearly establish that he is gainfully employed.

III

After the Commission initially found an increase in earning capacity, Folsom requested further findings of fact and conclusions of law. The Commission concluded that it had made a legal error and reversed itself. The Commission did make specific findings pertaining to the comparative medical evidence requirement, but did not issue any specific findings pertaining to its determination that Folsom had regained his pre-injury earning capacity. Folsom did not request...