Monaghan v. Jordan's Meats

• Decision Date: 31 July 2007
• Docket Number: Docket: WCB-06-97.
• Citation: 2007 ME 100,928 A.2d 786
• Parties: Patricia MONAGHAN v. JORDAN'S MEATS et al.
• Court: Maine Supreme Court

928 A.2d 786

2007 ME 100

Patricia MONAGHAN v. JORDAN'S MEATS et al.

Docket: WCB-06-97.

Supreme Judicial Court of Maine.

Argued: November 28, 2006.

Decided: July 31, 2007.

James MacAdam, Esq. Anna Priluck, Esq. (orally), MacAdam Law Offices, Portland, for the Employee.

Kevin M. Gillis, Esq. (orally), Troubh, Heisler, Portland, Robert J. Piampiano, Esq., Piampiano Law Office, Yarmouth, for the Employer.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.^*

SAUFLEY, C.J.

[¶ 1] In this workers' compensation appeal, we are asked to revisit the "work search rule" and to decide whether, pursuant to that rule, evidence that the injured employee made unsuccessful job inquiries at 147 potential employers compels a determination that work is unavailable to her in her local community, thereby requiring an award of 100% partial incapacity benefits. The Workers' Compensation Board hearing officer (Jerome, HO), finding Monaghan's work search to be insufficient, awarded only partial benefits. We review the state of the law regarding the work search rule, and, in light of our analysis, we vacate the hearing officer's decision and remand for further consideration.

I. FACTUAL BACKGROUND

[¶ 2] Patricia Monaghan worked for Jordan's Meats from 1997 until the plant closed in 2005. She was hired as a packer on a production line. She eventually became a team leader, supervising other line employees. Before going to work at Jordan's Meats, she did piece work in a shoe factory for eleven years, and worked as a finance clerk for the City of Westbrook for an additional ten years. She has, from time to time, earned extra money reselling items at flea markets. She resides in the greater Portland area and has a GED.

[¶ 3] On September 19, 2003, Monaghan injured both knees when she tripped and fell over a fan at work. She was able to continue working for Jordan's Meats within her medical restrictions, and suffered no earning incapacity until after the plant closed in 2005. Monaghan filed a petition to fix and for award of workers' compensation benefits. Although she has a full-time work capacity, she continues to be on work restrictions. Her restrictions require that she must vary position and not stand constantly, not climb ladders, stairs or ramps, not lift more than twenty-five pounds, and avoid squatting and kneeling.

[¶ 4] Monaghan sought "100% partial incapacity benefits." She attempted to establish that work was unavailable to her in her local community as a result of her injury with evidence of a work search. She presented evidence that she had contacted 147 employers regarding available work, that she took typing and computer classes in an effort to improve her prospects, but did not secure employment.

[¶ 5] Jordan's Meats submitted a labor market report that identifies fifty advertised jobs in the local labor market within Monaghan's restrictions, and contains the opinion that "there is and has been a stable labor market for Ms. Monaghan."

[¶ 6] The hearing officer concluded that Monaghan continues to suffer partial incapacity from the knee injury, but was not persuaded by the evidence that work within Monaghan's restrictions is unavailable to her as a result of her work injury. Thus, she awarded Monaghan ongoing partial benefits based on her 2003 average weekly wage, less an imputed earning capacity of $300 per week, with an offset for any unemployment benefits received.

[¶ 7] Monaghan filed a request for additional findings of fact and conclusions of law, which the hearing officer denied. She then filed a petition for appellate review, which we granted pursuant to 39-A M.R.S. § 322 (2006) and M.R.App. P. 23.

II. DISCUSSION

[¶ 8] Monaghan asks us to consider whether a particular quantum of evidence, in this case 147 employer contacts and job retraining efforts, should compel the conclusion that a work search is adequate as a matter of law pursuant to the work search rule. In order to address this question, we examine the nature and history of the work search rule, and the manner in which we have evaluated the adequacy of work searches to date.

A. The "Work Search" Rule

[¶ 9] Whether an injured employee receives total or partial incapacity benefits depends on the extent to which that employee retains the ability to earn income after a workplace injury. 39-A M.R.S. §§ 212, 213, 214 (2006). The employee's post-injury earning capacity is based on both "(1) the employee's physical capacity to earn wages, and (2) the availability of work within the employee's physical limitations." Morse v. Fleet Fin. Group, 2001 ME 142, ¶ 5, 782 A.2d 769, 771. An employee who retains some ability to earn may nevertheless be entitled to receive the full amount of workers' compensation benefits, with no deduction for earning capacity, if the persisting effects of the work-related injury prevent the employee from engaging in any remunerative work. Tripp v. Philips Elmet Corp., 676 A.2d 927, 929 (Me.1996).

[¶ 10] An injured employee whose capacity for employment exists but is limited may be entitled to receive the full amount of workers' compensation either as "total" incapacity benefits or as "100% partial" incapacity benefits. The critical distinction between total incapacity and 100% partial incapacity is found in the available duration of the benefits. Those benefits that fall within the 100% partial category are potentially subject to the maximum-week limitation in section 213, while total incapacity benefits awarded pursuant to section 212 would not be. Alexander v. Portland Natural Gas, 2001 ME 129, ¶ 22, 778 A.2d 343, 351.

[¶ 11] There are three ways in which an injured employee can show entitlement to the full amount of workers' compensation benefits.¹ First, an employee who demonstrates a total physical incapacity, that is, the medically demonstrated lack of the physical ability to earn, can prove entitlement to "total" incapacity benefits pursuant to section 212 without a showing of any work search or other evidence that work is unavailable. Morse, 2001 ME 142, ¶ 8, 782 A.2d at 772.

[¶ 12] Second, in limited situations, an employee suffering only partial incapacity to earn may be entitled to "total" benefits pursuant to section 212 if the employee can establish both (1) the unavailability of work within the employee's local community, and (2) the physical inability to perform full-time work in the statewide labor market, regardless of availability. Id.; Alexander, 2001 ME 129, ¶ 19, 778 A.2d at 351.

[¶ 13] Third, a partially incapacitated employee may be entitled to "100% partial" incapacity benefits pursuant to section 213 based on the combination of a partially incapacitating work injury and the loss of employment opportunities that are attributable to that injury. Morse, 2001 ME 142, ¶ 6, 782 A.2d at 771. In order to obtain the 100% benefit, it must be established, pursuant to the "work search rule" that work is unavailable within the employee's local community as a result of the work injury. Id. ¶ 7, 782 A.2d at 772.

[¶ 14] The "work search rule" is a judicially created doctrine designed to allocate the order and presentation of proof related to the availability of work.² Tripp, 676 A.2d at 929. When the employee is the petitioning party, as in this case, the employee has the ultimate burden of proof to show that work is unavailable as a result of the work injury within the employee's local community. Morse, 2001 ME 142, ¶ 7, 782 A.2d at 772.

[¶ 15] In a case in which the employer files a petition for review of incapacity, once the employer demonstrates that the employee has regained partial work capacity, the employee bears a burden of production to show that work is unavailable as a result of the injury, and if the employee meets that minimal burden, the employer's "never shifting" burden of proof may require it to show that it is more probable than not that there is work available in the community within the employee's physical ability. Tripp, 676 A.2d at 929.

[¶ 16] We have noted that the term "work search rule" is somewhat of a misnomer because the rule does not limit the employee's ability to prove unavailability of work to demonstration of unsuccessful work searches alone; any competent and persuasive evidence to show the unavailability of work in his or her local community is acceptable, including labor market surveys, or other credible evidence regarding availability of work for a particular employee in the local community. Id. Often, however, a work search is the most straightforward and persuasive method of demonstrating the availability of work, or lack thereof.

[¶ 17] When an employee attempts to show the unavailability of work through work search evidence, the work search must be adequate as a matter of law. Morse, 2001 ME 142, ¶ 12, 782 A.2d at 773. We have described an adequate work search as follows:

[Work search] evidence should disclose that the worker made a reasonable exploration of the labor market in his community for the kind of work he has regained some ability to perform and that he was unable to obtain such work for remuneration either because no stable market for it existed or, if there was such a market, the work was not available to him by reason of the continuing limitations, caused by his work-related injury, upon his ability to perform it.

Ibbitson v. Sheridan Corp., 422 A.2d 1005, 1009 (Me.1980). Further, work search evidence should:

give a rational person reasonable cause to believe that the work-related injury this particular worker sustained is preventing him from obtaining remunerative work "ordinarily" available in the competitive labor market of his community. Such reasonable cause will arise where the worker's exploration of the labor market in his community discloses a number of search experiences manifesting a "pattern", ... from which it becomes reasonable to infer either that a stable market for the kind of work the worker has regained some...