Tripp v. Philips Elmet Corp., 7666

• Decision Date: 17 May 1996
• Docket Number: No. 7666,Docket No. WCB,7666
• Citation: 676 A.2d 927
• Parties: Chester R. TRIPP, Jr. v. PHILIPS ELMET CORP. and Travelers Insurance Co. DecisionLaw95 102.
• Court: Maine Supreme Court

Page 927

676 A.2d 927

Chester R. TRIPP, Jr. v. PHILIPS ELMET CORP. and Travelers Insurance Co.

Decision No. 7666.

Law Docket No. WCB 95 102.

Supreme Judicial Court of Maine.

Argued April 3, 1996.

Decided May 17, 1996.

Justin Leary (orally), Laskoff & Sharon, Lewiston, for Employee.

James E. Fortin (orally), Douglas, Whiting, Denham & Rogers, Portland, for Employer.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

ROBERTS, Justice.

Philips Elmet Corp. appeals from a decision of the Workers' Compensation Board granting employee Chester Tripp's petition for review and concluding that because the employer failed to provide a list of suitable employers pursuant to former section 55-B(1)(B), Tripp is entitled to 100% partial incapacity benefits. 39 M.R.S.A. § 55-B(1)(B) (effective for injuries occurring on or after October 17, 1991, and before January 1, 1993). ¹ Because the Board misconstrued the parties' respective burdens in cases when a partially incapacitated employee seeks 100% incapacity benefits, we vacate the decision of the Board.

Tripp suffered a carpal tunnel injury on November 18, 1991, while employed by Philips Elmet. In a prior decision, Tripp was awarded short-term total and ongoing 25% benefits, based in part on his failure to conduct a good faith work search. Tripp filed a petition for review in January 1994, contending that his incapacity had increased. The Board found that, although his physical incapacity continues at 25%, Tripp was entitled to 100% incapacity benefits because Philips Elmet failed to provide a list of suitable employers and therefore had not met its burden of production after the first forty weeks following the injury. We granted Philips Elmet's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp.1995).

Philips Elmet contends that it was error for the Board to conclude that section 55-B, as amended in 1991, relieves the employee of the burden of seeking work in the employee's community after 40 weeks from the date of the injury. Although many of our decisions discuss the respective burdens of the parties in cases involving injuries that predate October 17, 1991, we have not addressed the parties' burdens pursuant to section 55-B as amended in 1991.

Our early decisions hold that a partially incapacitated employee may receive compensation for total incapacity based on a combination of the work injury and a loss of employment opportunity attributable to that injury. Pelchat v. Portland Box Co., 155 Me. 226, 229-30, 153 A.2d 615, 617-18 (1959); Connelly's Case, 122 Me. 289, 292-93, 119 A. 664, 666 (1923); Ray's Case, 122 Me. 108, 110-11, 119 A. 191, 191-92 (1922). At the time of Ray's Case, the Act provided that "[w]hile the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to three-fifths the difference between his weekly wages, earnings or salary, before the injury and the weekly wages, earnings or salary which he is able to earn thereafter...." P.L.1919, ch. 238 (emphasis added). This statutory language has remained essentially unchanged to the present day. See, e.g., 39-A M.R.S.A. § 213 (Supp.1995); 39 M.R.S.A. § 55-B (Supp.1992). In Ray's Case, we held that the term "incapacity for work" means not merely physical incapacity, but also the lack of employment resulting from the injury. Ray's Case, id. at 111, 119 A. at 192; Levesque v. Shorey, 286 A.2d 606, 609 (Me.1972). More importantly, partial benefits are calculated by reference to what the employee is "able to earn" following an injury. 39-A M.R.S.A. § 213; 39 M.R.S.A. § 55-B; P.L.1919, ch. 238 (emphasis added). It is implicit in the phrase "able to earn" that the determination of partial incapacity requires more than an examination of the employee's actual physical limitations or actual post-injury earnings. Ray's Case, 122 Me. at 111, 119 A. at 192. The inquiry is the degree to which the "persisting effects of [a] work-related injury are preventing [the employee] from engaging in remunerative work." Ibbitson v. Sheridan Corp., 422 A.2d 1005, 1008 (Me.1980).

The so-called work-search rule was a judicially created doctrine designed to allocate the burdens of production and of proof in cases when a partially incapacitated employee claims total incapacity benefits. The purpose of the rule is to aid in the calculation of a partially incapacitated employee's "ability to earn." We have stated the rule as follows:

On an employer's petition for review, the employer bears the burden of proof to establish the employee's earning capacity; however, when the employer shows 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. Ibbitson v. Sheridan Corp., 422 A.2d 1005, 1009 (Me.1980). If the employee meets the burden of production, the employer's "never shifting" burden of proof may require it to show that it is more probable than not that there is available work within the employee's physical ability. Id. at 1009-10; Poitras v. R.E. Glidden Body Shop, 430 A.2d 1113, 1118 (Me.1981).

Dumond v. Aroostook Van Lines, 670 A.2d 939, 941-42 (Me.1996). The only difference in cases involving an employee's petition for award or review is that the partially incapacitated employee seeking 100% benefits must bear the ultimate burden of proof to show that work is unavailable as a result of the injury. See Harrington v. Goodwin's Chevrolet, Inc., 400 A.2d 358, 361 (Me.1979) (petition for award); Theriault v. Walsh Constr. Co., 389 A.2d 317, 320 (Me.1978) (petition for further compensation).

The work-search rule is not a particularly appropriate name for the doctrine. There was no general duty of employees to search for work under the former Act. The failure to perform a work-search was not a basis for completely depriving an employee of benefits; the work-search rule merely allocated the burdens of proof and production in cases in which a partially incapacitated employee seeks to obtain or to retain benefits for 100% incapacity. Moreover, the employee was not required to provide specific evidence of a work-search but could rely on any competent evidence that tended to show the unavailability of work, such as labor market evidence. Dumond, 670 A.2d at 941-42; Poitras v. R.E. Glidden Body Shop, 430 A.2d 1113, 1118 (Me.1981); Warren v. Vinalhaven Light & Power Co., 424 A.2d 711, 714-15 (Me.1981).

The work-search rule was expressly codified in 1989 when former section 55-B was amended to add the following language:

For purposes of determining an injured employee's degree of incapacity under this section, the commission shall consider the availability of work that the employee is able to perform in and around the employee's community and the employee's ability to obtain such work considering the effects of the employee's work-related injury. If no such work is available in and around the employee's community or if the employee is unable to obtain such work in and around the employee's community due to the effects of a work-related injury, the employee's degree of incapacity under this section is 100%.

P.L.1989, ch. 575. The purpose of that amendment was not to alter the prior judge-made doctrine, but to clarify that the employee's ability to earn must be determined with reference to the availability of employment in the local community and not the state-wide labor market. L.D. 924, Statement of Fact (114th Legis.1989); Dumond, 670 A.2d at 942 n. 2.

In 1991 the above-quoted paragraph was repealed and replaced by the enactment of L.D.1981 (115th Legis.1991) that contained the language at issue in this appeal:

1. Evaluation standards. This subsection governs the determination of an injured employee's degree of incapacity under this section.

A. During the first 40 weeks from the date of the injury, the commission shall consider the availability of work that the employee is able to perform in and around the employee's community and the employee's ability to obtain such work considering the effects of the employee's work-related injury. If no such work is available in and around the employee's community or if the employee is unable to obtain such work in and around the employee's community due to the effects of a work-related injury, the employee's degree of incapacity under this section is 100%. The employee has the burden of production and proof on the availability of work.

B. After the first 40 weeks from the date of injury the employer has the burden of production regarding the employee's capacity to perform work and the burden of producing a list of suitable and available job positions within the State. The employee has the burden of production regarding a good-faith exploration of the positions on the list. The employee bears the ultimate burden of proof to show that the employee was not hired for one of the positions. The employer shall pay all reasonable expenses incurred by the employee in conducting the exploration of the positions on the list provided by the employer.

P.L.1991, ch. 615, § D-7, codified as 39 M.R.S.A. § 55-B(1)(B) (effective for injuries occurring on or after October 17, 1991, and before January 1, 1993).

The hearing officer concluded that because the employer bears the burden to produce "a list of suitable and available job positions within the State," and because "the State" must necessarily include the local community (at least in cases involving Maine residents), section 55-B(1)(B) relieves the employee of the burden to show the unavailability of work in the local community after forty weeks following the injury. The burden then shifts to the employer not merely to show the availability of employment in the local community or the state, but also to provide a list of positions and to reimburse the employee for reasonable expenses...