Bernard v. Mead Publishing Paper Division

2001 ME 15, 765 A.2d 576, 2001 Me. LEXIS 17
CourtSupreme Judicial Court of Maine
DecidedJanuary 24, 2001
StatusPublished
Cited by14 cases

This text of 2001 ME 15 (Bernard v. Mead Publishing Paper Division) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernard v. Mead Publishing Paper Division, 2001 ME 15, 765 A.2d 576, 2001 Me. LEXIS 17 (Me. 2001).

Opinions

CLIFFORD, J.

[¶ 1] Mead Publishing Paper Division appeals from a decision of a Hearing Officer of the Workers’ Compensation Board granting the petition for restoration of John Bernard and awarding ongoing partial benefits. Mead contends: (1) that Bernard is not entitled to benefits for incapacity because he did not experience a reduction in wages folldwing his injury and was terminated from his employment for fault, and (2) that it was error for the Hearing Officer to apply the inflation factor to adjust Bernard’s pre-injury wage, instead of first calculating the employee’s weekly benefits based on a comparison of his unadjusted wages and then applying the inflation factor to the amount of benefits. We affirm the Hearing Officer’s determination of incapacity, but agree with Mead that the Hearing Officer erred in the calculation of the inflation adjustment. Accordingly, we vacate the decision.

[¶ 2] Bernard suffered a work-related injury on May 19, 1987, when he was [578]*578struck on the ankle by a five-hundred pound valve. The injury ultimately led to three ankle surgeries. At the time of his injury, Bernard was employed by Mead as a supervisor of an in-house construction and repair crew. After the injury, Bernard returned to Mead and worked for seven years without any reduction in his pre-injury wages. As a supervisor, Bernard was able to, and did, adjust his duties to accommodate the physical limitations resulting from his injury. Those limitations precluded Bernard from engaging in excessive walking and stair or ladder climbing. Sometime after 1991, Bernard’s position was eliminated and he was transferred to the mill “Planning Department,” again without a reduction in pay. Bernard’s flexibility in his supervisory role again permitted him to minimize his duties and accommodate his work restrictions.

[¶ 3] Bernard was subsequently terminated from employment in 1998 for violating a company no-smoking policy.1 He filed a petition for restoration in September of 1998. After a good faith work search, he obtained temporary part-time employment doing carpentry and remodeling work at Harvard University in March of 1999, establishing a post-injury work-capacity of $560 per week.

[¶4] The Hearing Officer granted Bernard’s petition for restoration in August of 1999. Finding that Bernard was able to adjust his post-injury work to accommodate his injury, the Hearing Officer rejected Mead’s argument that Bernard’s post-injury employment for seven years with no loss of earnings required a finding that he suffered no loss of earning capacity. See Dufour v. Internal Med. Assocs., 1998 ME 169, ¶¶ 5-7, 713 A.2d 339, 340. The Hearing Officer also concluded that because Bernard’s injury occurred prior to 1993 and his entitlement to partial benefits is governed by former title 39 M.R.S.A. § 55-A, repealed by P.L.1987, ch. 559, Pt. B, §§ 29, 30, codified as 39 M.R.S.A. § 55-B (1989) (effective Nov. 20, 1987), repealed by P.L.1991, ch. 885, § A-7, his termination from employment for fault, even if he had engaged in conduct justifying termination, did not require a termination of benefits. See Cousins v. Georgia-Pacific Corp., 599 A.2d 73, 74 (Me.1991).

[¶5] The parties agree that Bernard’s average weekly wage at the time of his injury was $870.15. In order to adjust Bernard’s benefits for inflation pursuant to former 39 M.R.S.A. § 55-A repealed by P.L.1987, ch. 559, Pt. B, § 29, the Hearing Officer applied the inflation adjustment to his pre-injury wage to arrive at an adjusted average weekly wage of $1360. The Hearing Officer then calculated two-thirds of the difference between Bernard’s adjusted pre-injury weekly wage of $1360 and his post-injury earning capacity of $560 a week to arrive at a weekly compensation of $533.33.

[¶6] The Hearing Officer granted the employer’s motion for further findings of fact, but did not significantly alter his decision. We granted Mead’s petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Pamph.1999).

I.

[¶ 7] Mead contends that, because Bernard returned to work after his injury with no reduction in his pre-injury wage, it was error for the Hearing Officer to conclude that Bernard suffered a loss of earning capacity as a result of his injury. We rejected a similar argument in Dufour, 1998 ME 169, ¶¶ 5-7, 713 A.2d at 340-41. In Dufour, the employee suffered a carpal tunnel injury while employed as an office supervisor. Id. ¶ 2, 713 A.2d at 339. She returned to her supervisory position without a reduction of earnings and accommodated her injury by “reduc[ing] typing and keyboard work by delegating data entry [579]*579assignments to' other employees.” Id. As we stated in Dufour, “ ‘evidence of actual wages is a useful indicator [of post-injury earning capacity], not a talisman’ and ‘the mere fact, standing alone, that the employee is earning the same after the injury as before will not bar an award for partial disability.’ ” Id. ¶ 5, 713 A.2d at 340 (quoting Severy v. S.D. Warren Co., 402 A.2d 53, 55 (Me.1979)). We concluded that the ability of the employee to earn her pre-injury wage did not preclude a finding of loss of earning capacity when the employee was able, under the special circumstances of her employment, to accommodate her work restrictions. Id. at ¶¶ 5-7, 713 A.2d at 340-41.

[¶ 8] Bernard, like the employee in Duf-our, was a supervisor who could accommodate his physical limitations resulting from the injury by effectively delegating all but “light-duty” assignments. It was not error for the Hearing Officer to find that Bernard continues to suffer a work-incapacity, notwithstanding his return to employment at his pre-injury wage for several years following his injury.

[¶ 9] Mead contends that Bernard’s termination for fault requires a finding that Bernard is not incapacitated as a result of his injury. As the Hearing Officer concluded, Bernard was injured in 1987 and his entitlement to partial benefits is governed by former 39 M.R.S.A. § 55-A, repealed by P.L.1987, ch. 559, Pt. B, § 29. Pursuant to former title 39, an employee’s termination for fault does not constitute grounds for discontinuing workers’ compensation benefits. See Bureau v. Staffing Network, Inc., 678 A.2d 583, 589-90 (Me.1996); Cousins v. Georgia-Pacific Corp., 599 A.2d 73, 74 (Me.1991); Cote v. Great Northern Paper Co., 611 A.2d 58, 59 (Me.1992). Accordingly, we affirm the Hearing Officer’s determination that Bernard remains incapacitated.

II.

[¶ 10] Mead also contends that the Hearing Officer erred in its computation of the inflation adjustment. Former 39 M.R.S.A § 55-A provides, in pertinent part:

While the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to % the difference, due to the injury, between his average gross weekly wages, earnings or salary before the injury and the weekly wages, earnings or salary which he is able to earn after the injury, ....

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Bluebook (online)
2001 ME 15, 765 A.2d 576, 2001 Me. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-v-mead-publishing-paper-division-me-2001.