Foley v. Verizon

931 A.2d 1058
CourtSupreme Judicial Court of Maine
DecidedSeptember 11, 2007
StatusPublished
Cited by8 cases

This text of 931 A.2d 1058 (Foley v. Verizon) 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
Foley v. Verizon, 931 A.2d 1058 (Me. 2007).

Opinion

CALKINS, J.

[¶ 1] Christine R. Foley appeals from a decision of a hearing officer of the Workers’ Compensation Board (Collier, HO), reducing Kevin B. Foley’s benefits. The basis for the reduction is the coordination of benefits provision, 39-A M.R.S. § 221 (2006), and the receipt of a lump-sum pension benefit. Foley contends that the hearing officer erred in treating the lump-sum pension benefit as though it were being received in weekly installments. Foley also argues that the hearing officer erred in finding that Verizon did not violate the “fourteen-day rule,” Me. W.C.B. Rule, ch. 1, § 1. Foley further contends that the hearing officer erred in concluding that Verizon did not violate 39-A M.R.S. § 221(3)(D) (2006) when it reduced the benefits without a formal determination of the benefit amount and without giving twenty-one days notice, pursuant to 39-A M.R.S. § 205(9)(B)(1) (2006). We affirm the hearing officer’s decision.

I. BACKGROUND

[¶ 2] Kevin Foley began working for Verizon’s predecessors in 1972. He injured his right shoulder while working for Verizon on April 26, 2003. After the injury, Verizon began paying him total incapacity benefits pursuant to a memorandum of payment filed with the Board, indicating that it was making “voluntary payment pending investigation.”

[¶ 3] Effective May 3, 2004, Foley retired from Verizon, accepting a severance/pension package. He received a lump sum payment of his pension benefits from Verizon in the amount of $355,610.12. That same day, Foley began receiving a monthly Social Security supplement payment from Verizon in the amount of $500.

[¶ 4] Upon Foley’s retirement, and without notice to him, Verizon stopped paying the weekly workers’ compensation benefit. Foley contacted the claims adjuster who told him that he could not receive both pension and workers’ compensation benefits. Foley’s attorney sent letters to Verizon contesting the discontinuance. Foley filed a petition for award and order of [1060]*1060payment on September 24, 2004. Verizon filed a notice of controversy on October 7, 2004.

[¶ 5] A hearing was held. No testimony was taken, but the parties agreed to a statement of facts, and both submitted various exhibits. The parties stipulated that Foley’s average weekly wage at the time of his injury was $1228.16, and his compensation rate was $773.95. Verizon had been paying weekly incapacity benefits to Foley in the amount of $491.35. The parties agreed that Verizon gave no notice to Foley before stopping his workers’ compensation benefits. The parties stipulated to the retirement date and amount of the lump sum pension benefit paid by Verizon. They agreed that as of November 8, 2005, Foley had a post-injury earning capacity of $400 weekly.2

[¶ 6] The hearing officer determined that Verizon’s unilateral reduction of Foley’s workers’ compensation benefits did not violate section 221(3)(D) and that Foley did not make a clear assertion of benefits that triggered the fourteen-day rule until his lawyer’s letter of September 23, 2004, to which Verizon responded within fourteen days. On the coordination of benefits issue, the hearing officer rejected the “payment holiday” proposal by Verizon and also rejected Foley’s proposal of calculating the after-tax value of his lump sum pension payment, spread out over his life expectancy of 23.8 years. Instead, the hearing officer used the monthly amount of the pension benefit that Foley would have received if he had not opted to take a lump sum, as the basis for a calculation using the weekly benefits tables promulgated by the Board. This resulted in a determination that Foley was entitled to no workers’ compensation benefits at the time he received his lump sum pension on May 3, 2004. Because of increases in the weekly maximum benefit level, Foley was entitled to a weekly workers’ compensation benefit of $5.54 from July 1, 2004, until June 30, 2005, and $24.74 until November 8, 2005, at which time he had an earning capacity of $400 weekly and the workers’ compensation benefit was lower than the hypothetical monthly pension amount, thereby reducing his workers’ compensation benefit to zero.

II. DISCUSSION

A. Coordination of Benefits

[¶ 7] In order to keep injured employees from receiving more income from a combination of Social Security or retirement benefits plus workers’ compensation benefits than they would receive if they continued to work, the Legislature enacted a coordination of benefits provision.3 That provision, now found at 39-A M.R.S. § 221(3)(A)(4), provides:

3. Coordination of benefits. Benefit payments subject to this section must be reduced in accordance with the following provisions.
A. The employer’s obligation to pay or cause to be paid weekly benefits ... is reduced by the following amounts:
[1061]*1061(4) The after-tax amount of the pension or retirement payments received or being received pursuant to a plan or program established or maintained by the same employer from whom benefits under section 212 or 213 are received, if the employee did not contribute directly to the pension or retirement plan or program.

[¶ 8] The phrase in section 221(3), “[b]enefits payments subject to this section” includes “[pjension or retirement payments pursuant to a plan or program established or maintained by the employer.” 39-A M.R.S. § 221(1)(C). There is no dispute that Foley’s lump sum retirement payment and $500 monthly Social Security supplement are benefit payments covered by the coordination of benefits provision.

[¶ 9] The “after-tax amount of the pension or retirement payments,” referred to in section 221(3)(A)(4), must be determined by reference to tables published by the Board pursuant to 39-A M.R.S. § 102(1). 39-A M.R.S. § 221(2).4 The tables convert the value of weekly installments into after-tax amounts. Neither the statute nor the tables provide instructions on converting lump sum amounts. Instead, they assume the use of weekly amounts.

[¶ 10] Because the statute and tables are silent on the treatment of lump sum amounts and the Board has not promulgated a rule to cover this statutory vacuum, we must discern the intent of the Legislature from the whole statutory scheme and the legislative history and determine whether the healing officer’s manner of treating Foley’s lump sum was consistent with that intent. In construing a statute, our primary purpose is to give effect to the intent of the Legislature. Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360 (Me.1994).

[¶ 11] In referring to a previous version of the coordination of benefits statute, we said: “The legislative debate suggests that the purpose of section 62-B was to ensure a minimum income during the period of an employee’s incapacity and to prevent a double recovery of both retirement and compensation benefits.” Jordan, 651 A.2d at 361. We have recognized other purposes of the coordination of benefits provision including reducing premiums and preventing the stacking of benefits. Ricci v. Mercy Hosp., 2002 ME 173, ¶ 10, 812 A.2d 250, 252.

[1062]

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Bluebook (online)
931 A.2d 1058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foley-v-verizon-me-2007.