Moore v. City of Portland

2004 ME 49, 845 A.2d 1163, 2004 Me. LEXIS 50, 2004 WL 742669
CourtSupreme Judicial Court of Maine
DecidedApril 8, 2004
DocketNo. WCB-02-588
StatusPublished

This text of 2004 ME 49 (Moore v. City of Portland) 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
Moore v. City of Portland, 2004 ME 49, 845 A.2d 1163, 2004 Me. LEXIS 50, 2004 WL 742669 (Me. 2004).

Opinion

CLIFFORD, J.

[¶ 1] The City of Portland appeals from a decision of a hearing officer of the Workers’ Compensation Board (McCurry, HO), denying its petition for review. The City contends that the hearing officer erroneously interpreted a previous 1995 decision as awarding Maryann Moore total incapacity benefits, as opposed to partial incapacity benefits. The City also contends that the hearing officer further erred in determining that the City failed in its burden to show that Moore is no longer eligible for total incapacity benefits. We are unpersuaded by the City’s contention that the hearing officer wrongly construed the 1995 decision. We conclude that the language of the current decision is contradictory and confusing and that the decision must be vacated. We remand for a determination of the employee’s currént level of partial incapacity.

I. BACKGROUND

[¶ 2] The employee, Maryann Moore, suffered a work-related back injury with associated chronic pain syndrome while attempting to lift a patient during her employment at the Barron Center on September 1, 1988. The City of Portland voluntarily paid Moore the equivalent of total incapacity benefits.

[¶ 3] The City filed a petition for review in 1993, and the hearing officer (McCurry, HO), in a 1995 decision, denied the petition, finding that although the City had established a part-time work capacity, the employee had met her burden of production to show the unavailability of work in her local community by means of a good faith exploration of the local labor market. The hearing officer’s analysis would have been consistent with a finding that Moore is entitled to 100% partial incapacity benefits, but such a finding was not expressly made in his decision; the hearing officer merely denied the employer’s petition to reduce benefits.

[¶ 4] In his further findings of fact, the hearing officer found that Moore had reached maximum medical improvement on February 11, 1993. The decision was appealed to this Court. We summarily vacated and remanded on the issue of the inclusion of fringe benefits in the employee’s average weekly wage. The hearing officer issued a new decision on remand, once again denying the employer’s petition for review, but adjusting Moore’s benefits based on the inclusion of fringe benefits in the average weekly wage. No appeal was taken from that decision after remand.

[¶ 5] Pursuant to the law at the time of Moore’s 1988 injury, employees with partial incapacity are limited to 400 weeks of benefits from the date of maximum medical improvement. See 39 M.R.S.A. § 55-B (Pamph.1988), repealed and replaced by P.L.1991, ch. 885, §§ A-7, A-8 (codified at 39-A M.R.S.A. §§ 213, 214 (2001 & Supp. 2003)).1 Employees receiving total inca[1165]*1165pacity benefits pursuant to former section 54-B of Title 39, are not limited to 400 weeks of benefits and are entitled to inflation adjustments. 39 M.R.S.A. § 54-B (Pamph.1988), repealed and replaced by P.L.1991, ch. 885, §§ A-7, A-8 (codified at 39-A M.R.S.A. § 212 (2001)).

[¶ 6] In 2001, the City filed a second petition for review asserting that, pursuant to the 1995 decision, Moore had been receiving 100% partial incapacity benefits for 400 weeks since the date of maximum medical improvement and, therefore, the employer was entitled to terminate benefits. In the alternative, if the hearing officer concluded that Moore had been receiving total incapacity benefits, the City sought to establish that Moore is currently only partially incapacitated. Moore also filed a petition seeking a cost-of-living adjustment, contending that she had been receiving benefits for total incapacity pursuant to the 1995 decision.

[¶ 7] In the decision that is the subject of this appeal, the hearing officer granted Moore’s petition and denied the City’s petition. The hearing officer first concluded that, pursuant to the 1995 decision, Moore had been awarded benefits for total incapacity pursuant to section 54-B, and therefore, Moore is not subject to the 400-week limitation for partial incapacity benefits. The hearing officer based his conclusion on his interpretation of his 1995 decision, and citing Adams v. Mt. Blue Health Ctr., 1999 ME 105, ¶ 17, 735 A.2d 478, 483, concluded that the previous decision “found that Ms. Moore had carried her work search burden on the employer’s petition and was therefore entitled to total compensation.”

[¶ 8] The hearing officer next made the following findings with respect to Moore’s current incapacity:

The burden[s] of production and persuasion on a petition like this are familiar. The employer has produced evidence and the last decree found that Ms. Moore had a partial work capacity. In response, Ms. Moore has carried her burden of production through her work search and, in part, through the statements of the three potential employers who testified on December 6, 2001.
The Employer has not carried its burden of persuasion showing that the continuing effects of Ms. Moore’s injury no longer cause work to be totally unavailable to her in her local community. Thus, she is entitled to continuing payments of total compensation.
Based upon the finding that Ms. Moore has reached a point of maximum medical improvement, if the employer had established that “she is able to perform full-time remunerative work in the ordinary competitive labor market in the state,” she would no longer be entitled to total compensation....
The records of Dr. Esponnette, as well as Ms. Moore’s testimony and demeanor and the surveillance evidence, establish that Ms. Moore is capable of full-time work. The employer has not shown that she is capable of full-time work in the competitive labor market of the state. The Labor Market opinions of Mr. Stevens [the City’s labor market analyst] address only the Portland area. Thus the employer has not shown on its petition for review that Ms. Moore is [1166]*1166barred from receiving further payments of total compensation.

(citation omitted).

[¶ 9) The hearing officer denied the employer’s motion for.further findings of fact and we granted the City’s petition for appellate review pursuant to 39-A M.R.S.A. § 322 (2001).

II. DISCUSSION

A. Interpretation of the 1995 Decision

[¶ 10] The City contends that the hearing officer could not have intended to award total incapacity benefits in the 1995 decision because the hearing officer did not properly analyze the evidence pursuant to our decision in Adams, 1999 ME 105, ¶ 17, 735 A.2d at 483. We determine whether the hearing officer erred in interpreting his 1995 decision as awarding total incapacity benefits; we do not address whether the 1995 decision awarding benefits for total incapacity pursuant to former section 54-B was correctly decided. The 1995 decision became a final decision, and was not challenged by appeal. A valid and final decision of the Board is binding on the parties, even if erroneous. See Ervey v. Northeastern Log Homes, Inc., 638 A.2d 709, 710-11 (Me.1994).

[¶ 11] The hearing officer in the 2002 decision is the same hearing officer who decided the case in 1995.

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Related

Ladner v. Mason Mitchell Trucking Co.
434 A.2d 37 (Supreme Judicial Court of Maine, 1981)
Adams v. Mt. Blue Health Center
1999 ME 105 (Supreme Judicial Court of Maine, 1999)
Gallant v. Boise Cascade Paper Group
427 A.2d 976 (Supreme Judicial Court of Maine, 1981)
Carroll v. Celsius Contractors
637 A.2d 111 (Supreme Judicial Court of Maine, 1994)
Every v. Northeastern Log Homes, Inc.
638 A.2d 709 (Supreme Judicial Court of Maine, 1994)
Ibbitson v. Sheridan Corp.
422 A.2d 1005 (Supreme Judicial Court of Maine, 1980)

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Bluebook (online)
2004 ME 49, 845 A.2d 1163, 2004 Me. LEXIS 50, 2004 WL 742669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-city-of-portland-me-2004.