Ray v. Carland Construction, Inc.

1997 ME 206, 703 A.2d 648, 1997 Me. LEXIS 207
CourtSupreme Judicial Court of Maine
DecidedOctober 23, 1997
StatusPublished
Cited by11 cases

This text of 1997 ME 206 (Ray v. Carland Construction, Inc.) 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
Ray v. Carland Construction, Inc., 1997 ME 206, 703 A.2d 648, 1997 Me. LEXIS 207 (Me. 1997).

Opinions

ROBERTS, Justice.

[¶ 1] Both cases in this consolidated appeal from decisions of the Workers’ Compensation Board raise issues concerning the applicable law in successive injury cases. In the first case, Carland Construction, Inc., contends that the Board erred by basing an award of compensation on Donald P. Ray’s average weekly wage at the time of the first injury and including an inflation adjustment pursuant to former 39 M.R.S.A § 55-A (Supp.1987), repealed and replaced by P.L. 1987, ch. 559, part B, §§ 29, 30, codified at 39 M.R.S.A. § 55-B (1989). In the second case, Denyse Pelletier contends that the Board erred in applying 39-A M.R.S.A § 213 (Supp.1996) to determine her incapacity benefits when 50% of her incapacity was attributable to a pre-1993 injury governed by former 39 M.R.S.A § 55-B (1989), repealed by Maine Workers’ Compensation Act of 1992, P.L.1991, ch. 885, § A-7 (effective January 1, 1993). We vacate the decision of the Board in Ray, and affirm in part1 the Board’s decision in Pelletier.

Ray v. Carland Construction, Inc.

[¶ 2] Donald P. Ray suffered his first injury to his back on November 4, 1987, while employed at Carland Construction. His average weekly wage was $455.59. After two months, Carland discontinued its voluntary payment of benefits. Ray suffered a second back injury on November 8, 1993, while employed by Zachau Construction Co., where his average weekly wage was $447.16. In 1994 and 1995, Ray filed petitions for award and further compensation relating to both injuries. In granting the petitions, the Board found that 60% of Ray’s incapacity was attributable to the 1987 injury and 40% to the 1993 injury, and that his benefits should be calculated according to the average weekly wage at the time of his first injury.2 The Board also concluded that Ray was entitled to the inflation adjustment that was in effect at the time of the 1987 injury, even though the adjustment had been repealed by the time of the 1993 injury.

[¶3] Carland filed a motion for further findings of fact and conclusions of law, contending that Ray’s benefits should have been based on the average weekly wage at the time of the second injury unless the second wage was lower as a result of the first injury. McDonald v. Rumford School Dist., 609 A.2d 1160, 1161 (Me.1992). Without expressly determining whether Ray’s earnings at the time of the second injury were lower as a result of the first injury, the Board denied the motion stating that, unlike McDonald which involved two injuries that contributed equally to the employee’s incapacity, the greater portion of the responsibility (60%) was attributable to Ray’s first injury and therefore his benefits should be calculated according to his average weekly wage at the time of the first injury. We granted Car-land’s petition for appellate review pursuant to 39-A M.R.S.A § 322 (Supp.1996).

[¶ 4] Carland raises two issues on appeal: (1) whether the Board properly calculated Ray’s benefits according to the average weekly wage at the time of his first injury and (2) whether Ray’s entitlement to an inflation adjustment is governed by the law in effect at the time of his first injury in 1987 or the law in effect at the time of his 1993 injury, which does not provide an adjustment for inflation or deflation. We conclude that both issues are controlled by our decision in McDonald, 609 A2d at 1161. In that case McDonald suffered a work-related [650]*650back injury in 1986 and, after returning to full-time work, suffered a second compensa-ble back injury in 1988. Id. at 1160. The law in effect at the time of the of the first injury provided an immediate inflation adjustment for total incapacity benefits. 39 M.R.S.A. § 54-A (Supp.1987), repealed and replaced by P.L.1987, ch. 559, part B, §§ 26, 27 (codified at 39 M.R.S.A. § 54-B (1989)). The law at the time of McDonald’s second injury, however, delayed the application of the inflation adjustment until three years after the injury. 39 M.R.S.A. § 54-B (1989), repealed and replaced by P.L.1991, ch. 885, §§ A-7, A-8 (codified at 39-A M.R.S.A. § 212 (Supp.1996)). Because it was impossible to determine the exact contribution of each injury to McDonald’s continuing incapacity, the former Workers’ Compensation Commission divided the responsibility equally between the two injuries. McDonald, 609 A.2d at 1161. The Commission concluded further that McDonald was entitled to the inflation adjustment and to the average weekly wage in effect on the date of his first injury. Id. We vacated the Commission’s decision, concluding, in part, that the Commission should have computed McDonald’s benefits based on his average weekly wage at the time of his second injury. Id. Contrary to the Board’s conclusion in this ease, the fact that McDonald’s injuries were “equally contributing” was not the controlling factor on the issue of the applicable average weekly wage. Id. The controlling factor in McDonald was that the employee’s earnings at the time of the second injury were not reduced as a result of his first injury. Id. Recognizing that the purpose of the average weekly wage formula is to provide a fair estimate of the employee’s future earning capacity in the absence of an injury, we concluded that if the employee has no incapacity at the time of the second injury, the second average weekly wage will most accurately reflect the employee’s pre-injury earning capacity. Id.; Warren v. H.T. Winters Co., 537 A.2d 583, 585 (Me.1988). We therefore agree with Carland Construction that it was error for the Board to calculate Ray’s benefits according to the average weekly wage at the time of his 1987 injury without first determining whether his earnings at the time of his 1993 injury were reduced as a result of the 1987 injury. Moreover, Ray conceded at oral argument that there is no evidence that the 1987 injury caused a loss of earning capacity at the time of the 1993 injury. Accordingly, his benefits should have been calculated according to his 1993 average weekly wage.

[¶ 5] McDonald is also controlling on the issue of the applicable inflation adjustment. 609 A.2d at 1161. We held that McDonald’s benefits must be adjusted according to the inflation provision in effect at the time of his second injury. We stated:

As an employee who has suffered successive equally contributing injuries, McDonald’s rights “cannot be determined until the time of the second injury, since it is not until that time that both injuries combine to cause the incapacity.” Warren, 537 A.2d at 586. The legislature, in an effort to curtail the costs of workers’ compensation, was free to limit the inflation adjustment of the average weekly wage, and to provide that it apply to all injuries occurring after the effective date of the legislative change.

Id. As was the case for the average weekly wage, the fact that McDonald’s injuries contributed equally to his incapacity had no relevance to our decision on the inflation adjustment. Recognizing that the Legislature sought to reduce costs in the workers’ compensation system by requiring a three-year waiting period for the adjustment of total benefits, we concluded that the waiting period was intended to apply to all successive injuiy cases when the most recent injury occurs after the effective date of the statute. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Temm v. S.D. Warren Co.
2005 ME 118 (Supreme Judicial Court of Maine, 2005)
Dunson v. South Portland Housing Authority
2003 ME 16 (Supreme Judicial Court of Maine, 2003)
Maine Insurance Guaranty Ass'n v. Folsom
2001 ME 63 (Supreme Judicial Court of Maine, 2001)
Cust v. University of Maine
2001 ME 29 (Supreme Judicial Court of Maine, 2001)
Hincks v. Robert Mitchell Co.
1999 ME 172 (Supreme Judicial Court of Maine, 1999)
Loud v. Kezar Falls Woolen Co.
1999 ME 118 (Supreme Judicial Court of Maine, 1999)
Goff v. Central Maine Power Co.
1998 ME 269 (Supreme Judicial Court of Maine, 1998)
Gendreau v. Tri-Community Recycling
1998 ME 19 (Supreme Judicial Court of Maine, 1998)
Smith v. Market Square Health Care Center
1997 ME 237 (Supreme Judicial Court of Maine, 1997)
Guiggey v. Great Northern Paper, Inc.
1997 ME 232 (Supreme Judicial Court of Maine, 1997)
Ray v. Carland Construction, Inc.
1997 ME 206 (Supreme Judicial Court of Maine, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
1997 ME 206, 703 A.2d 648, 1997 Me. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-v-carland-construction-inc-me-1997.