Tucker v. ASSOCIATED GROCERS OF MAINE, INC.

2008 ME 167, 959 A.2d 75, 2008 Me. LEXIS 171, 2008 WL 4816656

• Court: Supreme Judicial Court of Maine
• Decided: November 6, 2008
• Docket: Docket: WCB-08-41
• Status: Published

Opinions

GORMAN, J.

[¶ 1] Associated Grocers of Maine, Inc., (AGM) appeals from a decision of a Workers’ Compensation Board hearing officer (Elwin, HO) granting Randall K. Tucker’s petition for review. AGM contends that the hearing officer erred in awarding Tucker 100% partial benefits and ongoing partial benefits based on part-time earning capacity because, although Tucker has full-time, light duty earning capacity, he elected to attend school on a full-time basis and seek only part-time work. We agree, and vacate the hearing officer’s decision.

I. BACKGROUND

[¶ 2] Randall Tucker worked for AGM as a truck driver and warehouse clerk for eight years. On May 29, 2002, he suffered an injury to his lower back while unloading a shipment of groceries. After a period of total incapacity, Tucker worked full time for AGM at a light duty job, and was paid partial incapacity benefits pursuant to a 2005 consent decree. Tucker’s doctor took him out of work on June 13, 2005. AGM terminated Tucker’s employment three months later, because it could no longer accommodate his injury. By October 2005, Tucker had found new, part-time employment as a meat cutter for a new employer, where he worked between ten and twenty-five hours per week. His new partial benefit was established in a consent decree dated March 6, 2006.

[¶ 3] After his work-related injury, Tucker returned to school and obtained his high school diploma. In January 2006, he began a full-time course of study at a community college working toward an associate’s degree in respiratory therapy. He has maintained a full course load since that time, which involves twenty-four hours of classes and twenty hours of outside study per week. Tucker intended to work twenty bora’s per week while completing his degree. However, Tucker’s part-time meat cutting job ended on February 25, 2006, nine days before the March 6, 2006, consent decree was signed. Tucker proceeded to search for work consistent with his restrictions and his class schedule. He was unsuccessful until March 29, 2007, when he found another part-time meat cutting job earning $11 per hour.

[¶ 4] Tucker filed a petition for review of incapacity, seeking 100% partial benefits beginning the day after the March 6, 2006, consent decree was signed until he secured part-time work on March 29, 2007,¹ and ongoing partial benefits thereafter. The hearing officer found that Tucker’s financial circumstances had changed since the 2006 consent decree, and granted the petition awarding 100% partial benefits for the closed-end period sought, and ongoing partial benefits thereafter. Tucker’s 2002 average weekly wage was $725.23 plus $202.90 in fringe benefits, yielding a 100% partial benefit of $520.12. Taking into account his part-time earnings, he was awarded an ongoing partial benefit in the amount of $349.46 per week.

[¶ 5] AGM filed a petition for additional findings of fact and conclusions of law along with proposed findings and conclusions. The hearing officer determined that the decision provided an adequate basis for appellate review, and she did not issue additional findings. We granted AGM’s petition for appellate review pursuant to 39-A M.R.S. § 322 (2007) and M.R.App. P. 23(c).

II. DISCUSSION

[¶ 6] We are asked to decide whether an injured employee with full-time light duty earning capacity has met his burden of proof of entitlement to 100% partial incapacity benefits for a closed-end period and ongoing partial benefits based on part-time earning capacity when the employee concedes that he searched for only part-time work so that he could complete a full-time course of study and improve his employment prospects. Preliminarily, we are asked to consider whether the hearing officer erred when determining that the employee’s economic circumstances had changed since the prior decree establishing the employer’s benefit obligation.

[¶ 7] Ora role on appeal is limited to assuring that the hearing officer’s decision involved no misconception of applicable law and that the application of the law to the facts was neither arbitrary nor without rational foundation. Moore v. Pratt & Whitney Aircraft, 669 A.2d 156, 158 (Me.1995); see also Longtin v. City of Lewiston, 1998 ME 90, ¶ 11, 710 A.2d 901, 904-05.

A. Changed Circumstances

[¶ 8] Tucker’s partial benefit was established in the March 6, 2006, consent decree. “[I]n order to prevail on a petition to increase or decrease compensation in a workers’ compensation case when a benefit level has been established by a previous decision, the petitioning party must first meet its burden to show a ‘change of circumstances’ since the prior determination.” Grubb v. S.D. Warren Co., 2003 ME 139, ¶ 7, 837 A.2d 117, 119-20. That burden “maybe met by either providing ‘comparative medical evidence,’ or by showing changed economic circumstances.” Id.

[¶ 9] AGM contends that the hearing officer erred when finding changed economic circumstances because Tucker’s job loss occurred before the consent decree was signed, thus his circumstances had not changed since the prior determination. See id. The hearing officer, however, found that Tucker’s economic circumstances had changed not only due to the job loss, but also due to the unanticipated, year-long period of unemployment that followed. This assessment of Tucker’s circumstances is supported by the record, is not irrational, and does not misconceive the law. Accordingly, we find no error.

[¶ 10] Having found that the hearing officer appropriately re-examined Tucker’s benefit level, we proceed to determine whether she erred when awarding 100% partial benefits for the period when Tucker was between part-time jobs, and ongoing partial benefits based on a part-time earning capacity thereafter.

B. 100% Partial Benefits and Post-Injury Earning Capacity

[¶ 11] Partial incapacity benefits are based on the difference between the employee’s pre-injury average weekly wage and what the employee is able to earn after the injury. 39-A M.R.S. §§ 213(1), 214(1)(B) (2007). Section 213(1) provides in relevant part:

While the incapacity for work is partial, the employer shall pay the injured employee a weekly compensation equal to 80% of the difference between the injured employee’s after-tax average weekly wage before the personal injury and the after-tax average weekly wage that the injured employee is able to earn after the injury, but not more than the maximum benefit under section 211.

(Emphasis added.) Section 214(1)(B) provides:

If an employee is employed at any job and the average weekly wage of the employee is less than that which the employee received before the date of injury, the employee is entitled to receive weekly benefits under this Act equal to 80% of the difference between the injured employee’s after-tax weekly wage before the date of injury and the after-tax weekly wage that the injured employee is able to earn after the date of injury, but not more than the maximum weekly rate of compensation, as determined under section 211.

(Emphasis added.) Pursuant to these provisions, when awarding partial benefits, the hearing officer has an obligation to determine the employee’s capacity to earn. Johnson v. Shaw’s Distribution Ctr., 2000 ME 191, ¶ 8, 760 A.2d 1057, 1060. Earning capacity is evaluated “based on (1) the employee’s physical capacity to earn wages, and (2) the availability of work within the employee’s physical limitations.” Dumond v. Aroostook Van Lines, 670 A.2d 939, 941 (Me.1996).

[¶ 12] “A partially incapacitated employee may be entitled to T00% partial’ benefits pursuant to section 213 based on the combination of a partially incapacitating work injury and the loss of employment opportunities that are attributable to that injury.” Monaghan v. Jordan’s Meats, 2007 ME 100, ¶ 13, 928 A.2d 786, 791. To obtain the 100% benefit pursuant to an employee’s petition for review, the employee must establish that employment is unavailable to him in his local community as a result of the work injury. Id.

[¶ 13] AGM contends that Tucker is not entitled to 100% partial benefits because he chose to enroll in school full time and search for only part-time work in order to accommodate that choice, despite having full-time earning capacity. AGM further contends that the ongoing partial benefit amount Tucker was awarded, calculated based on a full-time average weekly wage less his part-time earnings, was erroneous because Tucker has full-time post-injury earning capacity.

[¶ 14] Tucker concedes that after he went back to school and he lost his job in February 2006 — the time period relevant to his petition for review — he searched only for part-time work so that he could complete his course of study and improve his employment prospects. He asserts, however, that he initially enrolled in school because, despite an extensive search, he could not find full-time work within his restrictions. Because his inability to find work and his need for retraining are related to the work injury, he argues that it was proper for the hearing officer to conclude that work was unavailable to him.

[¶ 15] When concluding that Tucker had established that work was unavailable to him in his community as a result of his work injury, the hearing officer considered Tucker’s enrollment in college not as an election to remove himself from the full-time work force, but as a factor relevant to whether he conducted a good faith work search. See id. ¶ 21, 928 A.2d at 793 (fist-ing nine nonexclusive factors for consideration by hearing officers when determining whether work search evidence proves that work is unavailable to the employee in the local community as a result of the work injury, including whether the employee has engaged in efforts to improve his prospects for employment).

[¶ 16] AGM contends this is error because, by searching only for part-time work after he went back to school, Tucker chose underemployment — and an employer is not bound to subsidize that choice.

[¶ 17] We considered whether the Act authorizes an award of 100% partial incapacity benefits to an employee who had enrolled in graduate school full time according to a rehabilitation plan ordered pursuant to 39-A M.R.S. § 217² in Johnson, 2000 ME 191, 760 A.2d 1057. The employee in Johnson had filed a petition for award, seeking 100% partial incapacity benefits for the period he would be enrolled in school, arguing that work was unavailable to him due to the rehabilitation plan. Id. ¶ 4, 760 A.2d at 1059.

[¶ 18] The hearing officer concluded that notwithstanding his full-time enrollment in school, Johnson had not demonstrated that work was unavailable to him as a result of his work injuries. Id. The hearing officer awarded partial benefits, but imputed a full-time post-injury earning capacity based on the minimum wage. Id. We affirmed, stating that there is nothing in the statute that would require modification of the traditional availability analysis under Johnson’s circumstances. Id. ¶ 14, 760 A.2d at 1061. We reasoned that while the employer remained responsible for all benefits to which Johnson was entitled as a result of his injuries during his enrollment in school, the employer was not responsible for wage replacement for the hours of his studies. Id. ¶ 16. We stated:

It is important to understand exactly what the employee seeks here. The parties do not dispute that during a rehabilitation program, the employer will remain responsible for benefits to which the employee is entitled as a re-suit of the reduction in his wages resulting from the injury. .-.The employee argues that, in addition to those benefits, he is entitled to benefits representing his lost earnings while he is engaged in the rehabilitation program. In essence, the employee asks us to declare that the employer is responsible for paying wage replacement to the employee for the hours of his studies. There simply exists no statutory authority for this proposition.

Those employees with severe or totally incapacitating injuries who are unable to perform available work in the local labor market, and those for whom there actually exists little or no available employment in the community, will continue to receive total or relatively high levels of partial incapacity benefits while pursuing vocational rehabilitation. Only those employees like Johnson, with lesser degrees of partial incapacity, who continue to have substantial work opportunities in their local communities without vocational rehabilitation, are affected by the statute as it is written.

Id. ¶¶ 16, 17. Thus, the employer is responsible for the loss of earnings resulting from the injury, not “from the employee’s choice to remove himself from the labor market during his efforts to improve his future earning opportunities.” Id. ¶ 17.

[¶ 19] Unlike the employee in Johnson, Tucker attempted to establish the unavailability of work with evidence of a work search. His attempt, however, fails as a matter of law. Tucker has acknowledged that he has the physical capacity to earn full-time wages, yet he admittedly sought only part-time work. While Monaghan lists efforts to improve employment prospects among the factors that are relevant to whether the employee had demonstrated a good faith work search, it does not authorize awarding 100% partial benefits (or partial benefits based on part-time earning capacity) when an employee with full-time work capacity searches for only part-time work so that he can maintain a full-time school schedule. Thus, the hearing officer misconceived the law.

[¶ 20] We conclude that because an employer is responsible only for loss of earning capacity related to the work injury, it is not required to pay 100% partial benefits or ongoing partial benefits based on a part-time earning capacity to an employee with full-time earning capacity who elects to attend school full time and work only part time. We vacate the hearing officer’s decision and remand for recalculation of benefits imputing a full-time earning capacity to Tucker.

The entry is:

The Workers’ Compensation Board hearing officer’s decision is vacated, and the case remanded for proceedings consistent with this opinion.

1 . Excluded from this time period are the weeks between April 26 and June 12, 2006, when Tucker was paid total incapacity benefits for a period of time when he was recuperating from shoulder surgery necessitated by a 2001 work injury that is not in issue in this appeal.

2 . AGM was not ordered to pay for rehabilitation or retraining services for Tucker pursuant to 39-A M.R.S. § 217 (2007). Section 217 provides, in relevant part:

When as a result of injury the employee is unable to perform work for which the employee has previous training or experience, the employee is entitled to such employment rehabilitation services, including retraining and job placement, as reasonably necessary to restore the employee to suitable employment.