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Dudley v. Burns & Roe Construction
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 161
Docket:	WCB-00-645 
Argued:	November 7, 2001	
Decided:	November 28, 2001




	[¶1]  Burns & Roe Construction Group appeals from a decision of a
hearing officer of the Workers' Compensation Board granting the employee's
petition to calculate his compensation rate.  The hearing officer concluded
that the employee, whose average weekly wage exceeds the statutorily
established benefit cap, is entitled to an annual adjustment in benefits as the
benefit cap is adjusted pursuant to 39-A M.R.S.A. § 211 (2001).  The
employer contends that section 211 provides the maximum benefit for the
employee's date of injury and that the employee is not entitled to increases
in the benefit cap.  We affirm the decision of the hearing officer.
	[¶2]  The parties appropriately presented the single legal issue in this
matter to the hearing officer on the following stipulated facts.  On May 15,
1997, Leon Dudley suffered a work-related injury while employed by Burns
& Roe, and has remained totally incapacitated since the date of his injury. 
Dudley's average weekly wage at the time of the injury was $1,345.99. 
	[¶3]  In August of 2000, Dudley filed a petition to calculate his
compensation rate, contending, in pertinent part:
5.Because my compensation rate exceeds the state
maximum compensation rate, I have been receiving
$441.00 per week in total incapacity benefits since my

6.Effective July 1, 2000, the state maximum compensation
rate for all injuries occurring after January 1, 1993,
increased to $458.83.

7.The employer/insurer has refused to increase my benefits
to the current state maximum compensation rate.
	[¶4]  The hearing officer granted Dudley's petition in December of
2000, concluding that he "is entitled to an increase in his compensation
rate to $458.83 as of July 1, 2000 and that he was entitled to an increase in
compensation rate to $441.10 as of July 1, 1999."  We granted the
employer's petition for appellate review pursuant to 39-A M.R.S.A. § 322
	[¶5]  Dudley is receiving benefits for total incapacity pursuant to 39-A
M.R.S.A. § 212, which provides, in pertinent part:
	1. Total incapacity.  While the incapacity for work resulting
from the injury is total, the employer shall pay the injured
employee a weekly compensation equal to 80% of the
employee's after-tax average weekly wage, but not more than the
maximum benefit under section 211.  Compensation must be
paid for the duration of the incapacity.

. . . .
39-A M.R.S.A. § 212 (2001) (emphasis added).  The maximum benefit,
addressed in section 211, is described as follows:
	Effective January 1, 1993, the maximum weekly benefit
payable under section 212, 213, or 215 is $441 or 90% of state
average weekly wage, whichever is higher.  Beginning on July 1,
1994, the maximum benefit level is the higher of $441 or 90%
of the state average weekly wage as adjusted annually utilizing
the state average weekly wage as determined by the Department
of Labor.
39-A M.R.S.A. § 211 (2001).  Pursuant to the instructions contained in
section 211, the Board increased the maximum rate to $441.10, effective
July 1, 1999, to $458.83, effective July 1, 2000, and to $471.76, effective
July 1, 2001.
	[¶6]  The hearing officer concluded that Dudley was entitled to the
newly established maximum benefit levels.  Burns & Roe argues that section
211 may not be applied as a means of increasing an employee's benefit
payments once established and that it provides a method of calculating the
maximum rate to be applied in a new award of benefits only.  In essence, the
employer reads section 212 as if it said: "the employer shall pay the injured
employee a weekly compensation equal to 80% of the employee's after-tax
average weekly wage, but not more than the maximum benefit under section
211 at the time the benefit is established."
	[¶7]  The plain language of section 212 refutes the employer's
position.  Pursuant to that section, an employee is entitled to 80% of his
after-tax weekly wage, limited only by the benefit cap established by section
211.  As that benefit cap fluctuates, so will the employee's benefit, unless
and until the benefit reaches the 80% mark.  In other words, the Legislature
has established two caps on a high wage-earning employee's receipt of
benefits: the 80% benchmark and the floating maximum benefit cap,
whichever is lower.  
	[¶8]  If the Legislature had intended to provide for a one-time per
employee determination of the benefit cap in section 211, it could have said
so.{1}  Because neither section 211 nor section 212 contains any such limiting
language, we conclude that when the employee is entitled to the statutory
maximum benefit, he is also entitled to the benefit of adjustments in the cap
made pursuant to section 211.
	The entry is:
Judgment affirmed.
Attorney for employee: Douglas S. Kaplan, Esq. (orally) Kaplan & Grant P O Box 7474 Portland, ME 04112 Attorney for employer: Richard D. Bayer, Esq. (orally) MEMIC P O Box 3606 Portland, ME 04104
FOOTNOTES******************************** {1} . All previous interpretations of essentially similar language in former title 39 suggest that annual adjustments of existing awards of benefits are permissible. See Marchand v. E. Welding Co., 641 A.2d 190, 192 (Me. 1994); Bernard v. Cives Corp., 395 A.2d 1141, 1146 (Me. 1978).