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Hogan v. Great Northern Paper
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 162
Docket:	WCB-00-648
Argued:	November 6, 2001
Decided:	November 28, 2001




	[¶1]  Great Northern Paper, Inc., appeals from a decision of a
hearing officer of the Workers' Compensation Board, granting Robert
Hogan's petition for restoration or workers' compensation benefits.  Great
Northern contends that it was error for the hearing officer to conclude that
negative financial consequences related to Hogan's disability pension made
post-injury employment paying more than $100 per week "unavailable" for
purposes of determining post-injury earning incapacity.  We agree and vacate
the hearing officer's decision.
	[¶2] The basic facts are not disputed.  Robert Hogan suffered a
serious right arm injury in 1974, while employed by Great Northern.  Great
Northern paid total incapacity and medical benefits for a period following
the injury.  Hogan began work for the Canadian Pacific Railroad in 1978,
where he remained employed for twenty-one years.  During his time with
the railroad, Hogan sometimes received medical treatments for his right
arm, paid for by Great Northern.  In 1997, Hogan began monthly treatment
for symptoms in his right hand and forearm, and later psychological
treatment for pain and stress management, on referral from his physician.  
	[¶3]  Hogan left Canadian Pacific in July 1999.  Following the
termination of his employment with Canadian Pacific, Hogan received sick
pay for a short time.  In February 2000, Hogan began receiving temporary
disability benefits of $1,925 per month pursuant to a Canadian Pacific
pension plan.  
	[¶4]  Hogan filed a petition for restoration of incapacity benefits from
Great Northern.  The hearing officer concluded that Hogan has a post-injury
ability "to engage in full-time light to moderate work with minimal
accommodations from an employer."  Accordingly, the hearing officer
imputed to Hogan an ability to earn $210 per week.  
	[¶5]  Because Hogan did not conduct a good-faith work search, the
hearing officer concluded that Hogan failed to meet his burden of
production to justify an award of 100% partial incapacity benefits.   See
Bureau v. Staffing Network, Inc., 678 A.2d 583, 587 (Me. 1996).  For the
period following Hogan's receipt of disability benefits, however, the hearing
officer concluded that work paying more than $100 per week is
"unavailable" to Hogan because of the negative financial consequences that
higher earnings would have on Hogan's Canadian Pacific benefits.  Under the
terms of the Canadian Pacific pension plan, if Hogan receives more than
$100 per week in outside employment, his disability payments will be cut in
half.{1}  The hearing officer affirmed his conclusion in response to Great
Northern's motion for further findings of fact and conclusions of law.  We
granted Great Northern's petition for appellate review pursuant to 39-A
M.R.S.A. § 322 (2001).
	[¶6]  For Hogan's 1974 date of injury, entitlement to partial
incapacity benefits is governed by former 39 M.R.S.A. § 55, providing, in
pertinent part:
While the incapacity for work resulting from the injury is partial,
the employer shall pay the injured employee a weekly
compensation equal to 2/3 the difference, due to said injury,
between his average weekly wages, earnings or salary before the
accident and the weekly wages, earnings or salary which he is
able to earn thereafter, but not more than 2/3 of the average
weekly wage in the State of Maine as computed by the
Employment Security Commission; and such weekly
compensation shall be adjusted annually on July 1st so that it
continues to bear the same percentage relationship to the
average weekly wage in the State of Maine as computed by the
Employment Security Commission, as it did at the time of the
injury . . . .
39 M.R.S.A. § 55 (Supp. 1973), repealed and replaced by P.L. 1991, ch. 885,
§§ A-7, A-8 (codified at 39-A M.R.S.A. §§ 213, 214 (2001)).
	[¶7] The concept of an employee being "available" or "unavailable"
for work derives from the phrase "able to earn" in the partial incapacity
statute.  Bureau, 678 A.2d at 587.  Great Northern contends that it was error
for the hearing officer to conclude that work paying more than $100 per
week was unavailable because of the negative financial consequences related
to Hogan's disability pension with Canadian Pacific.  We previously addressed
a similar issue in Longtin v. City of Lewiston, 1998 ME 90, 710 A.2d 901.  In
Longtin, the employee began receiving disability pension benefits when his
injury prevented him from continuing his employment as a firefighter.  Id.
¶ 2, 710 A.2d at 902.  Pursuant to a collective bargaining agreement, if the
employee earned more than $10,000 for five years following the injury, he
would not be entitled to maximum retirement benefits.  Id. ¶ 3.  Seeking to
maximize his pension, the employee refused an offered post-injury job
because it paid greater than $10,000 a year.  Id. ¶ 5, 710 A.2d at 902-03. 
We affirmed the hearing officer's decision to regard the post-injury
employment as available, even though acceptance of the job would adversely
affect the employee's retirement.  Id.  ¶¶ 11-12, 710 A.2d at 904-05. 
	[¶8]  The hearing officer in the present case attempted to
distinguish Longtin on two grounds: first, the hearing officer reasoned that
the financial consequences were greater in this case than in Longtin, 
second, unlike Longtin, there was no specific job offered to the employee. 
	[¶9] These distinctions are not persuasive.  Partial incapacity
benefits are calculated by determining the difference between the
employee's pre-injury average weekly wage and what the employee is "able
to earn" after the injury.  39 M.R.S.A. § 55 (Supp. 1973), repealed and
replaced by P.L. 1991, ch. 885, §§ A-7, A-8.  Post-injury "[e]arning capacity
is 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).  In all cases involving
partial incapacity, including those in which there is no specific job offer or
when the employee has failed to conduct a work search, the obligation of the
hearing officer is to determine what the employee is "able to earn."  
	[¶10]  As we stated in Longtin, ¶ 12, 710 A.2d at 905, "[w]hile it
cannot be said that [collateral financial] consequences will never render
employment 'unavailable,' the Board's primary focus pursuant to the goals of
the Act must be on whether the employee is capable of performing the
employment and whether that employment is actually open to him." 
(emphasis added).  See also Johnson v. Shaw's Distrib. Ctr., 2000 ME 191,
¶¶ 14-17, 760 A.2d 1057, 1061.  This interpretation of the "able to earn"
language supports the principle of mitigation that encourages employees to
seek post-injury employment and permits employers to reduce benefits
according to what the partially incapacitated employee is able to earn. 
	[¶11] Longtin does not rule out the possibility that negative
consequences may, in some extreme cases, render certain post-injury
employment "unavailable."  However, the fact that an employee's benefit
payments from one employer may be reduced, if the employee receives
outside income above a set amount, does not render outside work, paying
above the set amount, "unavailable" so as to impose a benefit payment
obligation on a second employer.   The negative financial impact in the
present case does not render work paying more than $100 per week
unavailable to Hogan.{2}
	The entry is:
Decision of the hearing officer of the Workers'
Compensation Board vacated.  Remanded to the
Board for further proceedings consistent with
this opinion.
Attorney for employee: Frederick F. Costlow, Esq. (orally) Richardson, Whitman, Large & Badger, P.C. P O Box 2429 Bangor, ME 04402-2429 Attorney for employer: John A. Woodcock Jr., Esq. (orally) Weatherbee, Woodcock, Burlock & Woodcock, P.A. P O Box 1127 Bangor, ME 04402-1127
FOOTNOTES******************************** {1} . It has yet to be determined whether Hogan will be entitled to permanent disability, but if Hogan is deemed eligible, those benefits will be contingent on Hogan not obtaining any paid outside employment. {2} . Great Northern also argues that the hearing officer's decision is contrary to our decision in Bernard v. Mead Publ'g Paper Div., 2001 ME 15, ¶ 16, 765 A.2d 576, 581, because the hearing officer calculated the employee's benefits after first inflating his pre-injury average weekly wage for inflation. The employer did not raise this issue in its petition for appellate review and, therefore, the issue has not been preserved. See Laskey v. S.D. Warren Co., 2001 ME 103, ¶ 31, 774 A.2d 358, 366.