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Goff v. CMP
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Decision:		1998 ME 269
Docket:		WCB-97-316
Argued:		November 2, 1998
Decided 		December 14, l998 



	[¶1]  Everett Goff appeals, and his employer, Central Maine Power
[CMP], cross-appeals, from a decision of the Workers' Compensation Board
granting the employee's petition for an award relating to a 1981 injury, but
allowing CMP to offset benefits due to Goff by the amount of severance pay
CMP paid to him.  We disagree with CMP's contention  that, because it has
voluntarily paid benefits without prejudice for a 1994 injury, the Board
should not have awarded any benefits pursuant to the law in effect at the
time of Goff's earlier injury in 1981.  We agree with Goff's contention that it
was error for the Board to permit the offset.  Accordingly, we affirm in part
and vacate in part, the decision of the Board.
	[¶2]  Goff suffered a work-related ankle-injury on July 9, 1981 and
CMP voluntarily accepted responsibility for that injury.  In 1994 Goff lost
time from work after suffering an injury to his tailbone resulting from a
slip-and-fall in the CMP parking lot.  Goff's employment was terminated in
July of 1994 for economic reasons unrelated to his injury.  Pursuant to Goff's
employment contract, Goff was entitled to receive forty-two weeks of earned
severance pay, calculated according to the length of his employment with
CMP.  CMP paid Goff total incapacity benefits for the 1994 injury, without
prejudice, but unilaterally offset those benefits by the forty-two weeks of
severance pay received by Goff upon his termination.
	[¶3]  Goff filed petitions with the Board seeking incapacity benefits
for the 1981 injury, and in addition, he sought reimbursement for his
medical expenses related to the 1994 injury.  CMP did not concede
responsibility for the 1994 injury, but paid benefits for the 1994 injury
without prejudice.  Goff subsequently withdrew his petition related to that
injury.  The Board granted Goff's petition for award for the 1981 injury,
finding that "[a]lthough [Goff] also suffers from chronic back pain, I am
persuaded by his testimony that it is his ankle problems which prevent him
from working."  The Board awarded benefits based on the law and Goff's
average weekly wage at the time of his 1981 injury.  The Board rejected
CMP's argument that CMP's payment of full benefits for the 1994 injury,
without prejudice, precluded an award of benefits for the 1981 injury.  The
Board stated further that "[b]ecause there is no petition pending on the
1994 date of injury, . . . no findings have been made with respect to that
date of injury."  
	[¶4]  The Board agreed with CMP, however, that the employer is
entitled to an offset in the amount of Goff's earned severance pay, stating:

The employer maintains that it has a right to offset the benefits
owed by the amount of severance paid after termination.  I agree. 
I find that severance pay is a substitute for earnings.  It would be
inconsistent with the purpose of the Workers' Compensation
Laws in effect on the date of injury to allow the employee what
would amount to a double recovery for loss of earnings. . . .

We granted both parties' petitions for appellate review pursuant to 39-A
M.R.S.A. § 322 (Supp. 1998).
	[¶5]  CMP contends that its payment of benefits for the 1994 injury
bars a petition for award for the 1981 injury even though that payment for
the 1994 injury was without prejudice.  We disagree.  Title 39-A M.R.S.A. §
305 (Supp. 1998) provides, in pertinent part, that "[i]n the event of a
controversy as to the responsibility of an employer for the payment of
compensation, any party in interest may file in the office of the board a
petition for award of compensation. . . ."  (emphasis added).  In Libby v. Boise
Cascade Corp., 1998 ME 89, ¶ 4-8, 709 A.2d 737, 738-39, we held that an
employer's payment of full benefits "without prejudice" does not preclude a
petition for protection of the Act to establish causation.  Id.  As we
recognized in Libby, section 305 permits the filing of petitions for award in
cases involving controversies over the "responsibility" of employers to pay
compensation, and not merely controversies concerning the amount of
benefits paid to the employee.  Id.  Just as the employee in Libby was
entitled to bring a petition for award to establish causation when the
employer had paid benefits without prejudice on a single injury, CMP's
payments without prejudice for a subsequent injury do not preclude Goff
from litigating and establishing causation with respect to his 1981 injury.
	[¶6]  CMP next contends that, even if Goff is not precluded from
filing a petition for award for the 1981 injury, pursuant to our decision in
Ray v. Carland Constr., Inc., 1997 ME 206, ¶ 6, 703 A.2d 648, 650-51,
Goff's entitlement to benefits after 1994 must be governed exclusively by the
law and the average weekly wage in effect at the time of his 1994 injury.  In
Ray, we held that, when an employee's incapacity results from the
combination of a pre-1993 work-injury and a second work-injury after 1993,
the entire resulting incapacity is governed by the law in effect at the time of
the subsequent work-related injury.  Id.{1}    
	[¶7]  Ray, however, and the statutory change enacted in response to
Ray, address the issue of the applicable law in cases when the employee
suffers more than one compensable injury, the latter of which occurs after
the effective date of title 39-A.  Until the employer accepts the
compensability of the 1994 injury with prejudice, or there is a Board
decision establishing the compensability of that injury, however, Goff has not
suffered two work-related injuries for purposes of the Act, and the 1994
injury must be treated as a subsequent nonwork-injury for purposes of
determining the applicable law.{2}  See e.g., Lamonica v. Ladd Holmes, 1998
ME 190, ¶ 5-9, ___ A.2d ___ (employer not entitled to apportionment for
subsequent noncompensable work-injury); Harding v. Sheridan D. Smith,
Inc., 647 A.2d 1193, 1194 (Me. 1994) (same).  By electing to pay the
employee without prejudice, CMP has preserved its right to contest the
compensability of the 1994 injury.  We find nothing in the statutory language
or our decisions to permit an employer to deny that a compensable
work-injury occurred, as CMP has done in this case, and then to treat that
injury as work-related for  the purpose of deciding what law applies to
determine benefits.
	[¶8]  Goff contends that it was error for the Board to allow an offset of
benefits in the amount of severance pay.  We agree.  In the absence of a
Board decision establishing liability for the 1994 injury, or an acceptance by
the employer of that injury, the issue of a setoff must be governed by the law
in effect at the time of Goff's 1981 injury.  We find no statutory authority in
the 1981 law permitting an employer to offset severance pay against its
obligation to pay workers' compensation benefits.{3}  The rights of employers
and employees pursuant to the Workers Compensation Act are uniquely
statutory, and we decline to interpret the Act to provide a setoff of workers'
compensation benefits in the absence of express statutory language
authorizing a setoff.  See e.g., American Mutual Ins. Co. v. Murray, 420 A.2d
251, 252 (Me. 1980) (employer not entitled to recover overpayments during
unsuccessful appeal by employee); Page v. General Elec. Co., 391 A.2d 303,
307-09 (Me. 1978) (no offset for unemployment benefits in the absence of
express statutory language).  Accordingly, we vacate that portion of the
Board's decision permitting the employer to exercise an offset for severance
	The entry is:
The decision of the Workers' Compensation
Board affirmed in part, and vacated in part. 
Remanded to the Workers' Compensation Board
for further proceedings consistent with this

Attorney for the Appellant: James J. MacAdam, Esq. (orally) McTeague, Higbee, MacAdam, Case, Watson & Cohen P.O. Box 5000 Topsham, Maine 04086-5000 Attorney for the Appellee: Robert W. Bower, Esq. (orally) Norman, Hanson & DeTroy P.O. Box 4600 Portland, Maine 04112-4600 Attorney for the Appellant: James J. MacAdam, Esq. (orally) McTeague, Higbee, MacAdam, Case, Watson & Cohen Four Union Park P.O. Box 5000 Topsham, Maine 04086-5000 Attorney for the Appellee: Robert W. Bower, Jr.,Esq. (orally) Norman, Hanson & DeTroy 4l5 Congress St. P.O. Box 4600 Portland, Maine 04112-4600
FOOTNOTES******************************** {1} . Our holding in Ray was addressed, and the law changed, by the Legislature's enactment in 1998 of 39-A M.R.S.A. § 201(6). P.L. 1997, ch. 647, codified at 39-A M.R.S.A. § 201(6) (effective April 1, 1998); L.D. 1318, Statement of Fact (118th Legis. 1998). Subsection 201(6) provides: 6. Prior work-related injuries. If an employee suffers a work-related injury that aggravates, accelerates or combines with the effects of a work-related injury that occurred prior to January 1, 1993 for which compensation is still payable under the law in effect on the date of that prior injury, the employee's rights and benefits for the portion of the resulting disability that is attributable to the prior injury must be determined by the law in effect at the time of the prior injury. 39-A M.R.S.A. § 201(6) (Supp. 1998). Nevertheless, CMP contends that because the proceeding in this case was pending on the effective date of subsection 201(6), our decision in Ray is controlling. See Riley v. Bath Iron Works Corp., 639 A.2d 626, 627-28 (Me. 1994). Because we conclude that our holding in Ray does not apply to the facts of this case, it is not necessary to determine in this case whether subsection 201(6) applies retroactively to proceedings pending on its effective date. {2} . CMP has not argued that Goff's incapacity is governed by 39-A M.R.S.A. § 201(5) (Supp. 1998), addressing subsequent nonwork-injuries. {3} . Because we conclude that the law in effect in 1981 does not provide for an offset to the payment of workers' compensation benefits, we do not address whether the severance pay in this case is a "wage continuation" plan within the meaning of our current workers' compensation statute. 39-A M.R.S.A. § 221 (Supp. 1998). See Gendreau v. Tri-City Recycling, 1998 ME 19, ¶ 7-8, 715 A.2d 1106, 1108.