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Smith v. Market Sq. Health Care
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Decision:		1997 ME 237
Docket:		WCB-96-565
Argued:		November 14, 1997
Decided :		December 31, 1997




	[¶1]  April Smith appeals from a decision of the Workers'
Compensation Board granting her petition for restoration, but denying
continuing benefits based on the Board's application of 39-M.R.S.A. § 214
(Supp. 1997).  Pursuant to that section, the Board found that Smith refused
a bona fide offer of reasonable reinstatement work without good and
reasonable cause.  She contends that because her current incapacity is due,
in part, to a 1991 work-related injury, the Board should have limited the
application of section 214 to that portion of her incapacity attributable to
her post-1993 injury.  She further contends that the Board erred in its
factual finding that she refused an offer of reasonable work without good and
reasonable cause pursuant to 39-A M.R.S.A. § 214.  Because the order
granting appellate review limits this appeal to the issue of whether Section
214 of 39-A M.R.S.A. is the law to be applied, we address only that issue, and
we are unpersuaded that the Board applied the wrong law.  Accordingly, we
affirm the decision of the Board.
	[¶2]  Smith suffered a work-related injury to her right wrist, shoulder
and arm on January 28, 1991 while employed as a CNA at Market Square
Health Center.  She suffered a second aggravation injury to the same body
parts on September 23, 1993.  She underwent surgery in 1994 and then
returned to light-duty employment.  In 1994 she resigned from her
employment at Market Square and relocated with her family to another part
of the state.  Smith filed a petition for restoration related to her 1991 injury,
and a petition for award related to her 1993 injury.  Concluding that her
current incapacity is causally related to both dates of injury, the Board
granted the petitions and awarded short-term benefits.  The Board also
concluded, however, that Smith's resignation from Market Square in 1994
constituted a refusal of a bona fide offer of reasonable employment without
good and reasonable cause pursuant to 39-A M.R.S.A. § 214(1),{1} and,
therefore, denied continuing wage-loss benefits. 
	[¶3]  Pursuant to 39-A M.R.S.A. § 322 (Supp. 1996), Smith filed a
petition for appellate review with this Court.  In her petition she raised
several issues.  In our order granting the petition for appellate review,
however, we stated that the petition was granted "as to the second issue
[raised in Smith's petition].  That issue is whether the Board denied benefits
based on the employee's refusal of an offer of reasonable work pursuant to
39-A M.R.S.A. § 214, when the injury was an aggravation of a prior 1991
work injury to which section 214 does not apply."
	[¶4]  On appeal, Smith challenges the Board's application of section
214.  In addition, however, she attempts to raise those issues that were
expressly excluded from consideration by our order granting appellate
review.  Our review of workers' compensation decisions is discretionary. 
39-A M.R.S.A. § 322; Mathieu v. Bath Iron Works,  667 A.2d 862, 865 (Me.
1995).  When we limit a grant of appellate review in a workers'
compensation case to the consideration of certain issues, and expressly
exclude the consideration of other issues raised in the petition for appellate
review, we limit our appellate review to those issues so designated, and we
do not permit the parties to raise those issues excluded pursuant to the
limited grant of the petition.  This rule is based on judicial economy and on
simple fairness to the respondents who, in reliance on our order, address
only the issues to which the petition has been granted.  See Rosetti v. Land
Reclamation, 1997 ME 197, ¶, n. 1, ___ A.2d ___ (Declining to address
employee's issues when those issues had been excluded from consideration
by the order granting appellate review).
	[¶5]  Accordingly, we limit our consideration to whether it was error
for the Board to apply subsection 214(1) to that portion of Smith's
incapacity that relates to a pre-1993 injury.  The implementing section of
the Workers' Compensation Act of 1992, 39-A M.R.S.A. § A-10, provides, in
pertinent part: "So as not to alter benefits for injuries incurred before
January 1, 1993, for matters in which the injury occurred prior to that date,
all the provisions of this Act apply, except that . . .  Title 39-A, sections 211,
212, 213, 214, 215, 221, 306, and 325 do not apply."  Maine Workers'
Compensation Act of 1992, P.L. 1991, ch. 885, § A-10 (effective January 1,
1993) (emphasis added).  Smith contends that because section 214 is
included within those enumerated sections that are intended to have purely
prospective effect, it was error for the Board to apply subsection 214 to her
1991 injury.  We recently rejected a similar contention in Ray v. Carland
Constr., Inc., 1997 ME 206, ¶6, ___ A.2d ___.   Both employees in that
consolidated case suffered injuries prior to 1993 and subsequent injuries
after 1993 to the same body part.  Id. at ¶2, & ¶7.  In both cases, we held
that 39-A M.R.S.A. § 213 applied to the calculation of the employees' entire
award of benefits, including that portion attributable to their pre-1993
injuries.  Id. at ¶6, ¶10 ("[W]e conclude that the Legislature intended the
1992 Act to apply to awards of benefits in successive injury cases when the
most recent injury occurs after the effective date of the Act" Id. at ¶6).  The
rationale of Ray applies to this case.  The Board correctly applied section
214 to Smith's entitlement to benefits, including that portion attributable to
her 1991 injury.  For the reasons previously stated, we do not address
Smith's other contentions.
	The entry is:
			Decision of the Workers' Compensation Board affirmed.
Attorney for employee: Henri A. Benoit, II, Esq., (orally) Bornstein & Hovermale P O Box 4686 Portland, ME 04112 Attorneys for employer: Robert C. Brooks, Esq., (orally) Verrill & Dana P O Box 586 Portland, ME 04112-0586 William O. LaCasse, Esq., (orally) Norman, Hanson & DeTroy P O Box 4600 Portland, ME 04112-4600
FOOTNOTES******************************** {1} Section 214(1)(A) provides: If an employee receives a bona fide offer of reasonable employment from the previous employer or another employer or through the Bureau of Employment Security and the employee refuses that employment without good and reasonable cause, the employee is considered to have withdrawn from the work force and is no longer entitled to any wage loss benefits under this Act during the period of the refusal. 39-A M.R.S.A. § 214(1)(A).