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Johnson v. Shaw's Distribution
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 191
Docket:	WCB-99-572
Argued:	September 5, 2000
Decided:	October 31, 2000




	[¶1]  John Johnson Jr. appeals from the decision of a Hearing Officer
of the Workers' Compensation Board granting his petition for award for
injuries in 1993 and 1995, but calculating ongoing partial incapacity benefits
to reflect a full-time work capacity.  Johnson contends that the Board erred
in failing to conclude that full-time work in Johnson's community was
"unavailable" during the period when Johnson was enrolled in vocational
rehabilitation pursuant to an order of the Workers' Compensation Board
Rehabilitation Assistant Administrator.  We affirm the decision.
	[¶2]  At the time of the hearing, Johnson was a 29-year-old college
graduate with a degree in psychology.  He had suffered work-related injuries
to his left and right arms in 1993 and 1995 while working as a warehouse
laborer for Shaw's Distribution Center.  Shaw's voluntarily paid total benefits
without prejudice following the injury. 
	[¶3]  After his injuries, Johnson began exploring the possibility of
earning a master's degree in school psychology in order to improve his
earning potential.  Shaw's disputed Johnson's need for additional education
and a hearing was held to determine whether Johnson was entitled to
rehabilitation services pursuant to 39-A M.R.S.A. § 217 (Pamph. 1999).  The
Assistant Administrator of Rehabilitation referred Johnson to a vocational
rehabilitation specialist.  The specialist submitted a vocational evaluation
concluding that Johnson could perform full-time work as a security guard
earning approximately $120 a week, but recommending that Johnson return
to school in either criminal justice or sociology/psychology.  The specialist
prepared a vocational rehabilitation plan, consistent with Johnson's
requests, recommending a return to graduate study in psychology.  Based on
the specialist's recommendations, the Rehabilitation Assistant Administrator
issued a "Summary Decision" ordering vocational rehabilitation consisting of
full-time study at the University of Southern Maine to obtain a master's
degree in psychology.  See 39-A M.R.S.A. § 217(2) (Pamph. 1999).  Johnson
was accepted to a two-year graduate study program at USM in the fall of
	[¶4]  Johnson then filed petitions for award seeking benefits related to
his 1993 and 1995 injuries.  The Hearing Officer granted Johnson's
petitions for award, but concluded that, notwithstanding his enrollment in
full-time graduate study, Johnson failed to show that full-time work was
unavailable as a result of his injury.  The Hearing Officer awarded partial
incapacity benefits in the amount of $272.27, based on a theoretical post-
injury wage of $5.25 an hour for a forty-hour week, or $210 a week.  The
Hearing Officer reaffirmed its decision in response to the employee's
motion for further findings of fact and conclusions of law, and we granted
Johnson's petition for appellate review pursuant to 39-A M.R.S.A. § 322
(Pamph. 1999). 
	[¶5]  Although Johnson does not actually dispute the finding that he
would have been able to obtain full-time employment, he asserts that the
Hearing Officer erred in two respects: first, he contends that the Hearing
Officer's decision conflicts with the prior decision of the Rehabilitation
Assistant Administrator ordering the implementation of a rehabilitation
plan, and thus is barred by principles of res judicata; and second, he
contends that the Board's conclusion that full-time work is available to him,
even though he is enrolled and active in vocational rehabilitation, is
inconsistent with the purposes and policy of vocational rehabilitation, and
therefore could not have been within the contemplation of the Legislature. 
We reject both contentions.

A.  Res judicata

	[¶6]  Res judicata bars the relitigation of "'an entire cause of action.'"
Johnson v. Samson Constr. Corp., 1997 ME 220, ¶ 6, 704 A.2d 866, 868
(quoting Beegan v. Schmidt, 451 A.2d 642, 644 (Me. 1982)).  The doctrine
applies only when:  "(1) the same parties or their privies are involved in
both actions; (2) a valid final judgment was entered in the prior action;
(3) the matters presented for decision in the second action were, or might
have been, litigated in the first action," Dep't of Human Servs. v. Comeau,
663 A.2d 46, 48 (Me. 1995); and (4) both cases involve the same cause of
action, Camps Newfound/Owatonna Corp. v. Town of Harrison, 1998 ME 20,
¶ 11, 705 A.2d 1109, 1113.  
	[¶7]  Here, the decisions at issue do not meet the requirements of the
third or fourth element.  The matters presented for decision by the Hearing
Officer are entirely different from the matters addressed by the
Rehabilitation Assistant Administrator, and in neither forum could Johnson
have obtained the relief sought in the other forum.
	[¶8]  The statutory obligation of the Hearing Officer is to determine an
employee's "capacity to earn" for purposes of awarding benefits.  The
applicable statutes providing entitlement to partial incapacity benefits are
39-A M.R.S.A. §§ 213 and 214 (Pamph. 1999).  Pursuant to subsection
213(1), the Hearing Officer must award "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."  39-A
M.R.S.A. § 213(1) (Pamph. 1999) (emphasis added).  
	[¶9]  The responsibility of the Rehabilitation Assistant Administrator,
in contrast, is to determine an employee's eligibility for vocational
rehabilitation, and, in appropriate cases, to order implementation of a
rehabilitation plan that is reasonably necessary to return the employee to
"suitable employment."  39-A M.R.S.A. § 217.{2}  The Rehabilitation
Administrator is not required or authorized to act pursuant to section 213,
and the Hearing Officer is not authorized to consider or implement a
rehabilitation plan pursuant to section 217.
	[¶10]  Because the Rehabilitation Assistant Administrator and the
Hearing Officer perform different functions pursuant to the Act, their
functions are not interdependent and their results may occasionally appear
to conflict.  The conflict exists only in appearance, however, and not in the
execution.  The decision of the Rehabilitation Assistant Administrator to
implement a vocational rehabilitation plan is not equivalent to a
determination of an employee's "ability to earn."  Nor is the Hearing
Officer's determination of the employee's ability to earn in actual conflict
with a rehabilitation plan that would make it possible for the employee to
obtain future earnings at a higher rate.  
	[¶11]  The Assistant Rehabilitation Administrator's finding that
Johnson is entitled to full-time vocational rehabilitation did not preclude the
Hearing Officer from making an independent determination regarding
Johnson's earning capacity as a matter of res judicata.

B.  Availability of Employment

	[¶12]  Johnson next challenges the Hearing Officer's finding that work
is available to him, notwithstanding his enrollment in the rehabilitation
program.  Traditionally, an employee's earning capacity has been evaluated
according to (1) the employee's physical capacity, (2) the availability of
employment in his local community, and (3) other nonwork-related factors
affecting employability, such as age, training, education, work history, etc. 
See, e.g., Dailey v. Pinecap, Inc., 321 A.2d 492, 496 (Me. 1974).  Pursuant to
the so-called "work search rule," an employee with a partial physical
capacity can prove entitlement to 100% partial incapacity benefits by
showing that work in the employee's local community is unavailable due to
the work injury.{3}  Bureau v. Staffing Network, Inc., 678 A.2d 583, 588 (Me.
	[¶13]  Johnson contends that, although he might be physically capable
and otherwise qualified to perform and obtain work, full-time work is
"unavailable" to him due to his full-time enrollment in school.  The Hearing
Officer, however, interpreted "available employment" according to its
traditional meaning, i.e., the ability of the employee to obtain and perform
available work in the relevant labor market, without regard to Johnson's
enrollment in vocational rehabilitation.  
	[¶14]  Johnson concedes that there is no express language in the Act
prohibiting a Hearing Officer from ordering partial benefits during the
implementation of a vocational rehabilitation plan, nor is there any authority
from this Court requiring a Hearing Officer to regard work as unavailable
during times when an employee is enrolled in vocational rehabilitation.  We
cannot conclude that the Hearing Officer's application of the law is error in
the absence of statutory or judicial authority requiring a different result, nor
do we find sufficient evidence of legislative intent in this regard to require
further modification of the traditional "availability" analysis.{4}
	[¶15]  Johnson next contends that the goals of vocational
rehabilitation will be thwarted if employees are required to choose between
employment and vocational rehabilitation.  We do not agree, nor do we agree
that the Hearing Officer's interpretation leads to absurd results.  
	[¶16]  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 result 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
	[¶17]  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.
The reduction in income will result in such cases, not from the injury or its
sequelae, but from the employee's choice to remove himself from the labor
market during his efforts to improve his future earning opportunities.{5} 
	[¶18]  In any case, employees enrolled in a rehabilitation plan will
receive no less in benefits during the period of vocational rehabilitation than
they would receive in the absence of vocational rehabilitation.  It would not
be unreasonable for the Legislature to conclude that the employer should not
bear the burden of subsidizing lost income resulting from enrollment in
vocational rehabilitation.  
	The entry is:
Decision of the Workers' Compensation Board

Attorneys for employee: James G. Fongemie, Esq., (orally) Jeffrey Neil Young, Esq. McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A. P O Box 5000 Topsham, ME 04086-5000 Attorney for employer: Mark V. Franco, Esq., (orally) Thompson & Bowie P O Box 4630 Portland, ME 04112-4630
FOOTNOTES******************************** {1} . We have previously addressed section 217 in only one case, McAdam v. United Parcel Serv., 2000 ME 5, ¶ 6, 743 A.2d 741, 743, in which we held that, pursuant to the language of subsection 217(2), which provides that the Board's determination of a plan is "final," an employer cannot appeal a decision of the Rehabilitation Assistant Administrator ordering the implementation of a plan until, and unless, the employer is ultimately ordered to pay the costs following the employee's successful completion of the plan. Id. (citing 39-A M.R.S.A. § 355(7) (Pamph. 1999)). {2} . The Assistant Rehabilitation Administrator and the Hearing Officer were in agreement in the present case that Johnson has a work capacity to earn at least half of his pre- injury wage. Nevertheless, the Rehabilitation Assistant Administrator ordered vocational rehabilitation based on his belief that rehabilitation was reasonably necessary and appropriate to return Johnson to suitable employment. {3} . The employee's physical ability to perform full-time work in the statewide labor market, regardless of availability, may also affect the employee's entitlement to benefits for total incapacity. See Lamphier v. Bath Iron Works Corp., 2000 ME 121, ¶¶ 9-10, 755 A.2d 489, 493-94 (interpreting former 39 M.R.S.A. § 55-B (Supp. 1991) (applicable to injuries occurring after October 17, 1991, and before January 1, 1993), repealed by P.L. 1991, ch. 885, § A-7); Adams v. Mt. Blue Health Ctr., 1999 ME 105, ¶ 17, 735 A.2d 478, 483 (interpreting former 39 M.R.S.A. § 54-B (1989) (applicable to injuries occurring after November 20, 1987, and before October 17, 1991), amended by P.L. 1991, ch. 615, § D-6). {4} . As a practical matter, work is not "unavailable" to Johnson. Employment can often be combined with a substantial course of study. {5} . The Hearing Officer found that Johnson was capable of earning $5.25 an hour and that his work search was insufficient to demonstrate that there was no work within his physical capacity available to him in the competitive labor market.