Monday, July 31, 2017

Interesting Permanent Impairment Decision in Maine

News outlets have been reporting on the case Bailey v. City of Lewiston, decided by the Maine Supreme Judicial Court on July 20. As background, Maine uses permanent impairment ratings as a mechanism to determine caps on receipt of permanent partial disability benefits (called permanent “incapacity” benefits in Maine). When a worker’s permanent incapacity rating exceeds 15%, there is no cap on the number of weeks the worker may receive partial benefits (calculated in Maine as a percentage of the difference between pre-injury average weekly wage and post-injury earning capacity). When impairment is rated at 15% or below, a worker in Maine is limited to 260 weeks of partial incapacity benefits. (The structure is somewhat reminiscent of the Pennsylvania impairment/benefit mechanism at issue in Protz).

The employee in question, Bailey, suffered a respiratory work injury which developed into a reactive airways deficiency syndrome. By administrative award, he began to receive partial incapacity benefits in 2004. In 2007, his employer, the City of Lewiston, Maine, sought review of his award of indemnity benefits and determination of his level of permanent impairment. The administrative official denied any decrease in benefits, but also found that Bailey had reached maximum medical improvement (MMI), and had sustained permanent impairment of 32%. Because the 2007 award established permanent impairment in excess of 15%, Bailey was eligible for partial benefits without a cap.  In 2013, the employer again filed a petition seeking review of Bailey's incapacity, and a second petition seeking to re-determine Bailey’s permanent impairment, introducing an updated medical examination claiming to show permanent impairment had decreased to 0%. An administrative official rejected Bailey's claims that the doctrine of res judicata precluded the employer’s petition to determine the extent of his permanent impairment, concluded that the new medical report constituted a change of circumstances warranting a new permanent impairment rating, and reduced Bailey's permanent impairment level to 0%. The effect of this determination was to immediately end Bailey’s entitlement to further indemnity benefits. Bailey appealed to Maine’s workers’ compensation appellate division, Download Bailey appellate division decision, which concluded that the 2007 determination of permanent impairment as of the date of MMI was final, and therefore that res judicata principles barred re-litigation of that issue. The division also concluded that there existed no significant change of circumstances warranting disturbing Bailey's date of MMI. The employer appealed.

The Maine Supreme Judicial Court sweepingly (perhaps too sweepingly) affirmed the appellate division. The Court stated, “[h]ere, the Appellate Division's conclusion that re-litigation of Bailey's permanent impairment level was barred by the doctrine of res judicata is supported by the statute's plain language and legislative history.”  That broad issue was not what the parties were disputing, however. The precise issue below was whether a decrease in an employee’s permanent impairment, subsequent to the permanent impairment existing as of the date of MMI, may retroactively reinstate a cap on benefits. The Maine Supreme Judicial Court’s opinion may easily be read as establishing that any finding of permanent impairment is res judicata. MMI, however, means (in shorthand) that an employee’s anatomical condition is not reasonably likely to improve; it has nothing to do with whether an employee’s condition might worsen. The Court’s opinion strongly suggests that an injured worker may not petition for additional permanent impairment benefits even if a work-related injury worsens. But as claimant’s counsel, Jim MacAdam (for whom I once worked), has noted to me, such an outcome would be contrary to a long line of Maine precedent. Jim’s compelling example (an actual case) is of an injured worker suffering a work-related knee injury and undergoing a meniscus excision (3% permanent impairment), which leads to a partial knee replacement (10% permanent impairment), to a full knee replacement (15% permanent impairment), and ultimately to a leg amputation (25% permanent impairment). It is difficult to argue that permanent impairment should be based on the earlier phases of the injury. But such a limiting argument, if it is going to be made, should be addressed in the open. The appellate division found only that the date of MMI, and the degree of permanent impairment as of that date, were res judicata as applied to the cap. Nothing more. I certainly understand why the employee intends to move for reconsideration.

My academic interest in this case is that it continues to reveal the clunky interplay of permanent impairment and disability, two distinct concepts that resist continuing legislative efforts to bash them together.    

Michael C. Duff

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