Pratt v. Fraser Paper, Ltd.

ALEXANDER, J.

[¶ 1] Fraser Paper, Ltd., appeals from a decision of a Hearing Officer of the Workers’ Compensation Board granting, in part, its petition for review. The Hearing Officer awarded total incapacity benefits pursuant to 39 M.R.S.A. § 54-B (1989), repealed and replaced by P.L.1991, ch. 885, §§ A-7, A-8 (codified at 39-A M.R.S.A. § 212 (2001)), but reduced that award by the 20% of the employee’s total incapacity which the Hearing Officer attributed to a subsequent nonwork-related heart attack. 39-A M.R.S.A. § 201(5) (2001). Fraser Paper contends that, pursuant to subsection 201(5), the Board should have awarded benefits pursuant to the partial incapacity statute, 39 M.R.S.A. § 55-B (Supp.1989), repealed and replaced by P.L.1991, ch. 885, §§ A-7, A-8 (codified at 39-A M.R.S.A. §§ 213, 214 (2001)), based solely on the contribution of the employee’s work-related knee injury. We agree with Fraser Paper and vacate the Hearing Officer’s decision.

*353I. CASE HISTORY

[¶ 2] The essential facts are not in dispute. The employee, Ernest Pratt, suffered a work-related knee injury on April 25, 1990. Fraser Paper voluntarily paid Pratt total incapacity benefits beginning in July 1990. In 1991, Pratt suffered a heart attack that the Hearing Officer found was not work-related and not related to his work injuries.

[¶ 3] Later in 1991, Pratt’s doctor determined that the knee injury was a permanent impairment corresponding to a 20% whole person impairment. Pratt then began spending a substantial portion of his time in Florida, while spending summers in St. John, New Brunswick. In 1993 and 1995, Pratt was evaluated by his doctor who noted that Pratt was active, was “doing well” and was suffering from “minimal pain and discomfort.”

[¶ 4] In 1995, Pratt saw an orthopedic surgeon in Florida complaining of painful swelling in his injured knee associated with “playing an excessive amount of golf and not limiting his exercise program.” The next summer, another doctor noted swelling in the knee which Pratt reported was because he had “overdone it during the winter walking, line dancing, and playing golf.” In this same assessment, the doctor noted that Pratt was “doing well” with “good stability, no infection, no drainage, no phlebitis, no dysfunction.” A similar assessment was provided in 1997.

[¶ 5] In 1997, Fraser Paper filed a petition for review of incapacity, seeking to reduce benefits. The Hearing Officer concluded that Pratt met his burden to show a lack of available employment within his local community.1

[¶ 6] The Hearing Officer also found that, considering Pratt’s work-related right knee injury alone and excluding consideration of the nonwork-related heart condition, Pratt was capable of “full-time semi-sedentary employment within certain parameters.” The Hearing Officer concluded, however, that based on the “totality of the employee’s physical limitations,” Pratt was physically incapable of performing full-time work in the statewide labor market, and, therefore, was entitled to total incapacity benefits pursuant to former 39 M.R.S.A. § 54-B, repealed by P.L.1991, ch. 885, § A-7.2 See Lamphier v. Bath Iron Works Corp., 2000 ME 121, ¶ 1, 755 A.2d 489, 490; Adams v. Mt. Blue Health Ctr., 1999 ME 105, ¶ 18, 735 A.2d 478, 483-84. The Hearing Officer concluded that Pratt’s heart condition “is the substantial factor in *354the employee’s total incapacity.” (Emphasis added). Although the Hearing Officer concluded that Pratt is entitled to benefits pursuant to the total incapacity statute and that the heart condition was the substantial factor in Pratt’s total incapacity, the Hearing Officer reduced Fraser Paper’s liability by only 20% based on the contribution of Pratt’s nonwork-related heart condition to his incapacity. Fraser Paper challenges only the total incapacity determination and urges that Pratt should have been awarded 80% partial incapacity benefits. We granted Fraser Paper’s petition for appellate review pursuant to 39-A M.R.S.A. § 322 (2001).

II. DISCUSSION

[¶ 7] Subsection 201(5) provides:

5. Subsequent nonwork injuries. If an employee suffers a nonwork-related injury or disease that is not causally connected to a previously compensable injury, the subsequent nonwork-related injury or disease is not compensable under this Act.

39-A M.R.S.A. § 201(5) (2001).

[¶ 8] We first addressed separation of work and nonwork injuries in Mushero v. Lincoln Pulp & Paper Co., 683 A.2d 504 (Me.1996). In Mushero, the employee suffered a work-related heart attack and then a subsequent nonwork-related heart attack. Id. at 505. We construed the former subsection 51(4)3 to require that, in order for an employer to be liable for a subsequent nonwork-injury, the previous work-injury “must in some way bring about or set into motion a sequence of events or conditions that cause the subsequent injury.” The Hearing Officer in Mushero, like the Hearing Officer in the present case, awarded total incapacity benefits pursuant to the total incapacity statute, and then reduced the employer’s liability by 40% of those total benefits attributable to the subsequent nonwork-inju-ry. Id. In Mushero, however, the employee appealed, contending that the Hearing Officer should not have permitted the employer any reduction of its liability for the subsequent nonwork-injury. Id. The issue of which statute for awarding benefits is applicable, section 54-B (total incapacity) or section 55-B (partial incapacity), was not raised in Mushero. Thus, the fact that the employee received benefits pursuant to section 54-B in Mushero is not controlling in the present appeal.

[¶ 9] Fraser Paper contends that, because it is entitled to a reduction in its ongoing liability from total to 80% pursuant to subsection 201(5), the Hearing Officer should have awarded benefits pursuant to the partial incapacity statute, former section 55-B,4 and not pursuant to section *35554-B, the total incapacity statute. The difference is significant because partial benefits under section 55-B are subject to a 400-week limitation and may not be adjusted for inflation. Benefits awarded pursuant to section 54-B are not subject to a 400-week limitation and may be adjusted for inflation. See Lamphier, 2000 ME 121, ¶ 1, 755 A.2d at 490.

[¶ 10] Pratt contends that subsection 201(5) calls for an apportionment between work and nonwork-related causes, and that an apportionment can only be determined after an employee’s level of incapacity is determined based on the totality of the employee’s circumstances, including non-work-related injuries.

[¶ 11] When the Legislature has provided for statutory apportionment, it has stated its intent to create apportionment with express statutory language. For example, section 354, applicable in cases involving multiple work-injuries, expressly provides for an “apportionment” of liability. 39-A M.R.S.A. § 354(3) (2001). Similarly, subsection 201(6) authorizes the Hearing Officer to determine “the portion of the resulting disability that is attributable” to each work-related injury and to apply the law at the time of each injury. 39-A M.R.S.A. § 201(6) (2001) (emphasis added).

[¶ 12] Subsection 201(5), however, provides that when the employee suffers a subsequent nonwork-related injury that is causally unrelated to the work-related injury, this later injury “is not compensable under this Act.” This is not apportionment language. It requires the Hearing Officer to separate out the effects of the subsequent nonwork-injury in calculating the amount of benefits and in determining whether the compensation level for the benefits is governed by the partial incapacity section or the total incapacity section.5

[¶ 13] Employees prove entitlement to 100% partial incapacity benefits by showing the unavailability of work in their local community. See, e.g., Dumond v. Aroostook Van Lines, 670 A.2d 939, 941-42 (Me.1996); Ibbitson v. Sheridan Corp., 422 A.2d 1005, 1009 (Me.1980).6 A work-search need not be undertaken in all cases to show the unavailability of employment. Any competent evidence, including, for example, labor market surveys, may be sufficient to meet the employee’s burden to show the unavailability of work in the em*356ployee’s local community. See, e.g., Poitras v. R.E. Glidden Body Shop, 430 A.2d 1113, 1118 (Me.1981); Warren v. Vinalhaven Light & Power Co., 424 A.2d 711, 714-15 (Me.1981).

[¶ 14] In the present case, the Hearing Officer concluded that Pratt met his burden of showing the lack of available work in his community to establish entitlement to 100% partial incapacity benefits.7 Fraser Paper does not contest this conclusion as a basis for a partial incapacity determination. Accordingly, we do not address it farther.

[¶ 15] Thus, Pratt is entitled to 100% partial incapacity benefits (with a 20% reduction, not contested by Fraser Paper, due to the subsequent nonworkrelated injury). Pratt cannot be awarded benefits pursuant to the total incapacity statute, former section 54-B. The Hearing Officer found that without consideration of the subsequent nonwork-related injury, Pratt would be physically capable of performing full-time work in existing semi-sedentary employment. The Hearing Officer also found, considering the effects of both his work and subsequent nonworkcondition, that Pratt is physically incapable of performing full-time work in the statewide labor market. Because Pratt, but for the subsequent heart attack, would be capable of performing full-time work in the state labor market, he is not entitled to an award of benefits pursuant to the total incapacity statute. To conclude otherwise would make Pratt’s subsequent nonworkrelated injury compensable in violation of subsection 201(5).

The entry is:

The decision of the Workers’ Compensation Board is vacated. Remanded to the Workers’ Compensation Board for further proceedings consistent with the opinion herein.

. This finding, without more, would entitle Pratt to 100% partial incapacity pursuant to former 39 M.R.S.A. § 55-B, amended by P.L. 1991, ch. 615, § D-7, repealed by P.L.1991, ch. 885, § A-7. See, e.g., Dumond v. Aroostook Van Lines, 670 A.2d 939, 941-42 (Me.1996); Ibbitson v. Sheridan Corp., 422 A.2d 1005, 1009 (Me.1980).

. At the time of Pratt’s 1990 injury, former section 54 — B provided, in pertinent part:

While the incapacity for work resulting from the injury is total, the employer shall pay the injured employee a weekly compensation equal to % his average gross weekly wages, earnings or salary, but not more than the maximum benefit under section 53-B, nor less than $25 weekly.
1. Annual adjustment. Beginning on the 3rd anniversary of the injury, weekly compensation under this section shall be adjusted annually ....
2. Limitation. Any employee who has reached maximum medical improvement and is able to perform full-time remunerative work in the ordinary competitive labor market in the State, regardless of the availability of such work in and around his community, is not eligible for compensation under this section, but may be eligible for compensation under section 55-B ....

39 M.R.S.A. § 54—B, repealed by P.L.1991, ch. 885, § A-7.

. Our decision in Mushero v. Lincoln Pulp & Paper Co., 683 A.2d 504, 506 (Me.1996), interpreted former 39 M.R.S.A. § 51(4) (Supp.1992), repealed and replaced by P.L.1991, ch. 885, §§ A-7, A-8. Because the language of former subsection 51(4) and current subsection 201(5) are identical, our interpretation in Mushero also governs our interpretation of subsection 201(5). See Mushero, 683 A.2d at 504 n. 1.

. For 1990 injuries, the partial incapacity statute provided, 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 2k the difference, due to the injury, between his average gross weekly wages, earning or salary before the injury and the weekly wages, earnings or salary which he is able to earn after the injury, but not more than the maximum benefit under section 53-B. Payments under this section shall not continue for longer than 400 weeks after maximum medical improvement.
For purposes of determining an injured employee's degree of incapacity under this section, the commission shall consider the
*355availability of work that the employee is able to perform in and around the employee’s community and the employee’s ability to obtain such work considering the effects of the employee’s work-related injury. If no such work is available in and around the employee’s community or of the employee is unable to obtain such work in and around the employee's community due to the effects of a work-related injury, the employee’s degree of incapacity under this section is 100%.

39 M.R.S.A. § 55-B (Supp.1989), repealed by P.L.1991, ch. 885, § A-7.

. There is no indication of the purpose of subsection 201(5) in the legislative history of title 39-A. While there is discussion in the legislative history of its predecessor statute, former 39 M.R.S.A. § 51(4), repealed by P.L. 1991, ch. 885, § A-7, there is nothing about the applicable statutory basis for benefits in cases when an employer's liability for total incapacity is reduced. See, e.g., Legis. Rec. 1267 (1991) (Statement of Rep. Rand); see also L.D.s 1954, 1957, 1981, 2423 (115th Legis.1991); Comm. Amend. A to L.D.1957, No. H-589 (115th Legis.1991).

. Moreover, in order to prove entitlement to total incapacity benefits, the employee first must show the unavailability of work in the local community, and second, show the physical inability to perform fuE-time work in the state labor market, regardless of availability. See Lamphier v. Bath Iron Works Corp., 2000 ME 121, ¶ 1, 755 A.2d 489, 490; Adams v. Mt. Blue Health Ctr., 1999 ME 105, ¶ 18, 735 A.2d 478, 483-84. Accordingly, a work-search is generally used to prove either 100% partial incapacity or total incapacity.

. The Hearing Officer concluded that Pratt met his burden to show that there is no "available work in the employee's community ... within the employee’s physical ability, considering his age, education, experience, and multiple physical conditions.” (Emphasis added).