Ray v. Carland Construction, Inc.

DANA, Justice,

with whom LIPEZ, Justice, joins, dissenting.

[¶ 11] I agree with the Court’s holding in Ray v. Carland Construction, Inc. that an employee’s average weekly wage in a successive injury case may be based on the wage at the time of the most recent injury when the employee’s earnings at the time of that later injury are not affected by an earlier work-injury. I also agree that the issue whether the two injuries are equally contributing is irrelevant to the determination of the applicable average weekly wage. I do not agree, however, with the remainder of the Court’s decision in Ray and in Pelletier v. Maine Med. Ctr. holding that the 39-A M.R.S.A. § 213 repeal of the inflation adjustment for partial incapacity benefits, and the 260-week limitation for the receipt of partial benefits, may be applied to that portion of an employee’s benefits that relate to a pre-1993 injury, if that injury combines with a subsequent injury after 1993.

[¶ 12] I cannot agree with the Court’s conclusion that the general legislative goal of cost-reduction justifies altering benefits for injuries that pre-date the effective date of the Act, in the face of an express legislative purpose not to alter those benefits. Maine Workers’ Compensation Act of 1992, P.L. 1991, ch. 885, § A-10 (effective January 1, 1993). Section A-10 provides: “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 [maximum benefit levels], 212 [total incapacity benefits], 213 [partial incapacity benefits], 214 [determination of partial incapacity benefits], 215 [death benefits], 221 [coordination of benefits], 306 [statute of limitation], and 325 [attorney’s fees], do not apply.” Maine Workers’ Compensation Act of 1992, P.L.1991, ch. 885, § A-10 (effective January 1,1993) (emphasis added).6 The plain import of this language is *653that these sections were not to be applied to the determination of benefits for pre-1993 injuries. Dumond v. Aroostook Van Lines, 670 A.2d 939, 941 n. 1 (Me.1996); Marchand v. Eastern Welding Co., 641 A.2d 190, 191, n. 1 (Me.1994). As we have stated, “a clearer statement of legislative intent ... is hard to imagine.” Morgan-Leland v. University of Maine, 632 A.2d 748, 749 (Me.1993).7

[¶ 13] Notwithstanding the express legislative intent that section 213 does not apply to pre-1993 injuries, the Court in Ray relies on our decision in McDonald v. Rumford School Dist., 609 A.2d 1160, 1161 (Me.1992), to hold that the repeal of the inflation adjustment in section 213 may be applied to Ray’s 1987 back injury because he suffered a subsequent back injury in 1993. In Pelletier v. Maine Med. Ctr., the Court relies again on McDonald to hold that the 260-week dura-tional limitation of section 213 may be applied to a pre-1993 injury when the employee suffers a subsequent aggravation injury after 1993.

[¶ 14] The statutory provisions at issue in this ease, sections A-10 and 213, are distinguishable from the statute at issue in McDonald. In that case, McDonald suffered his first work-related injury in 1986 when the law provided an inflation adjustment for total incapacity benefits, 39 M.R.S.A. § 54-A (Supp.1987), repealed and replaced by P.L. 1987, ch. 559, part B, §§ 26, 27 (codified at 39 M.R.S.A. § 54-B (1989)), and a second work injury in 1988 after the total incapacity statute had been amended to delay the application of the inflation adjustment until three years after the injury, 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 (Supp.1996)). With respect to McDonald’s average weekly wage, we held that when an employee’s earnings at the time of an injury are not reduced as a result of a prior injury, the average weekly wage at the time of the latter injury should be used in the calculation of benefits. Id. Our conclusion was based on the practical reality that, if an employee’s incapacity has resolved and the employee is earning at his or her full potential at the time of the second injury, the latter average weekly wage will most accurately reflect that employee’s uninjured earning capacity. See Nielsen v. Burnham & Morrill, Inc., 600 A.2d 1111, 1112 (Me.1991) (“[t]he purpose of calculating an average weekly wage is to arrive at an estimate of the ‘employee’s future earning capacity as fairly as possible’ ”) (quoting Fowler v. First Nat’l Stores, Inc., 416 A.2d 1258, 1260 (Me.1980)).

[¶ 15] Our rationale with respect to the applicable average weekly wage does not support our decision in McDonald to apply the inflation adjustment provision at the time of the second injury to McDonald’s benefits for total incapacity. McDonald’s entitlement to an inflation adjustment for the receipt of total incapacity benefits has nothing to do with the employee’s average weekly wage or whether the employee’s earnings at a given time best reflect his or her uninjured earning capacity. The rationale for our decision in McDonald to apply the inflation adjustment at the time of McDonald’s second injury was based on the express legislative intent of the three-year waiting period to reduce compensation benefits. We stated that “[t]he Legislature, in an effort to curtail the costs of workers’ compensation, was free to limit the inflation adjustment of the average weekly wage, and to provide that it apply to all injuries occurring after the effective date of the legislative change.” Id. at 1161 (emphasis added).

[¶ 16] Unlike the three-year waiting period provision at issue in McDonald, we are *654not dealing simply with a statute intended to reduce compensation benefits, but a statute that expressly states that section 213 should not be applied to pre-1993 injuries, “[s]o as not to alter benefits for injuries incurred before January 1, 1993.” P.L.1991, ch. 885, § A-10 (emphasis added). Unlike the statute at issue in McDonald, therefore, the Legislature has not only expressed an intent that certain provisions of title 39-A should not be applied retroactively to injuries that pre-date the effective date of the Act, but also a reason for that intent — to insure that benefits for pre-1993 injuries are not altered. Although we have recognized that a general goal of the Maine Workers’ Compensation Act of 1992 was to reduce costs in the workers’ compensation system, that general purpose does not compel the conclusion that section 213 was intended to apply to pre-1993 injuries in the face of express legislative intent to the contrary. Had the Legislature intended to cut costs in the workers’ compensation system by applying section 213 to all injuries in a successive injury case, it could have expressly drafted the statutory language to that effect.

[¶ 17] In addition to running counter to the express legislative intent not to alter benefits for pre-1993 injuries, the Court’s decision also runs afoul of the goal of encouraging injured employees to return to work.8 The Court’s rationale, if taken to its logical conclusion, could have wide-ranging ramifications to injured employees who return to work in 1993 and thereafter. Employees with pre-1993 injuries who are reinjured after 1993 could not only lose their entitlement to an inflation adjustment and be subject to a shorter time period for the receipt of benefits, but could also, arguably, lose their right to statutory maximum benefit levels, 39-A M.R.S.A. § 211, specific loss benefits for the loss of a body part, 39-A M.R.S.A. § 212(3), their right to a more favorable coordination of workers’ compensation benefits with other benefits, 39-A M.R.S.A. § 221, employer-paid attorney fees, 39-A M.R.S.A. § 325, and could conceivably be subject to a shorter statute of limitations, 39-A M.R.S.A. § 306. Moreover, in addition to discouraging employees from returning to work, today’s decision could also discourage employees with pre-1993 injuries from reporting injuries after. 1998. While the Legislature may have intended to reduce compensation benefits, there is no evidence of a legislative intent to discourage the filing of valid workers’ compensation claims.

[¶ 18] Because the Act is clear that section 213 does not apply to injuries that predate January 1,1993, and that the purpose of this rule is to insure that benefits for pre-1993 injuries are not altered, I would hold that Ray is entitled to the inflation adjustment in effect at the time of his 1987 injury for that portion of his incapacity (60%) attributable to that injury. I would also hold that Pelletier is entitled to a determination of benefits according to the law in effect in December 1992 for that portion of her incapacity (50%) attributable to her 1992 injury.

. The retroactivity issue is also discussed in the legislative debates. See Legis.Rec. H-55-57 (3d Spec.Sess.1991) (discussing a proposed amendment to section A-10).

. In the major legislative reforms to the Workers’ Compensation Act in recent years, the Legislature has expressly stated whether it has intended the legislative changes to affect employees with injuries that predate the effective date of the legislation. When the Legislature enacted large-scale reforms to former title 39 in 1985 and 1989, for example, it expressly provided that the provisions were to be applied only to injuries occurring "on or after the effective date” of the statute. P.L.1985, ch. 372, Emergency Clause; P.L.1987, ch. 559, part B, § 54. Similar language was appended to the workers’ compensation amendments of 1991, P.L.1991, ch. 615, § D-26. When the Legislature has intended a statute to apply retrospectively to injuries predating the effective date, it has specifically expressed that intent in statutory language. See, e.g., P.L.1991, ch. 615, §§ A-20, D-25 (exclusion of fringe benefits from average weekly wage to be applied retroactively).

. As we have previously recognized, employees with preexisting injuries are especially susceptible to aggravation injuries. See Bryant v. Masters Mach. Co., 444 A.2d 329, 336-337 (Me.1982). An employee receiving benefits for a pre-1993 back injury, for example, may think twice before going back to work if that employee believes that his or her benefits, established under an earlier law, may be limited simply because the employee has the misfortune to receive a second work injury.