dissenting.
I respectfully dissent because I believe the issue here cannot be dismissed as res judicata. As the court notes, under 39 *1236M.R.S.A. § 100,1 prior to its amendment in 1981, a petitioner had to submit comparative medical evidence showing a change in the degree of incapacity after the date of the Commission’s original decision or date of the execution of the agreement between the parties approved by the Commission before a compensation payment scheme would be increased, diminished, restored, or discontinued. Under the new statutory scheme a petitioner, whether employer or employee, need only produce such evidence as will support the factual finding of the Commission as to the present degree of incapacity of the employee. I agree that the new section 100 does not provide a petitioner with a hearing de novo on all issues previously litigated. However, the present statute not only allows but, indeed, requires the Commission to review upon petition of either party the “employee’s present degree of incapacity” due to an established work-related injury.
In the case before us, Lenwood Dilling-ham applied for, and received, an award of compensation for injuries incurred working for Andover Wood Products, Inc. For the reasons expressed in Canning, both the initial finding of a work-related injury and the finding of the degree of incapacity pri- or to June 28,1982, are res judicata. Canning, 444 A.2d at 390. Dillingham’s petition for review, however, differs significantly from the petition rejected in Canning.
In the original Canning proceeding, the Commissioner decided Canning had not suffered a heart attack in a work incident. The Commissioner initially found that Canning suffered from a pre-existing arterio-sclerotic heart condition that was temporarily made more painful by the work injury. Id. at 391. The Commissioner found further that though the pain caused by the work incident totally disabled Canning during the period of his hospitalization, it subsequently subsided. Chest pains thereafter were caused by the underlying condition. The recurring pain was not compensable because the underlying condition did not arise out of Canning’s employment. Id.
In the instant case, the original, final determination of the Commission was that Dillingham suffered a work-connected lower back injury. There has been no attempt to relitigate that issue, nor the issue of his work incapacity prior to June 28,1982, as a result of that injury. Unquestionably, Dill-ingham’s incapacity resulting from his work injury prior to June 28, 1982, had been finally determined. The issue properly addressed and determined by the Commission upon Dillingham’s first petition for review was his present work incapacity, if any, since June 28, 1982, which resulted from his work injury. Furthermore, the record reflects ample, competent evidentia-ry support for the Commission’s determination that Dillingham has a present total incapacity.
*1237At the hearing, the Commission found a causal connection between Dillingham’s current back pain and his work-related back injury of May 21, 1981. The Commission based its finding “on the extremely credible testimony of Mr. Dillingham” and on the medical testimony of a Dr. Green-leaf. The Commission found that “Len-wood Dillingham is totally incapacitated and unemployable from June 28, 1982 to the present ... due to the back injury of May 21, 1981.” Additionally, it is worth noting precisely the following facts:
Mr. Dillingham is 88 years old, has an eighth grade education and lives with his parents in West Sumner, 19 miles from South Paris. It is apparent ... from his testimony at the hearing that Mr. Dilling-ham was in obvious and not exaggerated back pain and agony throughout his testimony. The Commission finds also that Mr. Dillingham had difficulty understanding simple questions ... and demonstrated a very limited vocabulary. Stated charitably, Mr. Dillingham would probably have difficulty performing even simple mental tasks. Given Mr. Dilling-ham’s work experience doing heavy unskilled work in the woods and saw mills of western Maine ... the employee has no vocational assets for employment, now that his back pain prevents heavy lifting and bending. Sedentary physical work capacity is irrelevant considering the employee’s limited qualifications.
From these facts the Commission reached its conclusion that Dillingham was entitled to total compensation from June 28,1982 to the present. Significantly, this first petition for review sought a determination of his earning incapacity resulting from his previously adjudicated work-connected injury. Moreover, he made no claim for weekly compensation prior to June 28, 1982, the date of the earlier decision. Clearly he could not get a redetermination of his earning incapacity for that period. The time period covered in the Commission’s decision on the petition for review — from June 28, 1982, to the present — in no way infringed upon the Commission’s prior decision and the final adjudication of all issues in the case up to the date of that decision.
Nothing in the language of this statute as interpreted by the Commission is contrary to the legislative intent. We stated in Kelley v. Halperin, 390 A.2d 1078, 1080 (Me.1978), that “the construction of a statute utilized by those whose duty it is to make the statute operative is entitled to great deference by a court when called upon to construe the statute.” By failing to affirm the Commission, our court ignores its own sound advice. In this case, as in Dunton v. Eastern Fine Paper Co., 423 A.2d 512, 518 (Me.1980), we have no role but to determine “whether there is competent evidence to support the Commissioner’s findings.” Clearly, such evidence exists here.
Res judicata is no bar to a first petition founded on a work-related present incapacity. Because this proceeding determined a present incapacity resulting from a previously identified work-related injury, because the evidence sufficiently supported the finding of incapacity and the award of further compensation, and because the Commission’s ruling did not address issues which had already been authoritatively and finally settled, I would affirm the compensation award.
. 39 M.R.S.A. § 100(1) & (2) (Supp.1983) reads in pertinent part:
1. Relief available. Upon the petition of either party, a single commissioner shall review any compensation payment scheme required by this Act for the purposes of ordering the following relief, as the justice of the case may require:
A. Increase, decrease, restoration or discontinuance of compensation; or
B. Extension, reduction, restoration or discontinuance of vocational rehabilitation.
2. Standard for review. The basis for granting relief under this section is as follows:
A. On the first petition for review brought by a party to an action, the commissioner shall determine the appropriate relief, if any, under this section by determining the employee’s present degree of incapacity or need of vocational rehabilitation. For purposes of a first petition brought under this section, evidence of the employee’s medical condition at the time of an earlier determination or approved agreement is relevant only if it tends to prove the present degree of incapacity.
B. Once a party has sought and obtained a determination under this section, it is the burden of that party in all proceedings on his subsequent petitions under this section to prove by comparative medical evidence that the employee’s earning incapacity attributable to the work-related injury has changed since that determination.
The court’s discussion of Dillingham’s petition for review appears to assume it is being brought under subsection (2)(B). Subsection (2)(A) provides the proper standard for review.