Maine WC Alert: Appellate Division Affords Great Deference to ALJ’s Determination of Earning Capacity

Maine Workers' Comp Alert

In Jodrey v. Hibbard Skilled Nursing Center, Inc., WCB App. Div. No. 18-16 (April 11, 2018), the Administrative Law Judge (ALJ) found the employee’s work search insufficient to demonstrate that work was unavailable, but awarded 50% partial incapacity benefits because her pre-injury wage was “modest” and imputing a full-time earning capacity would result in a finding that she has almost zero incapacity despite her restrictions.

The Appellate Division affirmed, finding the ALJ evaluated relevant factors which support the determination that the employee had a diminished ability to earn. The Appellate Division noted, “Administrative Law Judges are not required to follow any mathematical formula when evaluating an employee’s earning capacity.” Further, "ALJ’s may consider a number of relevant factors to arrive at a figure that accurately reflects an employee’s ability to earn wages.” A determination of earning capacity is a factual finding which will only be overturned if unsupported by competent evidence in the record.