April 4, 2019 Article

Maine WC Alert: Appellate Division Reiterates Requirement to Trigger Retirement Presumption

Maine Workers' Comp Alert

Maine Workers' Comp Appellate Division Reiterates That Working in Customary Job Until Retirement Constitutes “Termination of Active Employment” Sufficient to Trigger the Retirement Presumption

In Capitan v. NewPage Paper (WCB 19-10 [App. Div. April 2, 2019]), the employee appealed a decision denying her Petitions for Restoration and Review due to the “retirement presumption.” Under the “retirement presumption” (Section 223 of the Act), an employee who terminates active employment and is receiving nondisability pension or retirement benefits is presumed not to have a loss of earnings as the result of compensable injury or disease under this Act. This presumption may be rebutted only by evidence that the employee is medically totally incapacitated.

The employee worked at the NewPage paper mill, performing jobs that included cleaning paper machines, janitorial work, and work in the quality assurance lab. She officially retired from NewPage in December 2011 and began to receive a nondisability pension. Shortly thereafter, she started receiving Social Security retirement benefits, retroactive to January 1, 2012. In her last days at NewPage, the employee performed modified janitorial work and work in the quality assurance lab. She had some work restrictions due to work injuries. At the time of retirement, however, she was working full-time and no doctor had taken her out of work.

The Appellate Division affirmed the administrative law judge’s (ALJ’s) finding that the employee “terminate[d] active employment” when she retired. The employee relied on an opinion of a section 312 examiner who, having examined her after she retired, opined: “the culmination of her multiple sites with orthopedic problems [was] consistent with her decision to retire.” However, at the time of retirement, the employee was performing full-time work consistent with the work she had been performing for years before her retirement, and that, although she was working with restrictions, no doctor had taken her out of work. The section 312 examiner’s opinion could have possibly foreclosed work during that period, but Ms. Capitan did in fact work until her retirement. Thus, the employee terminated active employment when she retired. Moreover, the employee failed to rebut the presumption with evidence that she was unable to perform work suitable to her qualifications.

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