Alert: Maine WC Board Appellate Division Addresses Several Cases Dealing with the Application of the “Retirement Presumption”

Maine Workers' Compensation Alert

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.

In Wing v. NewPage, WCB App. Div. No. 16-5 (March 7, 2016) the employee was working modified-duty, receiving partial incapacity benefits, when he retired from active employment. The employee argued that his retirement was “compatible” with his work restrictions, that the work he was performing before retirement exceeded his restrictions and that he was essentially “forced” to work beyond those restrictions. The ALJ and Appellate Division rejected these arguments. The presumption was found to apply because the employee continued working, albeit light-duty, up to the date of retirement from active employment.

In Hallock v. NewPage, WCB App. Div. No. 16-6 (March 7, 2016) the employee retired from active employment at NewPage but first used accrued vacation time. The employee argued that the presumption did not apply because he had stopped working before retirement, because he had been on vacation. The Appellate Division rejected this, finding that the employee was actively employed at the time of retirement and the he was receiving a nondisaiblity pension: “Mr. Hallock was performing his customary work when he decided to utilize accrued vacation to get him to his retirement date. . . [he] did not take sick leave or otherwise request workers’ compensation benefits . . . . [he] was performing his customary work of his job, albeit with some difficulty, as of the date that he left work and took advantage of accrued vacation.” Judge Stovall dissented, arguing that Hallock was not "actively employed" when he actually retired and that the presumption should not apply because the employee technically did not work a day after he went on a scheduled vacation.

In Casey v. NewPage, WCB App. Div. No. 16-9 (March 22, 2016), the employee claimed she was not "actively employed" when she retired because she was working with restrictions for financial reasons despite her injuries, which constituted coercion by the employer. The Appellate Division affirmed the ALJ's denial of incapacity benefits finding the retiree presumption applied because the employee was actively employed at the time of retirement.