Maine WC Appellate Division Confirms Work Search Evidence Alone May Be Sufficient to Prevail on Petition for Review

Maine Workers' Comp Alert

In Pelletier v. Gerald Pelletier, Inc., Me. WCB App. Div. No. 17-34 (October 30, 2017), the Employee appealed from a decision denying his Petition for Review through which he sought an increase in partial incapacity benefits. The Employee argued that the administrative law judge (ALJ) erred when he held that work search evidence alone cannot, as a matter of law, prove a change of economic circumstances necessary to overcome the res judicata effect of a prior decision.

An employee whose level of incapacity benefits has been established by decree may overcome the res judicata effect of that prior decision with evidence that demonstrates a change of economic circumstances. Here, the ALJ did not evaluate the strength of the Employee’s work search evidence based on the multifactorial test in Monaghan v. Jordan’s Meats, but, instead, interpreted McIntyre v. Great Northern Paper, Inc., 2000 ME 6, to hold that work search evidence, without more, is insufficient, as a matter of law, to prove a change of economic circumstances.

The Appellate Division does not read McIntyre as foreclosing review of the level of partial incapacity when work search evidence is the only proof of changed economic circumstances. As explained by the Appellate Division, the Law Court in McIntyre held that an employee’s work search, coupled with vocational training and obtaining employment, was sufficient to demonstrate an economic change in circumstances. The Law Court did not hold that work search evidence alone was insufficient and the Appellate Division declined to create such a rule. The Appellate Division also noted that prohibiting an injured employee receiving partial incapacity benefits from seeking an increase in benefits after engaging in an extensive work search would thwart “the purpose of the Act to encourage employees to look for post-injury employment.”

Further, as explained by the Appellate Division, in determining whether changed circumstances exist, McIntyre emphasized the need to identify the basis on which the previous award was made. In this case, the Board based its earlier award of partial incapacity benefits mainly on its rejection of the employee’s argument that he was medically totally incapacitated. The Appellate Division found that, under these facts, “it would be particularly inappropriate to bar him from attempting to establish a higher level of partial incapacity based on a work search exploring the availability of work within his restrictions because, before the prior decree, it was not yet clear that "the employee had any work capacity and would, therefore, be expected to seek work.”

The decision was vacated and remanded for additional findings. The ALJ was instructed to assess whether the Employee’s work search evidence “constitutes a significant change in circumstances relating to the extent of his incapacity.”