Alison Denham represented the defendant/employer, prevailing on appeal in a case of interest to Maine’s workers’ compensation community This was a case of first impression, construing the “loss of industrial use” provision of the Maine Workers’ Compensation Act. Claims under section 212(2)(G) of the Act have been rare since this provision was enacted as part of the 1992 Act, but are on the rise. Such awards are extraordinarily large, ranging from approximately $320,000.00 for an average earner, to $459,264.00 for a worker entitled to the current maximum rate. Section 212(2) creates a conclusive presumption and provides for awards of 800 weeks benefits for certain catastrophic injuries, such as multiple amputations or total loss of sight. At issue here was subsection (G) which allows such awards for “permanent and total loss of industrial use of both legs, hands, or arms, or one leg and one arm.

The Workers’ Compensation Board awarded 800 weeks of benefits to a 79 year old retiree based on carpal tunnel syndrome, which had been significantly complicated by degenerative aging processes. Her original claim for his injury had been denied by the Board in 2000, on the grounds that her employer had continuously made suitable light work available to her, which she declined when she opted to retire at age 70. A different hearing officer concluded in a second round of litigation in 2006, that retirement and the viable job offer were irrelevant as defenses to a claim under Section 212(2)(G.)

The Employer appealed directly to the Maine Supreme Court sitting as the Law Court. In its original opinion, the Court vacated the entire award of benefits, setting important legal precedent in several respects. The Court held that the stricter standard of Section 223, (the retirement provision of the Act) trumped the more liberal standard of Section 212(2)(G.) “The plain language of the standard of disability set forth in section 223 [retirement provision] demonstrates that the Legislature intended that it ‘supersede[ ] other applicable standards used to determine disability under the Act, including section 212(2)(G).” It also held that a claim for total permanent loss of industrial use requires proof of loss of earning capacity, and can be defeated by proof of available/suitable work.

The employee sought reconsideration, joined at that late date by the AFL-CIO and a law firm seeking to intervene as amici curiae. The Court revised its original opinion slightly, eliminating dicta concerning the employee’s interest in, or intention, to work. It affirmed its original decision in all other respects. Most unusually, the employee’s attorney sought reconsideration a second time. This request was summarily denied by the Court.

Saucier v. Nichols Portland, et al., Decision No. 2000 ME 132; decided September 18, 2007; revised on October 25, 2007; second motion for reconsideration denied November 26, 2007.