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Churchill v. Central Aroostook Ass'n, corrected 12-19-99
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 192
Docket:	WCB-98-465
Argued:	September 8, 1999
Decided:	December 22, 1999

Panel:WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

CATHERINE CHURCHILL

 v. 

CENTRAL AROOSTOOK ASSOCIATION FOR RETARDED CITIZENS, INC., 
et al.

CLIFFORD, J.

	[¶1]  The employee, Catherine Churchill, appeals from a decision of
the Workers' Compensation Board granting her petition to determine the
extent of permanent impairment related to a 1995 aggravation of a 1985
Massachusetts work-injury.  Churchill contends that the Board erred when it
concluded that separate injuries suffered by the employee on different dates,
when both those injuries contribute to the permanent impairment of the
employee, cannot be combined to determine whether the impairment
exceeds the 11.8% threshold, above which employees can receive more
than 260 weeks of partial incapacity benefits pursuant to
39-A M.R.S.A. § 213 (Supp. 1998).  Relying on the language of section 213
and its provision of a permanent impairment threshold to preserve the
longer-term award of benefits for those employees with the most serious
whole body impairments, and on the provisions of section 201(4) regarding
the relationship of preexisting conditions to work injuries, we agree with
Churchill and conclude that the determination of the extension of
permanent impairment may include the consideration of the contribution of
more than one injury.  Accordingly, we vacate the decision of the
Board.
	[¶2]  The facts are not in dispute.  Churchill suffered a work-related
back injury while employed in Massachusetts in 1985.   She settled her
workers' compensation claim with her Massachusetts employer in 1987. 
Shortly thereafter, she moved to Maine and began working for Central
Aroostook Association for Retarded Citizens, Inc. (CAARC), where, in August
of 1995, she suffered a second work-related injury.  In a 1997 decision, the
Board granted Churchill's petition for award and awarded 60% partial
incapacity benefits.  In the same decree, the Board concluded that, because
the 1995 injury was a "significant" aggravation of the 1985 injury, CAARC
would be fully liable for the combined effects of both injuries.  See
39-A M.R.S.A. § 201(4) (Supp. 1998).{1}	
	[¶3]  In 1998 Churchill filed a petition to determine the extent of
permanent impairment.  Pursuant to section 213, most employees suffering
permanent impairment are limited to 260 weeks of partial incapacity
benefits.{2}  The Legislature has determined, however, that a quarter of
permanent impairment cases are serious enough to warrant the payment of
partial incapacity benefits in excess of the 260 week limit.  In subsection
213(2), the Legislature estimated that the most serious permanent
impairment cases would be those where the employee's whole body
impairment is in excess of 15%, and accordingly, established that
"[c]ompensation must be paid for the duration of the disability if the
employee's permanent impairment . . . resulting from the personal injury is
in excess of 15% to the body."  39-A M.R.S.A. § 213(1).
	[¶4]  Section 213(2) goes on to provide that the Board adjust the 15%
threshold "so that 25% of all cases with permanent impairment will be
expected to exceed the threshold and 75% of all cases with permanent
impairment will be expected to be less than the threshold," and thus will be
limited to a maximum of 260 weeks of benefits.  In 1998 the Board
exercised its statutory authority pursuant to subsection 213(2) and adjusted
the impairment threshold from 15% to 11.8%.  See WCB Rule ch. 2, §1
(1998). 
	[¶5]  The Board granted Churchill's petition in June of 1998,
concluding that she has a 15% whole body permanent impairment related to
both injuries, and that 6% of that impairment relates to the 1995 injury,
while the remaining 9% is attributable to the 1985 injury.  The Board,
however, rejected Churchill's contention that the impairment from both
injuries should be combined for purposes of determining whether her
impairment exceeds the 11.8% threshold.  Accordingly, Churchill is limited
to 260 weeks of permanent impairment benefits.  The Board denied
Churchill's motion for findings of fact, and, pursuant to 39-A M.R.S.A. § 322
(Supp. 1998), we granted her petition for appellate review.
	[¶6]  The effect of preexisting conditions on the determination of
permanent impairment has been addressed in different ways under different
statutory schemes.  Prior to 1965, the term "permanent impairment"
referred to so-called "schedule benefits," i.e., a schedule of benefits
corresponding to the loss of specifically enumerated body parts.  See P.L.
1915, ch. 295, § 16; Estabrook v. Stewart-Read Co., 129 Me. 178, 186, 151
A. 141, 145 (1930).  Permanent impairment and incapacity benefits were
both intended to compensate employees for lost earning capacity, and
employees were prohibited from receiving compensation for both
permanent impairment and incapacity.  See Boehm v. American Falcon
Corp., 1999 ME 16, ¶ 6, 726 A.2d 692, 693; Campbell v. Bates Fabrics, Inc.,
422 A.2d 1014, 1015, n. 5 (Me. 1980).
	[¶7]  In 1965 the Legislature amended former section 56 of
39 M.R.S.A. to provide that permanent impairment benefits were no longer
regarded as compensation for lost earning capacity, but rather for loss of
bodily function.  Benefits were provided pursuant to a schedule for
impairment to individual body parts.  Permanent impairment benefits could
be awarded "in addition to" incapacity benefits.  P.L. 1965, ch. 408, § 5. 
See, e.g., 39 M.R.S.A. § 56 (Pamph. 1986), repealed and replaced by P.L.
1987, ch. 559, Pt. B, § 31.
	[¶8]  In 1987 the individual body parts approach to permanent
impairment benefits was replaced with the so-called "whole body"
approach, in which permanent impairment was calculated as a percentage of
total body impairment, and the number of weeks of benefits were
determined according to a "sliding scale" based on the severity of the
employee's whole body impairment.  See P.L. 1987, ch. 559, Pt. B, § 33,
codified as 39 M.R.S.A. 56-B (1989), repealed by P.L. 1991, ch. 885, § A-7. 
Former section 56-B provided, in pertinent part:

1.  Weekly benefit.  In the case of permanent impairment, the
employer shall pay the injured employee a weekly benefit equal
to 2/3 of the state average weekly wage . . . for the number of
weeks shown in the following schedule:

A.  One week for each percent of permanent impairment
to the body as a whole from 0 to 14%;

B.  Three weeks for each percent of permanent
impairment to the body as a whole from 15% to 50%;

C.  Four and 1/2 weeks for each percent of permanent
impairment to the body as a whole from 51% to 85%; and

D.  Eight weeks for each percent of permanent
impairment to the body as a whole greater than 85%.

. . . .

Id.   			
	[¶9]  In Dumond v. Aroostook Van Lines, 670 A.2d 939, 940-41
(Me. 1996), we addressed the issue of preexisting conditions and permanent
impairment in the context of the "whole body" approach.  The employee
suffered 5% whole body permanent impairment from his most recent
work-injury and a preexisting 23% whole body impairment from previous
work-injuries.  Id.  The issue in Dumond was whether the 5% permanent
impairment from the most recent work-injury had to be considered
separately, as falling within the 0-14% range of permanent impairment to
the whole body established in subsection 56-B(1)(A), or added to the 23%,
so that the 5% would fall within the 15%-50% range of permanent
impairment to the whole body set out in subsection 56-B(1)(B).  Dumond,
670 A.2d at 942-43.  Noting the substantial change in the statute that went
from providing a schedule of benefits for impairment to individual body parts
(former sections 56 and 56-A) to one where employees were compensated
for impairment to the body as a whole, and relying on the purpose of the
statute to preserve the highest recoveries to employees with the highest
whole body impairments, we concluded that the impairment from the
employee's most recent work-injury could be added to his whole body
impairment resulting from his previous work-related injuries, so that the
employee's permanent impairment benefits would fall within the 15%-50%
range of permanent impairment to the body.  Accordingly, pursuant to the
sliding scale provisions of section 56-B, the employee was entitled to receive
benefits for the higher number of weeks.  Id. at 943-44.
	[¶10]  In Bourgoin v. J.P. Levesque & Sons, 1999 ME 21,
726 A.2d 201, we concluded that the employee, Bourgoin, was not entitled
to permanent impairment benefits for his preexisting diabetic nonwork-
related condition, and that the 30% impairment resulting from that
nonwork condition could not be added to his 23% work-related impairment
to be entitled to benefits pursuant to 39 M.R.S.A. § 56-B(1)(C).  Bourgoin,
1999 ME 21, ¶ 7, 726 A.2d at 202-03.  Bourgoin, however, did not argue
that his work-related injury aggravated his preexisting condition of diabetes. 
Accordingly, 39-A M.R.S.A. § 201(4), governing the aggravation of
preexisting conditions was not applicable.  Id., 1999 ME 21, ¶¶ 4, 8, n.3.,
726 A.2d at 202, 203, n.3.
	[¶11]  The Maine Workers' Compensation Act of 1992, title 39-A,
substantially altered provisions governing permanent impairment benefits. 
See P.L. 1991, ch. 885, § A-7 (effective January 1, 1993); Clark v.
International Paper Co., 638 A.2d 65, 66-67 (Me. 1994).  The concept of
permanent impairment, however, remains in section 213 as a rough
measure of an employee's overall level of work-incapacity.  The purpose of
the 15% threshold (since changed to 11.8%) set out in section 213 is to
preserve the longer-term awards of benefits for those employees with the
highest levels of work-incapacity.  See Leg. Rec. H-65-66 (3rd Spec. Sess.
1992); Report of Blue Ribbon Commission to Examine Alternatives to the
Workers' Compensation System and to Make Recommendations Concerning
Replacement of the Present System, Findings of the Majority of the Blue
Ribbon Commission, 2 (August 31, 1992). 
	[¶12]  The permanent impairment threshold in section 213,
therefore, is somewhat analogous to the "sliding scale" of former section 56-
B.  As we stated in Dumond, 670 A.2d at 942-43, the "whole body" approach
is designed to permit the consideration of the effects of multiple
impairments to the body "as a whole."  Section 213 embraces the whole
body approach and reflects a legislative intent to preserve longer-term
benefits for those employees with the most severe disabilities.  Section 213
permits the consideration of multiple work-related impairments in the
determination of the 11.8% threshold.
	[¶13]  Although the employee may combine more than one injury in
determining permanent impairment pursuant to section 213, permanent
impairment from a preexisting condition cannot be considered unless the
preexisting condition is aggravated by, accelerated by, or combines with a
work-related injury, and the "resulting disability . . . [is] contributed to by the
employment in a significant manner" pursuant to 39-A M.R.S.A. § 201(4).  
	[¶14]  The Board has already determined in its 1997 decree that
Churchill's work injury in 1995 was a "significant aggravation" of her earlier
1985 Massachusetts injury.  That conclusion has not been challenged.  
Accordingly, impairment from both injuries may be combined pursuant to
section 213, and when combined, total 15%.  Because Churchill's total
impairment attributable to both injuries exceeds the Board-established
11.8% threshold, she is not limited to 260 weeks of partial incapacity
benefits pursuant to section 213.
	The entry is:
The decision of the Workers' Compensation
Board is vacated.  Remanded to the Workers'
Compensation Board for further proceedings
consistent with this opinion.

Attorney for employee:

Norman G. Trask, Esq., (orally)
Currier & Trask, P.A.
505 Main Street
Presque Isle, ME 04769-2393

Attorneys for employer:

Paul H. Sighinolfi, Esq., (orally)
Jane E. Skelton, Esq.
Rudman & Winchell, LLC
P O Box 1401
Bangor, ME 04402-1401