Day v. SD Warren Company

Insurance Company

Liberty Mutual Insurance

Date Decided

May 1, 2014

Panel Members

Garry Greene

Tom Pelletier

Mike Stovall


Subsequent Non-Work Injury


Carpal Tunnel Partial Incapacity Neck Arms Shoulders Total Incapacity Multiple Injuries Subsequent Injuries § 201(5)

File Size

376 KB


Summary from the Troubh Heisler Attorneys

The WCB Appellate Division has affirmed a hearing officer's decision denying an employee's claim for benefits based on two work-related neck injuries, and granting the employer's petition for review, reducing the employee's incapacity benefits because of a subsequent non-work-related condition.

In 1998, Day suffered a carpal tunnel injury and received partial incapacity benefits thereafter because he was restricted from working overtime. In 2007 Day was struck by a descending overhead door, injuring his neck, arms, and shoulders. He received total incapacity benefits for a couple of months before returning to his pre-injury job. In mid-December 2010 Day went to the emergency room with severe neck pain radiating down his arm. He had neck surgery and has been unable to remain at work.

Day filed petitions claiming that his disabling neck condition was caused by the 2007 injury and a previously-unreported incident in October 2010 when he bumped his head at work. Meanwhile, the insurer covering the 1998 carpal tunnel claim had been paying varying rates partial incapacity benefits and filed a petition for review. In her decree, Hearing Officer Jerome gave Day the protection of the Act for the 2007 and 2010 neck injuries but found that his disabling neck condition in December 2010 was not causally related to either injury. HO Jerome also granted the petition for review on the 1998 claim, reducing Day's incapacity benefits, because the disability beginning in December 2010 was due to a subsequent non-work-related injury.

On appeal, the Appellate Division rejected Day's argument that HO Jerome was compelled to adopt a doctor's written report stating that the neck-related disability was causally related to the 2007 and 2010 injuries. Instead, they found that HO Jerome was free to adopt that same doctor's deposition testimony, which repudiated his written report and changed his opinion, because the deposition testimony was based on a more accurate medical history. The Appellate Division also found competent evidence in the record to support HO Jerome's decision that the neck-related disability beginning in December 2012 was not work-related.

The Appellate Division also held that HO Jerome was not arbitrary, irrational, or incorrect in applying § 201(5), which required her to separate out the effects of the subsequent non-work-related injury in determining Day's compensation level for the 1998 carpal tunnel injury. She found that Day had demonstrated significant wage-earning ability after the 1998 injury, as best measured by the average weekly wage applicable to the October 2010 neck injury. When Day subsequently became disabled in December 2010, his earnings loss as a result of the non-work-related injury was measured by the difference between his 1998 wage and his 2010 wage, and his ongoing partial incapacity benefit was based on that wage difference. Day's evidence of an unsuccessful work search was not relevant to the determination required by § 201(5): the income loss caused by the non-work-related injury.

This decision is a reminder that, in cases involving subsequent non-work injuries, Maine law requires isolated determinations of the wage loss effects of the work injury and the non-work injury, which is not an apportionment process.

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