Axelsen v. Interstate Brands

Insurance Company


Date Decided

October 22, 2015

Panel Members

Timothy Collier

Elizabeth Elwin

Glen Goodnough

David Hirtle

Evelyn Knopf

Tom Pelletier

Mike Stovall


Employment Rehab Statutory Construction Retroactivity


En Banc Rehabilitation Services §217(8) Statutory Construction Presumptions

File Size

256 KB


Summary from the Troubh Heisler Attorneys

Mr. Axelsen suffered a work injury on January 8, 2011, that ultimately rendered him unable to return to his job or any job involving the physical work he did before the injury. After paying full benefits, Interstate Brands filed a Certificate of Reduction of Benefits in April of 2013. Mr. Axelsen then filed a Petition for Review. He also filed a Petition for Award and a Petition for Payment of Medical and Related Services. In November of 2013 Mr. Axelson applied for Employment Rehabilitation Services pursuant to Section 217. His application was granted and the board implemented an approved vocational rehabilitation plan in April of 2014.

After Mr. Axelsen’s injury, but before he applied for rehabilitation services pursuant to Section 217, the legislature amended Section 217, adding 217(8). 217(8) created a presumption that work is unavailable to the employee participating in a rehabilitation plan for as long as the employee participates in the plan. Judge Jerome granted Mr. Axelsen’s petitions and awarded him 100% partial incapacity benefits from April 11, 2014, the date he was approved for the vocational rehabilitation plan. For the period prior to the plan’s implementation, she awarded varying partial incapacity benefits. Interstate Brands appealed and the Executive Director of the Board determined the issue warranted consideration by an en banc panel.

Interstate Brands appealed, arguing that Judge Jerome improperly applied 217(8) retroactively to a date of injury that preceded 217(8)’s effective date. The panel disagreed, finding no error with Judge Jerome’s decision. The panel held that the operative event for purposes of 217(8)’s application was not the date of injury. Rather, it was Mr. Axelsen’s participation in the rehabilitation plan. The operative event therefore came after 217(8)’s effective date. The statute was not applied retroactively.

Interstate Brands also appealed Judge Jerome’s conclusion that 217(8)’s presumption conclusively establishes that work is unavailable to the employee in a rehab plan, arguing instead that 217(8) only creates a rebuttable presumption of the unavailability of work. Citing Maine Rule of Evidence 301, the panel agreed with Interstate Brands. Conclusive presumptions are akin to rules of law and have special significance. The panel noted that three explicit conclusive presumptions are found in the Workers’ Compensation Act. Since the legislature did not designate 217(8)’s presumption as conclusive, the ordinary, rebuttable presumption was proper.

The panel remanded the issue of the presumption with explicit instructions that, “the order and presentation of proof when section 217(8) is invoked is as follows: after the employee establishes the basic fact that the employee is participating in a board-ordered rehabilitation plan, the burden shifts to the employer to prove that the nonexistence of the presumed fact (that work is unavailable to the employee) is more probable than its existence. When evaluating whether the employer has established that it is more probable than not that work is available to an employee who is participating in a board-ordered rehabilitation plan, the hearing officer should consider not only labor market evidence (including work search), but also the practical effect participation in the plan may have on the employee’s availability for work, including but not limited to the amount of time participation in the plan requires, whether the plan requires homework in addition to on-site training, and the employee’s restrictions.”

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