Damon v. SD Warren & Scarborough Schools
Maine Employers' Mutual Insurance Company
April 9, 2015
CategoriesAverage Weekly Wage
Carpal Tunnel Multiple Employers Average Weekly Wage Outside Factors Voluntary Reductions
Summary from the Troubh Heisler Attorneys
Damon had a 1991 carpal tunnel injury while working at S.D. Warren. He took an early retirement package and immediately went to work as a custodian for the Town of Scarborough. He began working full time, but reduced his hours beginning sometime in 2008. He suffered another carpal tunnel injury in 2010 and had surgery. After he returned to work following the surgery, he chose to work even fewer hours for reasons unrelated to either injury. Hearing Officer Collier imputed an ongoing earning capacity that was higher than Damon’s 2010 average weekly wage and awarded no ongoing benefits due to the 2010 injury. Damon appealed, citing Warren v. H.T. Winters and arguing that S.D. Warren’s liability for incapacity benefits should be analyzed based on his higher 1991 earnings, because his 2010 earnings were reduced in part because of the 1991 injury.
HO Collier rejected that argument based on a finding that Damon’s earnings before his 2010 injury were reduced due to his voluntary reduction in work hours for lifestyle reasons; therefore, his 2010 wages best measured his earning capacity going forward. Although the Appellate Division affirmed, the panel appeared to base its decision on the fact that the employee took a further voluntary reduction in his work hours when he returned to work after his 2010 surgery. Perhaps this was a mistake by the panel, as they don’t explain why an employee’s lifestyle decisions after the last work injury would be relevant to the decision of which wage should be used to determine current entitlement to incapacity benefits.