Bailey v. City of Lewiston
April 15, 2016
CategoriesDurational Limit Res Judicata Durational Limit Res Judicata
Permanent Impairment Permanent Impairment Rating IME§312 Change in PI Rating Maximum Medical Improvement Williams v. ES Boulos
Summary from the Troubh Heisler Attorneys
The panel reversed Judge Goodnough’s decision, which had granted Lewiston’s Petition for Review and Petition to Determine Permanent Impairment (“PI”), on grounds of res judicata (“the matter has been decided”). The panel held that, once an employee's PI is established by decree, his PI can legally increase over time, but it cannot decrease. The panel also held that once the Board establishes a date of MMI, it represents a one-time determination that cannot be readjudicated.
Firefighter Bailey suffered a respiratory work injury in 2001, which was found to cause 32% PI in a 2007 WCB decree. In 2013 Lewiston filed a Petition for Review and a new Petition to Determine PI. Dr. Fuhrman had performed a §312 IME in the earlier case and had determined Bailey’s PI then to be 32%; Dr. Fuhrman also performed the §312 IME in the later case and found that Bailey’s PI had reduced to 0%. Judge Goodnough granted both petitions, finding that Bailey's PI was now 0% and that Lewiston could discontinue his partial incapacity benefits by operation of the 520-week limitation in §213.
The panel acknowledged that, although PI may already be adjudicated, res judicata does not bar a party from filing a new PI petition if it has evidence of “a change in circumstances sufficient to justify revisiting the issue.” The panel noted that maximum medical improvement (MMI) must occur before PI can be determined, and that Judge Goodnough improperly distinguished the Maine Supreme Court’s Williams v. E.S. Boulos decision, which had held that a finding of MMI was a one-time determination that cannot be changed. The panel ruled that Williams is controlling law, that the 2007 PI determination also established that MMI had then occurred, and that a finding of subsequent medical improvement was legally “not possible…without finding, essentially, that the first determination [of MMI] was, in fact, incorrect.”