Thurlow v. Rite Aid of Maine

Insurance Company


Date Decided

August 17, 2016

Panel Members

Glen Goodnough

Evelyn Knopf

Mike Stovall


Board IME Post-Injury Earnings Board IME Post-Injury Earnings


Fecteau Arm Work Accomodation Lost Earning Capacity

File Size

171 KB


Summary from the Troubh Heisler Attorneys

Even on the employee's petition for award, if the employee has earnings, Fecteau applies, shifting to the employer the burden of production of evidence of more available work and a higher earning capacity.

Thurlow injured her arms at work and, after missing a few months of work, returned to work, but only 18 hours per week, rather than her normal pre-injury 30-hour schedule. In 2006, after her doctor cleared her to work 30 hours per week with restrictions, Rite Aid suspended its voluntary payment of benefits, and in 2012 Thurlow filed a petition for award.

After hearing, ALJ Jerome denied any ongoing incapacity benefits based on Thurlow’s failure to prove any ongoing lost earning capacity, and Thurlow appealed. The Appellate Division reversed part of the decision, holding that, even on an employee's petition seeking incapacity benefits, the employee's actual post-injury wages constitute prima facie evidence of her earning capacity, requiring the employer to produce evidence that higher-paying work is reasonably available to the employee.

In any case in which employees have post-injury earnings, employers must produce labor market or other evidence regarding work availability and earning potential, even where employees theoretically have the burden of proof.

Page |