Belanger v. Miles Memorial Hospital
May 25, 2017
CategoriesMedical Expenses Res Judicata Medical Expenses Res Judicata
Nurse Hand Arm Partial Incapacity Earning Capacity Work Search Vocational Rehabilitation
Summary from the Troubh Heisler Attorneys
Ms. Belanger was a nurse who injured her hands and arms at Miles causing her partial incapacity. A 2003 decree found she had job opportunities in the health profession and was capable of earning $800 per week. Some years later, Ms. Belanger filed a Petition for Review, resulting in a 2012 decree found that she had proven no change in her medical or economic circumstances, nor had she proven that her anxiety and depression increased her incapacity for work.
Ms. Belanger then filed another Petition for Review and a Petition for Payment of Medical Bills. Judge Knopf issued another decision, this time finding no change in Ms. Belanger's medical circumstances, but finding a change in her economic circumstances since the 2012 decree which reduced her earning capacity to $400 per week. Judge Knopf ordered an increase in her partial incapacity benefits accordingly, and she also ordered payment of the medical bills including the brand-name prescriptions. Miles appealed both parts of the decision, and the Appellate Division panel sustained Judge Knopf’s finding of increased incapacity but vacated her decision regarding payment of the brand-name drugs.
The Appellate Division determined that Judge Knopf had properly found a change in economic circumstances sufficient to overcome the res judicata effect of the 2012 decree: Ms. Belanger had performed an insufficient work search, she had engaged in vocational rehabilitation, she had undergone surgery followed by a period of total incapacity, she was total incapacitated from a psychological condition, she started and lost a job, she had not worked in nursing for over 10 years, and she was now 65 years old.
The panel also considered 39-A MRSA §206 (11) that requires payment for generic drugs when they are available. The panel agreed with Miles that Ms. Belanger had the burden of proof on this issue and that she failed to meet her burden. Panel member Stovall dissented on that point, suggesting that the employer should have the burden of proof of the availability of generic drugs.