Pelletier v. Gerald Pelletier, Inc.

Insurance Company

Acadia Insurance

Date Decided

October 30, 2017

Panel Members

Timothy Collier

Elizabeth Elwin

Mike Stovall


Res Judicata Work Search Res Judicata Work Search


Shoulder Work Search Work Capacity McIntyre v. Great Northern Paper

File Size

231 KB


Summary from the Troubh Heisler Attorneys

Danny injured his shoulder in 2012, and Gerald voluntarily paid him incapacity benefits. In May 2013, Gerald filed a Petition for Review, and at hearing Danny claimed total disability but also offered his testimony (with no work search record) that he had "called many employers unsuccessfully seeking part time-light duty work." In August 2014 the WCB granted Gerald’s review, found Danny had a partial work capacity, and reduced his WC benefits to partial based on a imputed weekly earning capacity of $360.

Nine months later, in May 2015, Danny filed his own Petition for Review seeking an increase in his partial incapacity benefits to 100%. At hearing, Danny now offered a work search record showing "a large number of contacts with prospective employers." Judge Hirtle denied Danny's Petition for Review, concluding that his work search evidence was insufficient to overcome the res judicata effect of the prior decision. He cited the Maine Supreme Court's 2000 decision in McIntyre v. GNP for the proposition that work search evidence alone cannot be sufficient to demonstrate a change of economic circumstances. Danny appealed.

The Appellate Division panel held that Judge Hirtle had "misconceived the applicable law" by ruling that work search evidence could never, by itself, prove a change of circumstances. In McIntyre, the court held that McIntyre's work search record, together with vocational training (including a two-year degree in business management), his part-time work as a grocery inventory auditor and a direct care worker for handicapped adults, his seasonal employment as a highway flagger, and his full-time employment with Common Sense Housing, were together sufficient to overcome the res judicata effect of a prior decree limiting his partial to 25%.

The Pelletier panel vacated Judge Hirtle's decision and remanded the case back to him to assess whether Danny's work search evidence alone "constitutes a significant change in circumstances."

Page |