Suzan Samuel v. Mercy Hospital

Insurance Company

Cross Insurance

Date Decided

February 24, 2021

Panel Members

David Hirtle

Tom Pelletier

Mike Stovall


Partial Incapacity Work Search Partial Incapacity Work Search


File Size

154 KB


Summary from the Troubh Heisler Attorneys

Suzan Samuel v. Mercy Hospital (attached) – In 2012 Samuel injured her shoulder working as a housekeeper for Mercy, insured by ESIS. She continued working, and her symptoms worsened in 2014, so her doctors restricted her from using her right arm at all. A few days later, she slipped and reinjured her right shoulder, when Mercy was insured by Cross Insurance. An MRI scan showed a rotator cuff tear requiring surgery, after which she returned to work with restrictions against heavy, repetitive or overhead lifting.

Samuel filed petitions against both insurers. A §312 IME found each injury responsible for 50% of Ms. Samuel’s shoulder condition. Seven weeks before the hearing, Mercy terminated Samuel’s employment, so she applied for unemployment. At hearing, she testified that she was looking for work. Judge Collier granted her petitions, apportioned benefits 50/50 between the carriers, and ordered them to pay her medical bills and 100% partial benefits.

Mercy appealed in 2018, arguing that “the later injury did not result in any increase in her work restrictions,” and that she did not present a good faith work search justifying total benefits. In 2021, the Appellate Division panel issued its decision, dismissing Mercy’s restrictions argument but agreeing with Mercy on the absence of work search evidence, based on the Maine Supreme Court’s 1981 decision in William Swan v. Andrew Crowe.

In that case, Swan’s doctor released him to restricted work three weeks before the evidence closed, and the Commission ordered payment of only 50% partial based on the lack of work search. The Court reversed that decision and remanded the case back to the Commission to let Swan submit work search evidence. The Samuel panel followed Swan and remanded the case back to Judge Collier so Samuel could present her work search evidence after 2016.

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