Eileen Dulac v. Opportunity Enterprises
May 23, 2022
CategoriesApportionment Average Weekly Wage Apportionment Average Weekly Wage
Summary from the Troubh Heisler Attorneys
Eileen Dulac v. Opportunity Enterprises (attached) - Ms. Dulac had several injuries working for the State of Maine and had ongoing restrictions when she left that job and started working at Opportunity Express (OE), where she had two more injuries. She had earned twice as much at the State as she did at OE, and she had returned to work at OE earning more than she previously earned there.
Dulac filed petitions against the State and OE, and Dr. Omsberg's §207 IME found causation with both employers, apportioning it mostly to the State. Judge Knopf granted Dulac's petitions, ordering OE to pay benefits based on the State's higher AWW, and ordering the State to fully reimburse OE for benefits before OE’s injuries, and partial reimburse OE thereafter.
OE appealed, arguing that its liability ended when Dulac’s OE wages exceeded her pre-injury OE wage, and that, despite the 100% reimbursement from the State, OE could not be held even “initially responsible” to pay benefits before its DOI. The Appellate Division found no error and upheld the decision.
Citing Warren v. Winters, they held that Judge Knopf correctly found the State’s higher AWW best reflected Dulac's “uninjured earning capacity.” Citing §354, “the insurer providing coverage at the time of the last injury shall initially be responsible to the employee for all benefits payable under this Act," they agreed “all” includes benefits based on the State’s higher AWW, and benefits the State owed before OE’s injury occurred.