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Morrissette v. Kimberly-Clark Corp.12/4/2003
Reporter of Decisions
Argued: January 16, 2003
Kimberly-Clark Corporation appeals from a decision of a hearing officer of the Workers' Compensation Board (Elwin, HO) granting the petition of its employee, Anita Morrissette, for restoration of benefits. Kimberly-Clark contends that the retroactive application of -A M.R.S.A. § 224 (Supp. 2002) to determine Morrissette's level of benefits was a violation of the constitutional doctrine of separation of powers because it altered a previous calculation of benefits made consistent with our decision in Bernard v. Mead Publ'g Paper Div., 2001 ME 15, 765 A.2d 576. We disagree with Kimberly-Clark and affirm that part of the decision restoring benefits to Morrissette. Because Morrissette does not challenge Kimberly-Clark's appeal from the denial of its petition pursuant to 39-A M.R.S.A. §§ 205(9)(B)(2) & 324(1) (2001) for reimbursement of payments made to Morrissette during the pendency of a prior unsuccessful petition for appellate review, we vacate the denial of the petition for reimbursement and remand for a hearing officer for the determination of the amount to be reimbursed.
I. FACTS AND PROCEDURAL HISTORY
Morrissette suffered a bilateral work-related carpal tunnel injury in 1983 and a subsequent work-related back injury in 1992, while employed by Scott Paper. Morrissette was laid off from her employment in 1995. By a hearing officer decree in 1996, Morrissette was awarded ongoing sixty-three percent partial incapacity benefits.
Morrissette obtained short-term employment with Saturn Business Services in 1997, and then left that employment to obtain work at the Maine Farm Bureau. In 1998 Kimberly-Clark filed a petition for review, seeking to reduce Morrissette's benefits. The hearing officer granted the petition, finding that there had been a change of economic circumstances since the 1996 decree, and that Morrissette's continuing restrictions were solely related to her 1983 bilateral arm injury. The hearing officer reduced Morrissette's compensation to fifty-four percent partial incapacity, based on a comparison of her current earnings and her inflated average weekly wage at the time of her injury.
Kimberly-Clark then filed a motion for findings of fact contending, in part, and persuading the hearing officer, that pursuant to Allen v. Bath Iron Works Corp., the hearing officer should have first compared Morrissette's uninflated pre-injury and post-injury earnings, and then applied the inflation adjustment to the difference. 1999 ME 57, 7, 728 A.2d 121, 123. Accordingly, the hearing officer granted Kimberly-Clark's motion and reduced Morrissette's benefits from $292.66 to $47.67, based on a comparison of uninflated wages.
Morrissette challenged the decision in a petition for appellate review. In January 2001, we decided Bernard, 2001 ME 15, 765 A.2d 576, in which we concluded that, in applying the inflation adjustment, the hearing officer must first compare uninflated pre-injury and post-injury wages and then apply the inflation adjustment to that result. Id. 17, 765 A.2d at 581. On March 15, 2001, we denied Morrissette's pending petition for appellate review without comment.
Also in March 2001, Morrissette lost her employment with the Farm Bureau and filed a petition for restoration with the Board alleging changed economic circumstances. Shortly thereafter, Kimberly-Clark filed a petition with the Board seeking repayment of $7049.03 in benefits it had paid during the pendency of Morrissette's petition for appellate review that was denied on March 15, 2001.
Following our decision in Bernard, the Legislature enacted 39-A M.R.S.A. §
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