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Morrissette v. Kimberly-Clark Corp.12/4/2003
877-78 (relying, in part, on Romein, 503 U.S. at 190-91). See also Bernier, 2002 ME 2, 16-17, 787 A.2d at 150 (stating that section 224 applies to pending proceedings); Bowie v. Delta Airlines, Inc., 661 A.2d 1128, 1131 (Me. 1995) (applying the 39-A M.R.S.A. § 223 (2001) retiree presumption retroactively to injury predating presumption). Because the hearing officer in the present case correctly concluded, based upon competent evidence, that Morrissette's circumstances had changed since the previous determination of incapacity, it was not error to recalculate her level of incapacity benefits pursuant to section 224. See McIntyre, 2000 ME 6, 5-6, 743 A.2d at 746-47; Folsom, 606 A.2d at 1038.
Finally, Kimberly-Clark contends that even if there was no violation of the constitutional principles of separation of powers in the present case, the sweep of section 224 is overly broad and should be struck down because it might be applied in an unconstitutional manner in another case. We have previously rejected this contention with respect to section 224. In Bernier, we held that the statutory language of the enacting provision to section 224 contained sufficient evidence of a legislative intent to apply section 224 to pending proceedings to overcome the statutory presumption of 1 M.R.S.A. § 302 (1989). 2002 ME 2, 16-17, 787 A.2d at 150. Finding no unconstitutional application of section 224 in Bernier, we expressly declined the employer's invitation in that case to strike down section 224 because it might be applied in an unconstitutional manner in some future case.
Accordingly, we conclude that the hearing officer did not err in applying section 224 to recalculate Morrissette's benefits based on her change of circumstances in March 2001.
Kimberly-Clark also appeals from the hearing officer's decision to deny its petition pursuant to 39-A M.R.S.A. §§ 205(9)(B)(2) & 324(1) (2001) for reimbursement of $7049.03 it paid to Morrissette during the pendency of her prior petition for appellate review that was denied on March 15, 2001. Morrissette does not challenge Kimberly-Clark's assertion that some reimbursement is permissible pursuant to 39-A M.R.S.A. § 324(1), which grants to the Board "full jurisdiction" to determine the amount and schedule of repayment, and requires the Board to consider the financial situation of the employee and the employee's family, in order to avoid hardship and injustice. Accordingly, we vacate the hearing officer's denial of the petition for reimbursement without discussion, and remand for a determination of reimbursement to which Kimberly-Clark may be entitled.
The entry is: The decision of the hearing officer of the Workers' Compensation Board is affirmed in part and vacated in part, and remanded to the Workers' Compensation Board for further proceedings consistent with this opinion.
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