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BUREAU v. STAFFING NETWORK6/21/1996
f proof in cases when a partially incapacitated employee is seeking total incapacity benefits. The purpose of the rule is to aid in the calculation of a partially incapacitated employee's `ability to earn.'" Tripp, 676 A.2d at 929.
We recently summarized the operation of the "work-search" rule in construing an earlier version of the Act.
On an employer's petition for review, the employer bears the
burden of proof to establish the employee's earning capacity;
however, when the employer shows that the employee has regained
partial work-capacity, the employee bears a burden of
production to show that work is unavailable to him or her as a
result of the injury. Ibbitson v. Sheridan Corp.,
422 A.2d 1005, 1009 (Me. 1980). If the employee meets the burden of
production, the employer's "never shifting" burden of proof may
require it to show that it is more probable than not that there
is available work within the employee's physical ability. Id.
at 1009-10; Poitras v. R.E. Glidden Body Shop, 430 A.2d 1113,
1118 (Me. 1981).
Tripp, 676 A.2d at 929 (quoting Dumond v. Aroostook Van Lines, 670 A.2d 939, 941-42 (Me. 1996)). As we stated in Tripp, " he only difference in cases involving an employee's petition for award or review, is that the employee seeking one-hundred percent benefits must bear the ultimate burden of proof to show that work is unavailable as a result of the injury." Id. at 929.
The hearing officers in the present cases concluded that section 213 provides a "general statement" concerning the duration and the amount of benefits, but that section 214 determines the entitlement to benefits in individual cases. By sidestepping the language of section 213, the decisions eliminate the work search requirement completely and preclude consideration of any residual wage-earning capacity of a partially incapacitated employee. By focusing exclusively on section 214, the decisions avoid any reference to the employee's ability to earn and preclude the employers from reducing benefits unless the employees actually return to work or refuse an offer of reasonable employment. We conclude on the basis of the continued use of the phrase "able to earn", the structure of the Act, and the legislative history, that the Legislature did not eliminate the necessity for applying the "work search" rule.
Ordinarily, we defer to an administrative agency's interpretation of a statute, particularly if, as in the case of the Workers' Compensation Board, the agency is charged with the responsibility of administering the statute. See Curtis v. National Sea Prods., 657 A.2d 320, 322 (Me. 1994); LaRochelle v. Crest Shoe Co., 655 A.2d 1245, 1248 (Me. 1995); Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360 (Me. 1994). Under the 1992 Act, such deference to the Board is particularly appropriate in light of the clearly stated intention to assign Maine's unique and persistent problems of compensation utilization and duration to "a new labor-management board, which will have virtually total control over the operation of the system." Unfortunately, on the issue before us, hearing officers are not of one view, and the labor-management Board has divided evenly. Bolshaw v. Redco, Inc., WCB # 94-00-15-03, slip op. 2 (Me.W.C.B. July 11, 1995). Thus, we are left with the language of the statute and history.
We reject the conclusion that section 214 is the exclusive source for an award of benefits. If that were true, there would be no benefits in the present cases because, as even the hearing officers concede, section 214 is silent concerning any award for employees who do not return to work following their injury. Although the decisions purport to apply se
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