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Bailey v. City of Lewiston

Supreme Court of Maine

July 20, 2017

MICHAEL F. BAILEY
v.
CITY OF LEWISTON et al.

          Argued: April 11, 2017

          John H. King, Jr., Esq. (orally), Norman, Hanson & DeTroy, LLC, Portland, for appellant City of Lewiston and Cannon Cochran Management Services

          Benjamin DeTroy, Esq. (orally), Leary & DeTroy, Auburn, for appellee Michael J. Bailey

          James J. MacAdams, Esq., Nathan A. Jury, Esq., and Donald M. Murphy, Esq., MacAdam Law Offices, Portland, for amicus curiae the Maine Building Trades

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          JABAR, J.

         [¶1] The City of Lewiston and its insurer, Cannon Cochran Management Services (referred to collectively as the City), appeal from a decree of the Workers Compensation Board Appellate Division vacating the hearing officers (Goodnough, HO)[1] grant of the Citys petition to determine the extent of Michael F. Baileys permanent impairment. See 39-A M.R.S. § 322 (2016). We affirm the Appellate Divisions decision.

         I. BACKGROUND

         [¶2] The following facts, which are derived from a 2014 Workers Compensation Board decree granting the Citys petition to determine the extent of Baileys permanent impairment, are supported by the record. See 39-A M.R.S. §§ 318, 322(3) (2016). Bailey, who at the time of the 2014 decree was sixty-five-years old, began working as a City of Lewiston firefighter in 1975. On October 21, 2001, he suffered a respiratory work injury and was subsequently diagnosed with reactive airways deficiency syndrome (RADS). By way of a Workers Compensation Board decree, Bailey began to receive partial incapacity benefits stemming from that injury in 2004. In 2007, the City sought review of Baileys award of benefits and Bailey sought a determination of the extent of his permanent impairment. The hearing officer (Goodnough, HO) denied the Citys petition, but found that Bailey had reached maximum medical improvement (MMI) and that he had sustained an injury that resulted in a permanent impairment level of 32%. This determination was based on the results of an independent medical exam performed pursuant to39-AM.R.S. §312(2007).[2]

         [¶3] Because the 2007 decree established that Baileys permanent impairment level exceeded 15%, he was eligible to receive ongoing compensation without a temporal "cap." See 39-A M.R.S. § 213(1) (2007).[3] The City did not appeal from the 2007 decree.

         [¶4] In 2013, the City filed a petition seeking review of the level of Baileys incapacity[4] and a second petition seeking to determine the extent of his permanent impairment. In support of these petitions, the City introduced the results of an updated medical examination that indicated that Baileys level of permanent impairment had decreased to 0%.

         [¶5] The hearing officer rejected Baileys claims that the doctrine of res judicata precluded the Citys petition to determine the extent of his permanent impairment, concluded that the new medical report constituted a change of circumstances warranting a new permanent impairment finding, and reduced Baileys permanent impairment level to 0%. The decree terminated Baileys entitlement to further compensation because his 0% permanent impairment rating ended his eligibility to receive benefits without a temporal restriction and because he had already received benefits for longer than the limit established for an injury resulting in 0% permanent impairment. See 39-AM.R.S. §213(1)(A).

         [¶6] Bailey subsequently appealed to the Appellate Division. See 39-AM.R.S. § 321-B (2014).[5] In a unanimous decision, the Appellate Division vacated the hearing officers decree, concluding that the 2007 determination of permanent impairment as of the date of MMI was final, and therefore res judicata principles barred relitigation of that issue. The Appellate Division further concluded that there existed no significant change of circumstances to warrant the hearing officer revisiting the issue of Baileys MMI.

         [¶7] The City successfully petitioned for appellate review of the Appellate Divisions decision. Se ...


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