MICHAEL F. BAILEY
CITY OF LEWISTON et al.
Argued: April 11, 2017
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
J. MacAdams, Esq., Nathan A. Jury, Esq., and Donald M.
Murphy, Esq., MacAdam Law Offices, Portland, for amicus
curiae the Maine Building Trades
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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) 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.
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
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). The City did
not appeal from the 2007 decree.
In 2013, the City filed a petition seeking review of the
level of Baileys incapacity 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%.
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.
Bailey subsequently appealed to the Appellate Division.
See 39-AM.R.S. § 321-B (2014). 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.
The City successfully petitioned for appellate review of the
Appellate Divisions decision. Se ...