Boehm v. American Falcon Corp.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 16
Docket: 	WCB-98-75
Argued:	January 7, 1999
Decided:	January 26, 1999

Panel:		CLIFFORD, RUDMAN, DANA, SAUFLEY, and CALKINS, JJ.

VICTORIA BOEHM

 v. 

AMERICAN FALCON CORPORATION

AND

REDLAND INSURANCE CO.

RUDMAN, J.

	[¶1]  American Falcon Corp. appeals from a decision of the Workers'
Compensation Board granting the employee's petition for award of specific
loss benefits pursuant to 39-A M.R.S.A. § 212(3) (Supp. 1998).  American
contends that, because specific loss benefits, like incapacity benefits, are
compensation for lost earnings, the employer should be entitled to offset the
award of specific loss benefit by the amount of incapacity benefits already
paid to the employee.  We agree and vacate the decision of the Board.
	[¶2]  The facts are not in dispute.  Victoria Boehm suffered a work-
injury on December 28, 1995, resulting in the loss of the fourth finger of
her right hand.  American voluntarily paid total incapacity benefits between
December 1995 and July 1996.  Boehm returned to work for a different
employer in August 1996 and was paid partial benefits at varying rates until
her compensation was finally discontinued in April 1997.  
	[¶3]  Boehm filed a petition for specific loss benefits with the Board in
1997.  The Board granted the petition and awarded sixteen weeks of
specific loss benefits pursuant to Paragraph 212(3)(E).  We granted
American's petition for appellate review pursuant to 39-A M.R.S.A. § 322
(Supp. 1998).
	[¶4]  Section 212 provides, in pertinent part:

§ 212. Compensation for total incapacity 

	1. Total incapacity.  While the incapacity for work resulting
from the injury is total, the employer shall pay the injured
employee a weekly compensation equal to 80% of the
employee's after-tax average weekly wage, but not more than the
maximum benefit under section 211.  Compensation must be
paid for the duration of the incapacity.

	. . . .

	3. Specific loss benefits.  In cases included in the following
schedule, the incapacity is considered to continue for the period
specified, and the compensation due is 80% of the after-tax
average weekly wage subject to the maximum benefit set in
section 211.  Compensation under this subsection is available
only for the actual loss of the following:

	. . . .

	E.  Fourth finger, 16 weeks.
	. . . .

39-A M.R.S.A. § 212.
	[¶5]  We recently noted: "'Schedule' or 'specific loss' benefits are not
new.  Maine has expressly provided some form of schedule benefits since
the original enactment of the Workers' Compensation Act in 1915."  Tracy v.
Hershey Creamery Co., 1998 ME 247, ¶ 5, 720 A.2d 579, 580 (citing P.L.
1915, ch. 295, § 14).  Prior to 1965, because both permanent impairment
and incapacity benefits were intended to compensate employees for lost
earning capacity, employees were prohibited from receiving concurrent
permanent impairment and incapacity compensation.  See id.; Campbell v.
Bates Fabrics, Inc., 422 A.2d 1014, 1015, n. 5 (Me. 1980).  
	[¶6]  In 1965, former section 56 was amended to provide that
permanent impairment benefits could be awarded "in addition to" benefits
for incapacity.  P.L. 1965, ch. 408, § 5.  See e.g., 39 M.R.S.A. § 56 (Pamph.
1986), repealed and replaced by P.L. 1987, ch. 559,  Pt. B, § 31 (emphasis
added) ("Compensation under this section is in addition to any
compensation under section 54-B [total incapacity] or 55-B [partial
incapacity] received by the employee").  After 1965 permanent impairment
benefits were regarded as something different from ordinary wage loss
benefits.  As we stated in Delorge v. NKL Tanning, Inc., 578 A.2d 1173, 1174
(Me. 1990), "[s]ince 1965 the award of permanent impairment has no
relation to work incapacity or wage replacement.  Rather it is based on the
loss of function of part of the body due to work-related injury" (emphasis
added).
	[¶7]  In order to reduce workers' compensation costs, generally,
former section 56-B was amended in 1991 to expressly permit an offset of
incapacity benefits against benefits for permanent impairment.  P.L. 1991,
ch. 615, § D-8, codified at 39 M.R.S.A. § 56-B (Supp. 1992) (effective for
injuries occurring after October 17, 1991 and before January 1, 1993).  The
amended permanent impairment statute provided: "Compensation under
this section is reduced by any compensation under section 54-B [total
incapacity] or 55-B [partial incapacity] received by the employee."  Id.  
	[¶8]  Boehm contends that the failure to include this latter sentence in
subsection 3 indicates a legislative intent not to permit an offset.  We
disagree.  The statutory language that authorized in 1965 concurrent
payment of wage loss benefits and permanent impairment benefits was the
phrase "in addition to."  The more specific language added to the statute in
1991, providing that permanent impairment benefits shall be "reduced by"
incapacity benefits. was intended to undo the phrase "in addition to." 
Because the new statute contains neither the phrase "in addition to"
prohibiting an offset, or the "reduced by" language, we interpret the specific
loss provision in the same way as we interpreted the pre-1965 law, i.e., to
allow an offset.
	[¶9]  More importantly, the new Act, title 39-A, has abolished
permanent impairment benefits.  See Clark v. International Paper Co., 638
A.2d 65, 67 (Me. 1994).  The clear purpose of schedule benefits pursuant to
the new Act is to create a presumptive incapacity benefit for the loss of, or
injury to, specific body parts.  Employers since 1991 have been permitted to
reduce specific loss benefits by the amount of incapacity benefits paid to the
employee, even when specific loss benefits were, at that time, considered
compensation for loss of bodily function.  The former statute never
permitted a duplicative recovery of incapacity benefits and we see nothing in
the express language or purpose of title 39-A to allow a duplicative recovery
of specific loss and incapacity benefits.
	[¶10]  The only provision in the Act suggesting a distinction between
"specific loss" benefits and other incapacity benefits is 39-A M.R.S.A. §
221(1) (Supp. 1998).  Section 221 addresses the "coordination of benefits,"
i.e., the ability of an employer to offset workers' compensation payments by
payments made to other nonworkers' compensation benefit plans, e.g. social
security, pension, wage continuation plans, etc.  Id.  Pursuant to section 221
specific loss benefits are not subject to coordination.  Id.  Section 221
provides, in pertinent part: 

This section does not apply to payments made to an employee as
a result of liability pursuant to section 212, subsection 2 or 3 for
the specific loss period set forth by law.  It is the intent of the
Legislature that, because benefits under section 212, subsections
2 and 3 are benefits that recognize human factors substantially in
addition to the wage loss concept, coordination of benefits
should not apply to such benefits.

39-A M.R.S.A. § 221(1).  Both the Board and Boehm rely heavily on the
"human factors" language of subsection 221(1) as support for the conclusion
that specific loss benefits may not be offset against ordinary incapacity
benefits.  In light of the structure of section 212, its legislative history, and
the fact that subsection 221(1) can support both the assertions of the
employer and employee, however, we do not find the reference to "human
factors" in 221 sufficient support for the Board's conclusion that there is no
offset in the absence of express statutory language. 
	[¶11]  Boehm also contends that, if the employer can offset specific
loss benefits against ordinary incapacity benefits, employees with the most
serious injuries, like Boehm, who receive long-term total incapacity benefits
as a result of their injuries, will gain nothing by bringing a petition for
specific loss benefits.  Although in some cases specific loss benefits will be
entirely offset by incapacity benefits, we do not agree that employees gain
nothing from the statute.  In recognition of the "human factors," the
specific loss provisions provide a recovery of a minimum number of weeks
for the loss of enumerated body parts.  Moreover, the amount of that
minimum recovery is not affected by the employee's actual wage loss, see
Statement of Fact, L.D. 2464, § 212 (115th Legis. 1991) ("[s]ubsection 3
lists specific loss benefits under which the employee is entitled to receive
the listed number of weeks of benefits for the specific amputation,
regardless of any actual loss in wages" (emphasis added)), nor can it be
reduced by or coordinated with other types of employee benefits, 39-A
M.R.S.A. § 221(1).  Although not permitting a double recovery of incapacity
and specific loss benefits, the statute, nevertheless, provides a real benefit
to many injured employees.  We conclude that, in the absence of express
statutory language to the contrary, employers may offset specific loss
benefits by the amount of incapacity benefits previously paid to the employee
for the same injury.
	The entry is:
The decision of the Workers' Compensation
Board vacated.  Remanded to the Workers'
Compensation Board for further proceedings
consistent with this decision.
Attorney for appellee:	

Anthony J. Peverada, Jr., Esq., (orally)	
Senior Staff Attorney	
Workers' Compensation Board	
27 State House Station	
Augusat, ME 04333-0027	
Attorneys for appellant:

Robert J. Bower, Jr., Esq. (Orally)
Alexander F. McCann, Esq.
Norman, Hanson & DeTroy, LLC
P O Box 4600
Portland, ME 04112-4600