Buckley v. S.D. Warren Co., et al. (Buckley II)

Background:

Buckley sustained work-related injuries in October 1996 (left shoulder), November 1996 (left shoulder), March 2000 (right shoulder) and October 2001 (both shoulders). In earlier Decrees, the Board found all four injuries compensable and apportioned responsibility equally. The Board found that the 2000 right shoulder injury was caused by the employee favoring his right arm due to the 1996 left shoulder injuries. The Board determined that Buckley had 7% permanent impairment to the left shoulder resulting from the two 1996 injuries, and 7% permanent impairment to the right shoulder resulting from the 2000 and 2001 injuries. The Board found no additional permanent impairment to the left shoulder from the 2001 injury.

The Hearing Officer did not “stack” permanent impairment. He based his decision on his finding that the 2000 right shoulder injury did not cause additional PI to the 1996 left shoulder injuries and that the 2001 bilateral shoulder injury did not cause any additional PI or aggravate or accelerate any of the prior injuries to either shoulder. The relevant statutory section in effect at the time of each of Buckley’s injuries was 39-A M.R.S.A. Section 213(1-A)(A). It defines permanent impairment as (1) the work injury at issue in the determination and (2) any pre-existing physical condition or injury that is aggravated or accelerated by the work injury at issue.

The employee appealed and the Law Court vacated a part of the decision addressing permanent impairment. The Court noted that permanent impairment could potentially be stacked because all of the permanent impairment resulted from injuries at issue in the determination” and that impairment to the left and right shoulders was “not unrelated”.

On remand, the Hearing Officer assigned 14% impairment to the 1996 left shoulder injuries by stacking 7% from the 2000 right shoulder injury. However, he did not stack impairment from the 1996 injuries onto the 2000 or 2001 injuries. Buckley again appealed.

Court ruling:

This time, the Court affirmed the Hearing Officer’s decision. The Court agreed with the Hearing Officer’s interpretation of its ruling in Buckley I that permanent impairment from a subsequent injury that was caused by a prior injury could be stacked onto impairment from the prior injury. In this case, because the 2000 right shoulder injury resulted from the 1996 left shoulder injuries, the Hearing Officer stacked the 7% from the 2000 injury onto the 7% on the 1996 injuries. Because the 1996 injuries were earlier in time and therefore could not have “resulted from” the 2000 or 2001 injuries, the Court agreed with the Hearing Officer’s decision not to stack impairment from the 1996 injuries onto the 2000 and 2001 injuries.

Keep in mind that this decision affects only those dates of injury prior to January 1, 2002 and applies to both pre-existing work-related and non-work-related conditions or injuries alike. The version of Section 213 in effect for those injuries still provides that pre-existing non-work-related conditions must be aggravated or accelerated by the work injury in order to be stacked. However, it is much easier to stack permanent impairment from a prior work-related injury. As long as a First Report of Injury was filed and the prior injury was not subject to a lump sum settlement with a finding of impairment equal to or in excess of the then applicable impairment threshold, it is enough if the prior work injury “combines with” the work injury at issue to contribute to the employee’s incapacity. There is no additional requirement that the prior work injury must “result from” the work injury at issue in the determination as was the case in Buckley.

View complete text of William Buckley v. S.D. Warren Co., et al.