The employee suffered a back injury in 1991 while working as a carpenter for Messer. He began working for Brady Construction as a carpenter in 1994 and in 2002 suffered injuries to his knee and back. He returned to work for Brady in 2003 as an estimator and earned a higher average weekly wage than he did working for Messer as a carpenter. The Hearing Officer found that 80% of the employee’s incapacity was due to the 1991 Messer injury and 20% due to the 2002 Brady knee injury. The Hearing Officer awarded 100% ongoing partial benefits and ordered Brady to initially pay the full benefit based on the 2002 higher average weekly wage but went on to order Messer to reimburse Brady in an amount equal to the 1991 compensation rate.
The Court ruled that under the facts of this case, Messer was not responsible to reimburse Brady for its apportioned share of the benefits because the employee’s post-injury earning capacity exceeded the average weekly wage attributable to Messer’s date of injury. The Court noted that the apportionment statute is based on principles of subrogation. The most recent insurer has the initial responsibility to pay the employee and then is subrogated to the employee’s rights against other insurers. See 39-A M.R.S.A. §354(2), (3) (2006). Under this framework, the most recent insurer has no right to reimbursement from other insurers unless the employee has that right.
The statute in effect at the time of the Messer injury requires the employer to pay the employee two-thirds of the difference, due to the injury, between the employee’s pre-injury average weekly wage and the average weekly wage he is able to earn after the injury. See 39 M.R.S. §55-B. Because Trottier’s post-injury average weekly wage exceeded his average weekly wage at the time of the Messer injury, Trottier was not entitled to weekly benefits from Messer. Because Trottier had no right to benefits from Messer, and because Brady was subrogated to Trottier’s rights, Brady had no right to reimbursement from Messer either. The Hearing Officer’s decision was therefore vacated and remanded for further proceedings consistent with the Court’s opinion.
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