Fecteau v. Rich Vale Constr., Inc. - 349 A.2d 162 (Me. 1975)

Rule:

It is both unreasonable and unfair to assert the position that notwithstanding that it is shown that the employee is working and earning substantial wages, the employee has a further burden to come forward with evidence that reasonable efforts by him to obtain work have shown the job at which he is in fact working to be the most productive employment available to him. The court decides that since the ultimate burden of proof to establish the extent of partial incapacity is upon the employer who has petitioned for a review of incapacity, the job at which the injured employee is in fact working and the income it produces provide a legally sufficient basis to support an Industrial Accident Commission determination as to the extent of partial incapacity in terms of weekly compensation. If the employer who is petitioning for review would have it otherwise, it is for such petitioning employer, as incident of the discharge of his ultimate burden to prove the extent of partial incapacity in terms of weekly compensation, to come forward with evidence that regular employment paying wages higher than those being earned by the employee, and compatible with the employee's limited physical ability to work, is reasonably available to the employee.

Facts:

Appellee employee sustained a compensable injury to his ankle, while working as a carpenter, for which he was paid compensation for total incapacity. Appellee became physically able to do light work not involving climbing ladders or walking on uneven surfaces. As a result, the appellee obtained a full-time job as a school janitor. Appellants, employer and its insurance carrier, filed a petition with the industrial Accident Commission for review of incapacity. The Commission determined that the appellee was entitled to compensation for partial incapacity based upon his earnings in the janitorial job. On appeal, the appellants alleged that the Commissioner erred by fixing the employee's partial incapacity based upon his earnings in the janitorial job where the employee failed to present evidence that the janitor job was the highest paying job he could find compatible with his limited ability to work.

Issue:

Did the Commissioner err by fixing the employee's partial incapacity based upon his earnings in the janitorial job, where the employee failed to present evidence that the janitor job was the highest paying job he could find compatible with his limited ability to work? 

Answer:

No.

Conclusion:

The court denied the appeal, holding that the wages the appellee made at the janitorial job constituted sufficient prima facie evidence of the extent of his ability to earn wages at a certain level, and the appellee was under no further burden to show that he tried to get a job that paid more. The court held that such evidence was sufficient to support the Commission's decision where the employer failed to present evidence showing that higher paying work compatible with his limited ability to work was reasonably available to the employee.