Stilson v. Dexter Shoe Co.

PER CURIAM. The employer, Dexter Shoe Co., appeals from a decision of a hearing officer of the Workers’ Compensation Board granting the employee’s petition for restoration and awarding 100% partial incapacity benefits based on the combination of a partially incapacitating injury and the unavailability of work within her restrictions. We agree with Dexter that the hearing officer erred in applying 39-A M.R.S.A. §§ 212, 213, 214 (Pamph.2000) to determine Stilson’s entitlement to benefits for a 1988 date of injury. P.L.1991, ch. 885, § A-10; see Tripp v. Philips Elmet Corp., 676 A.2d 927, 928, n. 1 (Me.1996). The applicable provision for Stilson’s date of injury is former 39 M.R.S.A. § 55-B (1989), repealed by P.L.1991, ch. 885, § A-7. Although work was available within the employee’s community, see 39-A M.R.S.A. § 102(6) (Pamph.2000), the hearing officer concluded that her lack of a driver’s license made those jobs unavailable. Because the Court is evenly divided, we affirm the hearing officer’s award of 100% partial incapacity benefits. The entry is: Judgment vacated only with respect to the application of 39-A M.R.S.A. § 213, 214 (Pamph.2000). Remanded to the Board for an award of 100% partial incapacity benefits pursuant to 39 M.R.S.A. § 55-B (1989), repealed and replaced by P.L.1991, ch. 885, §§ A-7, A-8. In all other respects, the judgment is affirmed.