# Bourgoin v. J.P. Levesque & Sons

> Supreme Judicial Court of Maine · February 1, 1999 · 726 A.2d 201

URL: https://www.frixlaw.com/law-library/cases/9734579

## Case

- **Full name:** Russell BOURGOIN v. J.P. LEVESQUE & SONS
- **Court:** Supreme Judicial Court of Maine
- **Decided:** February 1, 1999
- **Citations:** 726 A.2d 201; 1999 ME 21
- **Precedential status:** Published
- **Opinion:** Dissent by Rudman
- **Judges:** Wathen, Clifford, Rudman, Dana, Saufley, Alexander, Calkins
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9734579

## Opinion text

RUDMAN, J.,
dissenting.
[¶ 9] I respectfully dissent. Subsection 201(4) of title 39-A provides:
4. Preexisting condition. If a work-related injury aggravates, accelerates or combines with a preexisting physical condition, any resulting disability is compensable only if contributed to by the employment in a significant manner.
39-A M.R.S.A. § 201(4) (Supp.1998). Because it is not listed in the implementing statute of title 39-A as having purely prospective application, section 201 applies retroactively to pre-1993 injuries and controls. P.L.1991, ch. 885, § A-10; see Morgan-Leland v. University of Maine, 632 A.2d 748, 748-49 (Me.1993) (section not listed in section A-10 applies retroactively to pre-1993 injury).
[¶ 10] The Board has failed to fulfill its statutory obligation. Subsection 201(4), by its plain language, obligates the Board to determine whether the work-injury accelerated or combined with the employee’s preexisting diabetes in a significant manner. Subsection 4 refers to “any resulting disability.” That term “disability” is broader than the term “incapacity” and includes permanent impairment. Had the Legislature intended subsection 4 to apply only to cases of incapacity it could have used a more specific term than “disability.” While some states *204 use the term “incapacity” and “disability” interchangeably, the Maine Act is unique in that it is one of the few Acts that has at one time, recognized “permanent impairment” as a “loss of bodily function” concept distinct from wage loss. See 1C Arthur Larson, The Law of Workmen’s Compensation § 57.14(f) (1993). In light of the Legislature’s use of this broad term “disability,” I would conclude that an employee may receive permanent impairment benefits for the combination of work and preexisting nonwork-injuries as long as the work-injury “accelerates or combines with” the preexisting condition.
[¶ 11] The employer contends, however, that the term “permanent impairment,” by definition, cannot refer to anything other than impairment caused by a work-related injury. At the time of the employee’s injury, “permanent impairment” was defined to mean “any anatomic or functional abnormality or loss existing after the date of maximum medical improvement which results from the injury.” 39 M.R.S.A. § 2(15) (1989), repealed and replaced by P.L.1991, ch. 885, §§ A-7, A-8 (codified as 39-A M.R.S.A. § 102(16) (containing identical language)) (emphasis added). Because permanent impairment is defined with respect to work-related causes, it is impossible for “permanent impairment” to be the result of a non-work-injury.
[¶ 12] As we suggested in Estabrook v. Steward-Read Co., 129 Me. 178, 185-86 , 151 A. 141, 145 (1930), however, when a work-injury “accelerates” a preexisting condition, it may be fictitious to suggest that permanent impairment is solely the result of a preexisting condition. The answer to the employer’s argument depends on what it means to “accelerate” or “combine with” a preexisting condition in subsection 201(4). If a subsequent work-injury “combines with” a preexisting condition to such an extent that the two conditions are essentially a single condition, then the employee’s preexisting condition is actually attributable to the work-injury. For example, consider an employee with a preexisting, but asymptomatic, back-injury. If a subsequent work-injury accelerates that condition and creates a permanent impairment that may not have occurred in the absence of the work-injury, then it may not be possible to say that any portion of the permanent impairment is solely attributable to the preexisting condition. Indeed, this appears to the basis of Estabrook, 129 Me. at 185-86 , 151 A. at 145 .
[¶ 13] In Poitras v. R.E. Glidden Body Shop, Inc., 430 A.2d 1113, 1117-18 (Me.1981), we held that the employee was entitled to compensation for the entire incapacity resulting from the combination of the employee’s work-related wrist-injury and a preexisting eye and stomach condition, even though “[t]here [was] no showing that the work-related injury aggravated, or in any way affected, the workers’s preexisting but non-disabling health impairments.” Id. at 1115 . I conclude that subsection 201(4) was drafted in response to Poitras and similar cases. See L.D. 2464, Statement of Fact (115th Legis.1991).
[¶ 14] I would suggest that subsection 201(4) was not intended to modify the rule of Poitras on the issue of compensability of a work-injury combined with an unrelated preexisting condition. The statute was intended to limit the rule of Poitras by adding the requirement that the work-injury accelerate or combine with the preexisting condition “in a significant manner.” The phrase “in a significant manner” appears to be the key change to the rule. For example, an employee who has preexisting multiple sclerosis and suffers a minor subsequent work-injury, such as minor facial disfigurement, would not be able to look to his employer for full benefits for his multiple sclerosis, because the work-injury does not “combine with” the nonwork-injury “in a significant manner.” If, however, the subsequent work-injury is more significant, for example blindness, or if the injury significantly accelerates the progression of multiple sclerosis (if that is medically possible), then it may be possible to meet the “significant manner” standard of subsection 201(4).
[¶ 15] The Legislature’s enactment of 39-A M.R.S.A. § 201(4), by its plain language, controls in any case involving the combination of a work-injury and preexisting conditions. The Board erred in not making a determina *205 tion under section 201(4). I would remand to the Board for the initial application of subsection 201(4) to the facts of this ease.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734579. Public record. Not legal advice.