MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	160

Docket: WCB-16-204

Argued: April	11,	2017

Decided: July	20,	2017

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

MICHAEL	F.	BAILEY

v.

CITY	OF	LEWISTON	et	al.

JABAR,	J.

[¶1]		The	City	of	Lewiston	and	its	insurer,	Cannon	Cochran	Management	

Services (referred	 to	 collectively	 as	 the	 City),	 appeal from	 a decree	 of	 the	

Workers’	 Compensation Board Appellate	 Division vacating	 the	 hearing	

officer’s	(Goodnough,	HO)1 grant	of	the	City’s	petition	to	determine	the	extent	

of	Michael	F.	Bailey’s	permanent	impairment.		See	39-A	M.R.S.	 §	322	 (2016).	

We	affirm	the	Appellate	Division’s	decision.		

I.		BACKGROUND

[¶2]	 	 The	 following	 facts,	 which	 are	 derived	 from	 a	 2014	 Workers’	

Compensation	 Board	 decree	 granting	 the	 City’s	 petition	 to	 determine	 the	

 1 Pursuant	to	P.L.	2015, ch.	297	(effective	Oct. 15,	2015),	Workers’ Compensation	Board	hearing	

officers	licensed	to	practice	law	are	now	designated	as	administrative	law	judges	(ALJ).		All	of	the	

decisions	made	by	now-ALJ	Goodnough	however,	were	made	before	this	change.		
2

extent	 of	 Bailey’s	 permanent	impairment, are	 supported	 by	 the	 record.	 	 See	

39-A	M.R.S.	§§	318,	322(3)	(2016).		Bailey,	who	at	the	time	of	the	2014 decree	

was	 sixty-five-years	 old,	 began	 working	 as	 a	 City	 of	 Lewiston	 firefighter	 in	

1975.	 	On	 October	 21,	 2001,	 he	 suffered	 a	 respiratory	 work	injury	 and	 was	

subsequently	 diagnosed with	 reactive	 airways	 deficiency	 syndrome	 (RADS).		

By	 way	 of	 a	 Workers’	 Compensation	 Board	 decree,	 Bailey	 began	 to	 receive	

partial	incapacity	 benefits	 stemming	 from	 that	injury	in	 2004.	 In	 2007,	 the	

City	 sought	 review	 of	 Bailey’s	 award	 of	 benefits and	 Bailey	 sought	 a	

determination	of	the	extent	of	his	permanent	impairment.	 The hearing	officer	

(Goodnough,	HO) denied	the	City’s	petition,	but	found	that	Bailey	had	reached	

maximum	medical	improvement	 (MMI) and	 that	 he	 had	 sustained	 an	injury	

that resulted	 in a	 permanent	 impairment	 level	 of	 32%.	 	 This	 determination	

was	based	on	the	results	of	an	independent	medical	exam	performed	pursuant	

to 39-A	M.R.S.	§	312	(2007).

2		

[¶3]	 	 Because the	 2007	 decree	 established	 that	 Bailey’s	 permanent	

impairment	 level	 exceeded	 15%,	 he	 was	 eligible to	 receive	 ongoing	

 2 Title	 39-A	 M.R.S.	 §	 312	 (2007)	 has	 since	 been	 amended.	 	 P.L.	 2015,	 ch.	 297	 §	 11	 (effective	

Oct. 15,	2015)	(codified	at	39-A	M.R.S.	§ 312	(2016)).		
3

compensation	 without	 a	 temporal	 “cap.”	 	 See	 39-A	 M.R.S.	 §	 213(1)	 (2007).

3		

The	City	did	not	appeal	from	the	2007 decree.		

[¶4]	 	 In	 2013,	 the	 City	 filed	 a	 petition seeking	 review	 of	 the	 level	 of	

Bailey’s	incapacity4 and	a	second	petition	seeking	to determine	 the	extent	of	

his	permanent	impairment.	 In	support	of	these	petitions,	the	City	introduced	

the	 results	 of	 an	 updated	 medical	 examination	 that	 indicated	 that	 Bailey’s	

level	of	permanent	impairment	had	decreased	to	0%.		

[¶5]		The	hearing	officer	rejected Bailey’s	claims	that	the	doctrine	of	res	

judicata	precluded	the	City’s	petition	to	determine	the	extent	of	his	permanent	

impairment, concluded that	 the	 new	medical	 report	 constituted	 a	 change	 of

circumstances	warranting	a	new	permanent	impairment	finding, and	reduced	

Bailey’s	permanent	impairment level	 to	0%.		The	decree	 terminated	Bailey’s	

entitlement	 to	 further	compensation	because	his 0%	permanent	impairment	

rating	ended	his	eligibility	to	 receive	benefits without	a	 temporal	 restriction

and	 because	 he	 had already	 received	 benefits	 for	 longer	 than	 the limit	

established	 for	 an	 injury	 resulting	 in	 0%	 permanent	 impairment.	 	 See	

39-A M.R.S.	§	213(1)(A).	

 3 Title	39-A	M.R.S.	 §	213(1)	 (2007)	has	since	been	amended.		P.L.	2015,	ch.	297	 §	8	 (effective	

Oct. 15,	2015)	(codified	at	39-A	M.R.S.	§ 213(1)	(2016)).

4 The	 Hearing	 Officer	 determined	 that	 the	 City	 had	 failed	 to	 show	 any	 change	 in	 the level	 of	

Bailey’s	incapacity, and	the	City	did	not	challenge	that	issue	on	appeal	to	the	Appellate	Division.	
4

[¶6]	 	 Bailey	 subsequently	 appealed	 to	 the	 Appellate	 Division.	 	 See	

39-A M.R.S.	§	321-B	(2014).

5		In	a	unanimous	decision,	the	Appellate	Division	

vacated	 the	hearing	officer’s decree,	concluding	 that	 the	2007	determination	

of	permanent	impairment	as	 of	 the	date	 of	MMI	was	 final, and	 therefore	 res	

judicata principles	 barred	 relitigation	 of	 that	 issue.	 	 The	 Appellate	 Division	

further	concluded	that	there	existed	no	significant	change	of circumstances	to	

warrant	the	hearing	officer	revisiting	the	issue	of	Bailey’s	MMI.	

[¶7]	 	 The	 City	 successfully	 petitioned	 for	 appellate	 review	 of	 the	

Appellate	Division’s	decision.		See	39-A	M.R.S.	§	322	(2016).		

II.		DISCUSSION

[¶8]		The	central	issue	on	appeal	is	whether	the	doctrine	of	res	judicata	

prevents	 a	 party	 from	 seeking	 to	 change	 the	 permanent	 impairment	 level

associated	 with	 an	 employee’s	 work-related	 injury	 after	 that	 level	 has	 been	

established	 by	 a	 prior	 decree.	 	 The	 City	 argues	 that	 res	 judicata	 principles	

should	not	prevent it	from	seeking	to	reduce Bailey’s	permanent	impairment	

level and	contends	that	the	Appellate	Division	erred	in	applying	the	doctrine	

of	 res	judicata	 to	 the	 facts	 of	 this	 case.	 	Bailey,	 on	 the	 other	 hand,	 contends	

that	the	Appellate	Division’s	decision	was	supported	by	the	plain	language	of	

 5 Title	39-A	M.R.S.	§	321-B	(2014)	has	since	been	amended.		P.L.	2015,	ch.	297	§	16 (effective	

Oct.	15,	2015) (codified	at	39-A	M.R.S.	§ 321-B	(2016)).
5

the	 statute,	 relevant	 case law,	 and	 policy	 concerns,	 and was	 therefore	 not	

erroneous.		We	conclude	 that the	doctrine	of	res	judicata	bars	relitigation	of	

the	permanent	impairment level	established	for	an	employee’s	work-related	

injury and	therefore	affirm	the	Appellate	Division’s	decision.	

A. Standard	of	Review

[¶9]		Previously,	when	a	hearing	officer	or	ALJ’s	decision	was	reviewed	

by	 the	Appellate	Division	and	 subsequently	appealed,	we would	 review	 “the	

[hearing	 officer’s	 or	 ALJ’s]	 decision	 directly.”	 	 Freeman	 v.	 NewPage	 Corp.,	

2016 ME	 45,	 ¶	 5,	 135	 A.3d	 340.	 	 However,	 the	 Legislature	 has recently	

amended	 the	workers’	compensation	statute	 to	provide	 that	“only	a	decision	

of	the	[appellate]	division	may	be	reviewed	on	appeal.”		39-A	M.R.S.	§	322(1);

see	P.L.	2015, ch.	469, §	2	(effective	July	29,	2016).		Therefore,	we	now	review	

decisions	 of	 the	 Appellate	 Division	 according	 to	 established	 principles	 of	

administrative	law,	except	with	regard	to	the	hearing	officer’s	or	ALJ’s	factual	

findings.6		See	Kroeger	v.	Dep’t	of	Envtl.	Prot., 2005	ME	50,	¶	7,	870	A.2d	566

(explaining that	we	will	only	vacate	an	agency’s	decision	where	that	decision	

“violates	 the	 Constitution	 or	 statutes;	 exceeds	 the	 agency’s	 authority;	 is	

procedurally	 unlawful;	 is	 arbitrary	 or	 capricious;	 constitutes	 an	 abuse	 of	

 6		“[I]n	the	absence	of	fraud,”	the	hearing	officer’s or	ALJ’s	findings	of	fact	are	final. 39-A	M.R.S.	

§ 318 (2016);	see	39-A	M.R.S.	§	322(3)	(2016).		
6

discretion;	 [or] is	 affected	 by	 bias	 or an	 error	 of	 law”).	 	 As	 we	 have	

consistently	done	in	the	past,	we	will	continue	to	afford	appropriate	deference	

to	 the	 Appellate	 Division’s	 reasonable	 interpretation	 of	 the	 workers’	

compensation	statute,	see	Hackett	v.	W.	Express,	Inc.,	2011	ME	71,	¶	9,	21 A.3d	

1019,	and	will	uphold	the	Appellate	Division’s interpretation	unless	“the	plain	

language	 of	 the	 statute	 and	 its	 legislative	 history”	 compel	 a	 contrary	 result.		

Guiggey	v.	Great	N.	Paper,	Inc., 1997	ME	232,	¶	10,	704 A.2d	375.		

B. Res	Judicata	and	Permanent	Impairment

[¶10]		“It	is	well	established	that	a	valid	judgment	entered	by	a	court,	if	

not	appealed	 from,	generally	becomes	res	judicata and	is	not	subject	 to	later	

collateral	attack.”		Standish	Tel.	Co	v.	Saco	River	Tel.	&	Tel.	Co.,	555	A.2d	478,	

481	(Me.	1989) (emphasis	omitted).		Likewise,	“valid	and	final	decisions	of	the	

Workers’	Compensation	Board	are	subject	to	the	general	rules	of	res	judicata

and	issue	preclusion.”		Grubb	v.	S.D.	Warren	Co.,	2003	ME	139,	¶	9,	837	A.2d	

117.	 	 Accordingly,	“[a]bsent	 specific	 statutory	 authority,	 the	 Board	 may	 not	

reopen	 or	 amend	 a	 final	 decision. Such	 a	 rule	 ensures	 finality	 of	 workers’	

compensation	decisions	and	effectuates	 the	legislative	desire	 for	speedy	and	

summary	 disposition	 of	 workers’	 compensation	 cases.”	 	 Guar. Fund	 Mgmt.	
7

Servs.	v.	Workers’	Comp.	Bd.,	678	A.2d	578,	583	(Me.	1996) (footnote	omitted)

(citations	omitted)	(quotation	marks	omitted).	

1. Statutory	Authority	

[¶11]	 	The	 workers’	 compensation	 statute	 provides	 that	 “[e]mployees	

with	 work-related	 injuries	 may	 be	 entitled	 to	 incapacity	 benefits	 for	 either	

total	 or	 partial	 incapacity,	 based	 on	 the	 difference	 between	 the	 employee’s	

pre-injury	 wage	 and	 post-injury	 earning	 capacity.”	 	 Morse	 v.	 Fleet	 Fin.	 Grp.,	

2001	ME	142,	¶	5,	782	A.2d	769;	see 39-A	M.R.S.	§§	211-213	(2016).		When	an	

injured	 worker	 is	 granted	 partial incapacity	 benefits,	 his entitlement	 to	

receive	compensation	is	capped	at	2607 weeks	unless it	is	determined	that	his

“permanent	impairment	.	.	.	resulting	 from	the	personal	injury	is	in	excess	of	

15%8 to the	 body,”	 in	 which	 case	 there	 is	 no	 statutory	 cap.	 	 39-A	 M.R.S.	

§ 213(1).	 	 “Permanent	 impairment,”	 as	 defined	 by	 the	 statute,	 means	 “any	

anatomic	or	functional	abnormality	or	loss	existing	after	the	date	of	maximum	

medical	 improvement that	 results	 from	 the	 injury.”	 	 39-A	 M.R.S.	 §	 102(16)	

 7 A	claimant	may	petition	for	an	extension,	but	the	statute	provides	that	such	an	extension	may	

not	exceed	an	additional	260	weeks.		See	39-A	M.R.S.	§	213(4) (2016).	

8 The	 Legislature	 requires	 that	 the	 permanent	impairment	 percentage	 threshold	 be	 reviewed	

yearly	 “so	 that	 25%	 of	 all	 cases	 with	 permanent	 impairment	 will	 be	 expected	 to	 exceed	 the	

threshold	 and	 75%	 of	 all	 cases	 with	 permanent	impairment	 will	 be expected	 to	 be less	 than	 the	

threshold.”	 	 39-A M.R.S.	 §	 213(2).	 	 The	 current	 threshold	 is	 11.8%.	 	 14	 C.M.R.	 90	 351	 002-1	

§ 1(1) (2014).
8

(2016)	 (emphasis	 added).	 	 “Maximum	 medical	 improvement”	 is	 defined	 as	

“the	date	after	which	further	recovery	and	further	restoration	of	function	can	

no	 longer	 be	 reasonably	 anticipated,	 based	 upon reasonable	 medical	

probability.”		Id.	§	102(15).

[¶12]		Read	together,	the	above	provisions	provide	for	a	260-week	cap	

for	 payment	 of	 benefits	 unless	 the	 injured	 employee’s	 (1)	 “anatomic	 or	

functional	abnormality”	 (2)	exceeding	15%	 to his body	 (3)	persists	after the	

date	on which	“further	recovery	.	.	.	can	no	longer	be	reasonably	anticipated,	

based	upon medical	probability.”		39-A	M.R.S.	§§	102(15)-(16),	213.	

[¶13]	 	 Here,	 the	 Appellate	 Division’s	 conclusion	 that	 relitigation	 of	

Bailey’s	 permanent	 impairment	 level	 was	 barred	 by	 the	 doctrine	 of	 res	

judicata	 is	 supported	 by	 the	 statute’s	 plain	 language	 and	 legislative	 history.	

Except	 for	 the	 very	 limited	 circumstances	 referenced	 in	 39-A	 M.R.S.	 §§	 319	

and	 321,	 the	 workers’	 compensation	 statute	 provides no opportunity	 for a	

redetermination	 of	a	hearing	 officer’s or	ALJ’s	findings	 regarding	permanent	

impairment	 or	MMI. Cf.	Hird	v.	Bath	 Iron	Works Corp.,	512	A.2d	1035,	1038	

(Me.	 1986) (concluding	 that	 the	 commission	 exceeded	 its	 authority	 in	

applying	 the	doctrine	 of equitable	 estoppel	 where	 there	 was	 no	 “express	 or	

implied	legislative	authority”	to	do	so).		
9

[¶14] This	 is	 in	 direct	 contrast	 to	 the	 statute’s	 inclusion	 of	 explicit	

procedures	 for	adjusting	benefit	levels	when	an	injured	employee’s	ability	to	

be	 gainfully	 employed	 changes.	 	 See,	 e.g.,	 39-A	 M.R.S.	 §	 205(9) (2016).	 	 We	

apply	 the	 “changed circumstances”	 test	 in	 those	 cases,	 requiring	 the	 party	

seeking	 to	 “increase	 or	 decrease	 compensation	 in	 a	 workers’	 compensation	

case	when	a	 benefit	level	has	 been	established	 by	a	previous	decision	 .	 .	 .	 to	

show	 a	 change	 of circumstances	 .	 .	 .	 which	 may	 be	 met	 by	 either	 providing	

comparative	 medical	 evidence,	 or	 by	 showing	 changed	 economic	

circumstances.”	 	 Grubb,	 2003	 ME	 139,	 ¶	 7,	 837	 A.2d	 117 (quotation	 marks	

omitted)	 (citations	 omitted) (petition	 to	 recalculate	 benefit	 level); see

McIntyre	v.	Great	N. Paper,	 Inc.,	2000	ME	6,	¶¶ 1,	5-6,	743	A.2d	744 (petition	

for	review	of	incapacity);	Folsom v.	New	England	Tel.	&	Tel.	Co.,	606	A.2d	1035,

1036-1038	(Me.	1992) (petition	for	review	of	incapacity).		

[¶15]	 This distinction	 between	 the	 determination	 of	 MMI	 and	

permanent	impairment on	one	hand and	an	employee’s	level	of	incapacity	on	

the	 other reflects	 the	 Legislature’s	 crafting	 of	 the	 workers’	 compensation	

statute	to	create	a	dichotomy	of	injured	workers.		See	39-A	M.R.S.	§	213(1)(A),	

(2).	 Those	 who	 have	 suffered	 workplace	 injuries	 that	 do	 not result	 in	

permanent	 impairment	 levels in	 excess	 of	 a	 specified	 whole	 person	
10

percentage	are	eligible to	collect	compensation	 for	no	more	 than	260	weeks.		

Id. §	 (1)(A).		On	 the	other	hand,	 those	who	have	suffered	particularly	severe	

injuries that	nonetheless	result	in	only	partial	disability	are	eligible	to	receive	

ongoing	 benefits	 without	 temporal	 limitations. Id.	 The	 permanent	

impairment	determination does	 not,	 however,	 govern	 whether	 a	 claimant	is	

actually	 entitled	 to	 receive	 benefits,	 either	 during	 or	 beyond	 the	 260-week	

limit.	 	 See	 39-A M.R.S.	 §	 205(9).	 	 Whether	 an	 employee	 actually	 qualifies	to	

receive	 incapacity	 benefits	 is	 subject	 to	 a	 determination pursuant	 to

39-A M.R.S.	§ 205(9).		

[¶16]	 A	determination of	permanent	impairment	as	of	the	date	of	MMI	

is	 the	method	 by	which	 the	 Legislature	 chose	 to	 differentiate	 between	 these	

two	classes	of	injured	workers.		 If	a	party were	able	 to	disturb	a	permanent	

impairment	 finding	 so	 as	 to either	 terminate	 an	 employee’s	 eligibility	 to	

receive ongoing	 benefits or	 award	 such	 eligibility	 after	 it	 had	 already	 been	

denied,	 the	 statute	 would	 be	 completely	 circumvented	 and	 the	 provisions	

creating	 the	 temporal	 dichotomy	 rendered	 superfluous.	 	 See	 State	 v.	

Thompson,	2008	ME	166,	¶	12,	958	A.2d	887 (“We	give	statutory	language	its	

plain	meaning	and	do	not	treat	language	as	superfluous	or	meaningless	.	.	. .”).
11

[¶17]	 	 Finally,	 by	 granting	 preclusive	 effect	 to	 decrees	 that	 establish	

MMI	and	permanent	impairment	for	work-related	injuries,	the	Legislature	has	

minimized the	 expense and	 uncertainty associated	 with	 ongoing	 and	

repetitive	litigation and	helped	to	 fulfill its	“desire	 for	 speedy	 and	 summary	

disposition	 of	 workers’	 compensation	 cases.”	 	Dunphe	 v.	 O’Connor,	 1997	 ME	

147,	¶	4,	697 A.2d	421 (quotation	marks	omitted).	

2. Change	of	Circumstances	

[¶18]	 	 The	 City	 next	 contends	 that	 the	 Appellate	 Division	 erred	 in	

concluding	that	the	City	failed	to	show	a	sufficient	change	of circumstances to	

warrant	 relitigation	 of	 the	 issue	 of	 Bailey’s	 permanent	 impairment	 level.	

Because	 a	 “changed	 circumstances”	 analysis	 does	 not	 apply	 to	 a	 permanent	

impairment	finding,	that	argument	is	unpersuasive.		See	39-A M.R.S.	§	205(9).		

Therefore,	the	Appellate	Division	did	not	err	in	declining	to	apply	that analysis

here.		

[¶19]	 	 For	 the	 reasons	 set	 forth	 above,	 we	 affirm	 the	 decision	 of	 the	

Appellate	Division	vacating	the	hearing	officer’s grant	of	the	City’s	petition	to	

determine	the	extent	of	Bailey’s	permanent	impairment.

The	entry	is:

Judgment	affirmed.	
12

John	H.	King,	Jr., Esq. (orally), Norman,	Hanson	&	DeTroy,	LLC,	Portland,	for	

appellant	City	of	Lewiston	and	Cannon	Cochran	Management	Services

Benjamin	DeTroy,	Esq.	(orally), Leary	& DeTroy,	Auburn,	for	appellee	Michael	

F.	Bailey

James	J.	MacAdams,	Esq.,	Nathan	A.	Jury,	Esq.,	and	Donald	M.	Murphy,	Esq.,	

MacAdam	Law	Offices,	Portland,	for	amicus curiae	the	Maine	Building	Trades

Workers’	Compensation	Board	Appellate	Division	case	number	14-0050

FOR	CLERK	REFERENCE	ONLY