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 Ap pellate	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	 airw ays	 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	 Ba iley	 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

ma ximum	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.	 201 5,	 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	incapacity 4 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	im pairment	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	medica l	 report	 constituted	 a	 change	 of circumstances	warranting	a	new	permanent	impairment	finding , and	reduced Bailey’s	per manent	impairment level	 to	0%. The	decree	 terminated	Bailey’s entitlement	 to	 further	compensation	b ecause his 0%	permanent	impairment rating ended his	eligibility to receive benefits without	a	 temporal	 restriction and	 because	 he	 had already	 received	 benefits for	 longer	 th an	 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.	20 15,	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	 ha d	 failed	 to	 show	 any	 change	 in	 the level	 of Bailey’s	incapacity, and	the	City	did	not	challenge	that	issue	on	ap peal	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	 re litigation	 of	 that	 issue. The	 Appellate	 Division further	concluded	that	there	existed	no	significa nt	change	of circumstances to warrant	the	hearing	officer	revisit ing	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	 s eeking	 to change the permanent	 impairment level associated	 with	 an employee’s	 work

- rela ted	 injury after	 that level has	 been established by	 a	 prior decree

. Th e	 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	judica ta	 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,	w hen	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	 Legislat ure	 has recently amended	 the	workers’	c ompensation	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 deci sions	 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;	 constitu tes	 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.	Pape r,	Inc. , 1997	ME	232,	¶	10,	704 A.2d	375

. B. Res	Judicata	and Permanent	Impairment [¶1 0 ]		“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	47 8, 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 [¶ 1 1] 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,	 h is entitlement	 to receive	compensation	is	capped	at 260 7 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	 n o	 statutory	 cap.	 	 39

- A	 M.R.S. § 213 (1) .	 	 “Permanent	 impairment,”	 as	 defined	 by	 the	 statute,	 means	 “any anatomic	or	functional	abnorma lity	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	 b e 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	o f	function	can no	 l onger	 be	 reasonably	 anticipated,	 based	 upon reasonable	 medical probability.” Id. §	102(15). [¶1 2 ]		Read	together,	the	above	provisions	provide	for	a	260

- week	cap for	 payment	 of	 benefits	 unless	 the	 injured	 employee’s	 (1)	 “anatomic	 or fu nctional	a bnormality”	 (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. [¶1 3 ]	 	 Here,	 the	 Appellat e Division’s	 conclusion	 that	 re litigation	 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. C f

. 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 [¶1 4 ] This	 is	 in	 direct	 contrast	 to	 the	 statute’s	 inclusion	 of	 explicit proced ures	 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	 “change d 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	de cision	 .	 .	 .	 to show	 a	 change	 of circumstances	 .	 .	 .	 which	 may	 be	 met	 by	 either	 providing comparative	 medical	 evidence,	 or	 by	 showing	 changed	 economic
ci rcumstances.” 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) (pet ition	for	review	of	incapacity)

. [¶1 5 ] Th is distinction	 between	 the	 determination of	 MMI	 and permanent	impairment on	one	hand and	an	employee’s	l evel	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	 level s in	 excess	 o f a	 specified whole person10 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	 p ermanent 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). W hether	 an	 employee	 actually qualifies to receive	 incapacity	 benefits	 is	 subject	 to a	 determination pursuant	 to 39

- A M.R.S.	§ 205(9). [¶1 6 ] 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 [¶1 7 ] Finally , by granting preclusive	 effect	 to decree s	 that	 establish
MMI	an d	permanent	impairment	for work

- related	injuries ,	the	Legislature	has minimized the e xpense and uncertainty associated	 with	 on going	 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 [¶1 8 ] The	 City	 next	 contends that	 the	 Appellate	 Division	 erred	 in concluding	that	the	City	faile d	to	show	a	sufficient	change	of circumstance s to
warrant	 re litigation	 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	n ot	err	in declining	to	apply that analysis here. [¶1 9 ]	 	 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	t he	Maine	Building	Trades

Workers’	Compensation	Board	Appellate	Division case	num ber	14

- 0050 F OR C LERK R EFERENCE O NLY