By way of background, the Maine Supreme Court has found, “[t]he retiree presumption is designed to assist fact-finders in determining when an employee who has reached or neared the conclusion of his or her working career will remain eligible to receive workers’ compensation benefits.” Downing v. Dep’t of Transp., 2012 ME 5. In Cesare v. Great N. Paper Co., 1997 ME 170, the employee announced an intention to retire early and was on the cusp of retirement when he sustained a new work injury. Due to the effects of the new work injury, he went out of work voluntarily before his retirement date; he was not working on the day he retired. The Court held that because he was not working as a result of a work-related injury, Cesare did not terminate active employment on 2/1/87.
“The fact that an employee has announced an intention to retire, or requested the necessary paperwork, or applied for retirement, does not affect the status of the employee as actively employed until the effective date of retirement. The presumption did not apply. The Cesare Court distinguished Bowie v. Delta Airlines, 661 A.2d 1128 (Me. 1995) where the employee argued that because he was working light-duty at the time of retirement, he was not actively employed for purposes of § 223. The Maine Supreme Court rejected this argument, holding that the phrase “active employment” is usually understood to mean one who is actively on the job and performing the customary work of his job.
In Perry v. Meadwestvaco, WCB App. Div. No. 17-29 (September 13, 2017) the employee appealed a decision denying his Petitions for Restoration due to the “retirement presumption.” The Appellate Division found the ALJ’s application of the retirement presumption was not erroneous. Although the employee was not performing the same duties of the job he held at the time of his original work injury, he performed the customary duties of his job, with restrictions, for many years until retirement. The Appellate Division found this work constitutes “active employment” for purposes of the presumption. The Appellate Division went one step further and noted, as an aside, that the employee did not prove that he had been working under duress or that he was unable to perform work suitable to his qualifications; two avenues which may offer relief from the retirement presumption if proven.
This is not the first decision this year from the Appellate Division dealing with the retirement presumption. In Wing v. NewPage, WCB App. Div. No. 16-5 (March 7, 2016) the Appellate Division applied the retirement presumption because the employee continued working, albeit light-duty, up to the date of retirement from active employment. In Hallock v. NewPage, WCB App. Div. No. 16-6 (March 7, 2016) the Appellate Division found the presumption applied where an employee had used accrued vacation time leading to a retirement date. In Casey v. NewPage, WCB App. Div. No. 16-9 (March 22, 2016), the Appellate Division found the presumption applied because the employee was actively employed at the time of retirement despite her claim that she retired because she was working with restrictions for financial reasons despite her injuries, which constituted coercion by the employer.
Expect more litigation on the retirement presumption in light of the fact-specific nature of workers’ compensation matters and the ever-changing law. The Appellate Division suggests that under the right facts (i.e. duress or an inability to perform work suitable to ones restrictions) the presumption may not apply. Time will tell whether the Appellate Division addresses an appeal with these facts in the future. For now, it is clear that as long as an employee is working in some capacity up until a retirement date, this is sufficient to trigger the presumption.
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