STILSON v. Sedgwick James Insurance Company.

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Supreme Judicial Court of Maine.

Joyce STILSON v. DEXTER SHOE COMPANY Sedgwick James Insurance Company.

Docket No. WCB-99-717.

Decided: December 05, 2000

Panel:  WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ. Kevin M. Noonan, Esq., (orally), McTeague Higbee Case Cohen Whitney & Toker, P.A., Topsham, for employee. Anne-Marie Storey Hamer, Esq. (orally), Rudman & Winchell, LLC, Bangor, for employer.

Per curiam for an equally divided court.

 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   The applicable provision for Stilson's date of injury is former 39 M.R.S.A. § 55-B (1989), repealed by P.L.1991, ch. 885, § A-7.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   Remanded to the Board for an award of 100% partial incapacity benefits pursuant to 39 M.R.S.A. § 55-B (1989), repealed and replaced by P.L.1991, ch. 885, §§ A-7, A-8.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.

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