Dennis G. Crosen v. Blouin Motors., Inc.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2024 ME 38
Docket: WCB-23-147
Argued: February 7, 2024
Decided: May 16, 2024
Revised: June 4, 2024

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

DENNIS G. CROSEN

v.

BLOUIN MOTORS, INC., et al.

LAWRENCE, J.

[¶1] Blouin Motors, Inc., and its insurer, Maine Automobile Dealers’

Association Workers’ Compensation Trust (collectively Blouin) appeal from a

decision of the Workers’ Compensation Board Appellate Division affirming the

decision of an Administrative Law Judge (Elwin, ALJ) denying Blouin’s petition

to apply the entire Social Security offset provided by 39-A M.R.S. § 221(3)(A)(1)

(2024) to its compensation payments to its former employee, Dennis G. Crosen.

We decline to accept the Appellate Division’s interpretation of 39-A M.R.S.

§ 354(3) (2024) and conclude that Blouin is entitled to take the full offset

provided by section 221(3)(A)(1). We therefore vacate the decision of the

Appellate Division.
2

I. BACKGROUND

[¶2] The following facts are undisputed by the parties and were found

by the ALJ. See M.R. App. P. 23(b)(3); 39-A M.R.S. § 318 (2024) (“The

administrative law judge's decision, in the absence of fraud, on all questions of

fact is final . . . .”). Crosen is totally incapacitated due to the combined effect of

two work-related injuries: in 1984, he injured his cervical spine while working

for Rockingham Electric, Inc., and in 2002, he injured his lumbar spine while

working for Blouin Motors, Inc. The 1984 injury is forty percent responsible

for Crosen’s incapacity and the 2002 injury is sixty percent responsible for his

incapacity. On October 3, 2012, a hearing officer1 (Elwin, HO) awarded ongoing

total incapacity benefits and apportioned forty percent of the responsibility for

the benefits to Rockingham and sixty percent of the responsibility for the

benefits to Blouin. See 39-A M.R.S. § 354(1) (governing the apportionment of

liability when multiple injuries “combine to produce a single incapacitating

condition and more than one insurer is responsible for that condition”). The

hearing officer ordered Blouin to pay the entire compensation amount and

ordered Rockingham and its insurer to reimburse Blouin for forty percent of

1 The decision was issued before hearing officers were redesignated as administrative law judges.

See P.L. 2015 ch. 297 (effective Oct. 15, 2015).
3

that amount. See id. § 354(3) (providing for “subrogat[ion] to the employee’s

rights under [the Workers’ Compensation Act] for all [incapacity] benefits the

insurer has paid and for which another insurer may be liable”). Blouin was

ordered to pay Crosen $597.66 per week, and Rockingham’s insurer

reimbursed Blouin for its share of the incapacity benefits, which amounted to

$227.66 per week.2

[¶3] In 2014, Crosen began collecting old-age insurance benefits under

the United States Social Security Act, 42 U.S.C.A. §§ 301-1397f (Westlaw

through Pub. L. No. 118-41). By statute, Blouin’s obligation to pay weekly

incapacity benefits based on the 2002 injury “must be reduced” by half of the

amount of Social Security benefits that Crosen receives. 39-A M.R.S.

§ 221(3)(A)(1). No Social Security offset applies to the compensation that

Rockingham owes for the 1984 injury. See P.L. 1985, ch. 372, § A-26, emergency

clause (enacting the Social Security offset and providing that it applies only to

injuries occurring on or after June 30, 1985). Although the full offset in this

2 The Workers’ Compensation Board hearing officer (Elwin, HO) ordered Rockingham’s insurer to

reimburse Blouin for “[forty percent] of such benefits, calculated using its 1984 average weekly wage
(as adjusted for inflation),” but did not order cost-of-living adjustments to the sixty percent of the
benefits for which Blouin is responsible. Rockingham’s insurer paid Blouin its share of the weekly
benefits including inflation adjustments, which Blouin then passed on to Crosen. See Dunson v.
S. Portland Housing Auth., 2003 ME 16, ¶ 16, 814 A.2d 972. This resulted in the total weekly
incapacity benefit paid to Crosen increasing over time, but the dollar amount for which Blouin was
responsible remaining static.
4

case—half of Crosen’s weekly Social Security benefits—would result in a

$233.76 reduction in Crosen’s weekly incapacity benefit, the parties informally

agreed that Blouin would instead reduce its incapacity benefit payment to

Crosen by sixty percent of that amount, or $140.26 per week.3

[¶4] In March 2021, Rockingham’s insurer became insolvent and

stopped reimbursing Blouin for the portion of the total compensation

associated with the 1984 injury. Since then, as required by Maine Insurance

Guaranty Ass’n v. Folsom, 2001 ME 63, ¶ 13, 769 A.2d 185, Blouin has been

paying Crosen 100 percent of the compensation ordered in the 2012 decree,

less the $140.26 per week representing sixty percent of the full Social Security

offset.

[¶5] On July 12, 2021, Blouin petitioned the Board to apply the entire

Social Security offset of $233.76 per week to the compensation that it pays

Crosen. On May 13, 2022, the ALJ denied Blouin’s petition, citing 39-A M.R.S.

§ 354(3), which governs subrogation and provides that “[a]pportionment

decisions made under this subsection may not affect an employee’s rights and

benefits under this Act.” Blouin filed a motion for findings of fact and

3 Given that the compensation for the 1984 injury was not subject to a Social Security offset, it is
unclear why the parties agreed that Blouin would apply sixty percent of the offset amount rather than
the entire offset amount to its sixty percent portion of the total incapacity benefits owed.
5

conclusions of law on June 17, 2022. On July 12, 2022, the ALJ denied Blouin’s

motion.

[¶6] Blouin appealed the denial of its petition to the Appellate Division,

arguing that, as the sole payor of incapacity benefits, it is entitled to take the full

Social Security offset. The Appellate Division affirmed the ALJ’s determination

that Blouin’s taking the full Social Security offset would impermissibly reduce

Crosen’s benefits in violation of section 354 and would be contrary to our

decision in Juliano v. Ameri-Cana Transport, 2007 ME 9, ¶ 15, 912 A.2d 1244.

Blouin petitioned for appellate review of the Appellate Division’s decision, and

we granted its petition. See 39-A M.R.S. § 322 (2024); M.R. App. P. 23(c).

II. DISCUSSION

[¶7] Blouin argues that the Appellate Division erred in affirming the ALJ’s

decision for four reasons: first, 39-A M.R.S. § 221(3)(A)(1) mandates that the

payor of incapacity benefits reduce its payments by the full Social Security

offset, amounting to fifty percent of the recipient’s weekly Social Security

benefits; second, 39-A M.R.S. § 354 does not prohibit Blouin from taking the full

offset because it does not reduce the incapacity benefits to which Crosen is

entitled; third, we have previously permitted a full offset for Social Security

benefits under similar circumstances, see Berry v. H.R. Beal & Sons, 649 A.2d
6

1101, 1103 (Me. 1994); and fourth, because Blouin is entitled to the full offset,

it is also entitled to a credit for the overpayment of incapacity benefits paid

since the cessation of reimbursement from Rockingham’s insurer, during which

time Blouin has not taken the full statutory offset. Crosen responds that

permitting Blouin to apply the full offset would violate the Workers’

Compensation Act and our precedent in Juliano by impermissibly reducing

Crosen’s benefits attributable to the 1984 injury.4 Juliano, 2007 ME 9, ¶ 15, 912

A.2d 1244; see 39-A M.R.S. §§ 201(6), 354(3) (2024).

[¶8] We start by summarizing the standard of review and applicable

rules of statutory construction and then interpret the Act in accordance with

those standards. We also include a brief discussion of the applicability of Berry

to this case.

A. Standard of Review and Rules of Construction

[¶9] In a workers’ compensation case, “[w]e review questions of law,

including statutory interpretation, de novo.” Freeman v. NewPage Corp., 2016

ME 45, ¶ 5, 135 A.3d 340 (quotation marks omitted). In construing the

4 Crosen also argues that Blouin’s appeal should be dismissed as improvidently granted pursuant

to M.R. App. P. 23(c)(4). We decline to dismiss this appeal as improvidently granted because, as
explained in this opinion, “[t]he decision on appeal contains a substantial error on a question of law
resulting in substantial prejudice to one or more of the parties.” M.R. App. P. 23(b)(2)(B).
7

Workers’ Compensation Act, we attempt “to give effect to the Legislature’s

intent” by “look[ing] to the plain meaning of the statutory language, and

constru[ing] that language to avoid absurd, illogical, or inconsistent results.”5

Id. (quotation marks omitted). We “defer to the Appellate Division’s reasonable

interpretation of the workers’ compensation statute only if the statutory

language is ambiguous.” Charest v. Hydraulic Hose & Assemblies, LLC, 2021 ME

17, ¶ 10 n.6, 247 A.3d 709 (citation and quotation marks omitted).

B. Interpretation of the Workers’ Compensation Act

[¶10] Two sections of the Workers’ Compensation Act are particularly

relevant in this case: the statute governing apportionment of liability resulting

from multiple injuries and the statute establishing the Social Security offset.

The apportionment statute provides:

§ 354 Multiple injuries; apportionment of liability

1. Applicability. When 2 or more occupational injuries
occur, during either a single employment or successive
employments, that combine to produce a single incapacitating
condition and more than one insurer is responsible for that
condition, liability is governed by this section.

5 By statute, the Workers’ Compensation Act must be construed “to ensure the efficient delivery

of compensation to injured employees at a reasonable cost to employers. All workers’ compensation
cases must be decided on their merits and the rule of liberal construction does not apply.
Accordingly, this Act is not to be given a construction in favor of the employee, nor are the rights and
interests of the employer to be favored over those of the employee.” 39-A M.R.S. § 153(3) (2024).
8

2. Liability to employee. If an employee has sustained
more than one injury while employed by different employers, or if
an employee has sustained more than one injury while employed
by the same employer and that employer was insured by one
insurer when the first injury occurred and insured by another
insurer when the subsequent injury or injuries occurred, the
insurer providing coverage at the time of the last injury shall
initially be responsible to the employee for all benefits payable
under this Act.

3. Subrogation. Any insurer determined to be liable for
benefits under subsection 2 must be subrogated to the employee’s
rights under this Act for all benefits the insurer has paid and for
which another insurer may be liable. Apportionment decisions
made under this subsection may not affect an employee’s rights
and benefits under this Act.

39-A M.R.S. § 354(1)-(3); see Juliano, 2007 ME 9, ¶ 15, 912 A.2d 1244

(reiterating that “apportionment decisions made under this subsection may not

affect an employee’s rights and benefits under th[e] Act.” (alteration and

quotation marks omitted)). In Juliano, which concerned a worker who was

injured three times, an insurer that was responsible for compensation for the

second and third injuries was obligated to pay the entire benefit amount,

including the benefits (as adjusted for inflation) related to the first injury, after

the insurer responsible for compensation related to the first injury became

insolvent. 2007 ME 9, ¶¶ 2-3, 10-17, 912 A.2d 1244 (explaining that our

reasoning was grounded in “the Legislature’s decision to allocate the risk

among insurers in multiple injury cases so that the most recent insurer has the
9

exclusive responsibility to pay the employee and is then subrogated to the

employee’s rights as against any other insurers”).

[¶11] The statute authorizing an offset against workers’ compensation

payments based on the employee’s receipt of Social Security old-age insurance

benefits provides, in relevant part:

§ 221. Coordination of benefits

1. Application. This section applies when either weekly or
lump sum payments are made to an employee as a result of liability
pursuant to section 212 or 213 [for total or partial incapacity] with
respect to the same time period for which the employee is also
receiving or has received payments for:

A. Old-age insurance benefit payments under the United
States Social Security Act, 42 United States Code, Sections
301 to 1397f . . .

....

3. Coordination of benefits. Benefit payments subject to
this section must be reduced in accordance with the following
provisions.

A. The employer’s obligation to pay or cause to be paid
weekly benefits other than benefits under section 212,
subsection 2 or 3 [for presumed total incapacity and specific
losses] is reduced by the following amounts:

(1) Fifty percent[6] of the amount of the old-age
insurance benefits received or being received under

6 This percentage reflects “the employer’s share of social security taxes paid.” L.D. 1634,
Statement of Fact, § A-26, at 66 (112th Legis. 1985).
10

the United States Social Security Act. For injuries
occurring on or after October 1, 1995, such a reduction
may not be made if the old-age insurance benefits had
started prior to the date of injury or if the benefits are
spouse’s benefits . . . .

39-A M.R.S. § 221(1)(A), (3)(A)(1) (emphasis added).

[¶12] Section 221 was adopted “to keep injured employees from

receiving more income from a combination of Social Security or retirement

benefits plus workers’ compensation benefits than they would receive if they

continued to work.” Foley v. Verizon, 2007 ME 128, ¶ 7, 931 A.2d 1058; see also

Ricci v. Mercy Hosp., 2002 ME 173, ¶ 10, 812 A.2d 250 (recognizing five

purposes for the coordination of benefits: “(1) to reduce insurance premiums

and prevent carriers from withdrawing business from the state; (2) to ensure a

minimum income during the period of an employee’s incapacity; (3) to prevent

a double recovery of both retirement and compensation benefits; (4) to prevent

the stacking of benefits; and (5) to alleviate the burden on employers who are

required to pay into the workers’ compensation and social security systems”

(citations and quotation marks omitted)). Section 221 provides that benefit

payments “must be reduced in accordance with” its provisions, and that an

“employer’s obligation to pay or cause to be paid weekly benefits . . . is reduced

by” the Social Security offset. 39-A M.R.S. § 221(3)(A)(1) (emphasis added).
11

Whenever it applies, the Social Security offset necessarily reduces the amount

of workers’ compensation that the employee is entitled to receive. See id.

[¶13] We decline to adopt the Appellate Division’s interpretation of the

Act, as preventing Blouin from taking the full Social Security offset, for three

reasons. First, section 221(3)(A)(1) does not apply to the incapacity benefits

Crosen receives due to his 1984 injury; section 221 applies only to the

incapacity benefits attributable to his 2002 injury. See P.L. 1985, ch. 372,

§ A-26, emergency clause. Contrary to the arguments and assumptions of both

parties, the statute contains no reference to a partial reduction or an

apportionment of the offset based on an insurer’s share of responsibility for the

incapacity. See 39-A M.R.S. § 221. Though Blouin appears to have agreed

initially to take only sixty percent of the offset to reflect its share of

responsibility for the incapacity, see supra ¶ 3 & n.3, the statute does not require

or otherwise contemplate such a partial offset, see 39-A M.R.S. § 221. Blouin’s

payments “must be” reduced in accordance with section 221(3)(A)(1), and

Blouin is entitled to reduce its payments by the full offset of $233.76 per week.

[¶14] Second, Blouin’s taking of the full Social Security offset is not

apportionment that impermissibly reduces Crosen’s benefits. See id. § 354(3).

The Social Security offset provision applies only to the 2002 injury (and the
12

incapacity benefit obligation is no longer shared among multiple insurers), so

there is no basis for or need to apportion the offset. See P.L. 1985, ch. 372,

§ A-26, emergency clause. By taking the full offset, Blouin does not affect the

portion of Crosen’s benefit associated with the 1984 injury. The reduction in

Crosen’s benefit associated with the 2002 injury that will occur if Blouin takes

the full offset coheres with the goals underlying section 221 by preventing

recovery of both retirement and incapacity benefits. See Ricci, 2002 ME 173,

¶ 10, 812 A.2d 250. For the reasons noted in the preceding paragraph, section

221 requires Blouin to apply the total offset. Doing so would not violate section

354.

[¶15] Third, this case is distinguishable from Juliano. Here, unlike in

Juliano, Blouin did not challenge the original apportionment of liability between

Blouin and Rockingham and it has not argued that any subrogation is available

now that Rockingham’s insurer is insolvent. Cf. Juliano, 2007 ME 9, ¶¶ 15, 17,

912 A.2d 1244. Blouin simply argues that it should be able to apply the full

Social Security offset of $233.76 to the portion of the benefit for which it was

originally responsible. We agree.
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C. Berry Is Controlling Precedent

[¶16] Contrary to the conclusion of the Appellate Division, Blouin argues

that Berry controls the outcome of this case. See 649 A.2d 1101, 1103. Crosen

argues that Berry explicitly avoided addressing the issue of whether an offset

that applied only to one of multiple injuries and exceeded the incapacity benefit

attributable to that injury should be prorated to reflect the percentage that the

relevant injury contributed to the employee’s incapacity. See id. at 1103 n.5.

[¶17] In Berry, an employee had two work-related injuries. The first

occurred in 1977 while he was working for H.R. Beal & Sons, which at the time

was insured by Fireman Fund Insurance Company. The second occurred in

1990, also while he was working for H.R. Beal & Sons, but which by then was

insured by Commercial Union Insurance Company. Id. at 1101-02. In response

to petitions by the parties, the Workers’ Compensation Commission7

determined that each injury was fifty percent responsible for the employee’s

incapacity and that the employee’s benefits were subject to the full Social

7 At the time of the events in Berry, the agency that is now the Workers’ Compensation Board was

named the Workers’ Compensation Commission. See 39 M.R.S.A. § 91 (1989); P.L. 1991, ch. 885, § A-9
(effective Jan. 1, 1993).
14

Security offset.8 Id. at 1102. On appeal, we affirmed the Commission’s decision

because, though only the second injury was subject to the offset, the amount of

the offset was less than the benefit allocable to the second injury. Id. at 1103.

We “express[ed] no opinion as to the result if the social security offset exceeded

the workers’ compensation benefit allocable to injuries occurring on or after

June 30, 1985.” Id. at 1103 n.5 (quotation marks omitted).

[¶18] Crosen is correct that Berry did not decide whether an offset that

exceeds the benefit from a qualifying injury should be prorated; however, that

question is of no moment here because the facts of this case are directly

analogous to the facts of Berry. Here, the full Social Security offset is $233.76

per week, which is less than the weekly compensation associated with Crosen’s

2002 injury. Under the express holding in Berry, Blouin is entitled to take the

full offset.

III. CONCLUSION

[¶19] As we held in Berry, the plain language of section 221(3)(A)(1)

directs insurers to reduce qualifying workers’ compensation incapacity

benefits by fifty percent of the worker’s Social Security benefits—regardless of

8 The Social Security offset relevant to the appeal in Berry was codified at 39 M.R.S.A. § 62-B
(1989). No meaningful differences exist between former section 62-B and the current statute, 39-A
M.R.S. § 221(3)(A)(1).
15

whether the qualifying incapacity benefits only comprise a portion of the total

compensation received for the worker’s incapacity. 649 A.2d at 1101-03.

[¶20] In accordance with our opinion in Urrutia v. Interstate Brands

International, Blouin may be entitled to a credit for the portion of the offset that,

prior to this case, it did not take. 2018 ME 24, ¶¶ 16, 21-22, 179 A.3d 312

(“[B]oth the plain language of section 221(1) and its underlying purpose—to

prevent a double recovery by the employee—establish that the Legislature

intended that an employer is entitled to a ‘credit’ for past overpayments

resulting from the employee’s receipt of Social Security retirement benefits

during the same period when the employer was required to make the

incapacity benefit payments.”). Based on the record in this matter, however,

the issues of the extent of Blouin’s credit for overpayment and the means

through which Blouin might recover that overpayment under the pertinent

provisions of the Workers’ Compensation Act are not properly before us.9 We

therefore remand this matter to allow the parties an opportunity to further

9 It is not clear from the majority decision in Urrutia whether 39-A M.R.S. § 324 (2024) authorizes

the ALJ to order a payment holiday or other credit. See Urrutia v. Interstate Brands Int’l, 2018 ME 24,
¶ 22, 179 A.3d 312; see also id. ¶¶ 29-35 (Jabar, J., dissenting) (arguing that the section 221 credit
applies only to overpayments made by employers during the pendency of an appeal or motion for
findings of fact or conclusions of law); 39-A M.R.S. § 221(3)(B).
16

develop these issues and for a determination on these issues by an

administrative law judge and the Board.

The entry is:

The decision of the Appellate Division is vacated.
Remanded to the Appellate Division with
instructions to remand the matter to the ALJ for
further proceedings consistent with this opinion.

John J. Cronan III, Esq. (orally), Preti, Flaherty, Beliveau & Pachios, LLP,
Portland, for appellant Blouin Motors, Inc., and the Maine Automobile Dealers’
Association Workers’ Compensation Trust

Kevin M. Noonan, Esq. (orally), McTeague Higbee, PA, Topsham, for appellee
Dennis G. Crosen

Workers Compensation Board Appellate Division case number 22-0011
FOR CLERK REFERENCE ONLY