Delorge v. NKL Tanning, Inc., 578 A.2d 1173 (Me. 1990). · Go Syfert
Delorge v. NKL Tanning, Inc., 578 A.2d 1173 (Me. 1990). Cases Citing This Book View Copy Cite
10 citation events (2 in the last 25 years) across 1 distinct court.
Strongest positive: Doucette v. Washburn (me, 2001-02-22)
Top citers, strongest first. 7 distinct citers. How cited ↗
cited Cited as authority (rule) Doucette v. Washburn
Me. · 2001 · confidence medium
Delorge v. *585 NKL Tanning, Inc., 578 A.2d 1173, 1174 (Me.1990).
cited Cited as authority (rule) Boehm v. American Falcon Corp.
Me. · 1999 · confidence medium
As we stated in Delorge v. NKL Tanning, Inc., 578 A.2d 1173, 1174 (Me.1990), “[s]inee 1965 the award of permanent impairment has no relation to work incapacity or wage replacement.
cited Cited as authority (rule) Dumond v. Aroostook Van Lines
Me. · 1996 · confidence medium
Rather, it is based on the loss of function of a part of the body due to work-related injury.” Delorge v. NKL Tanning, Inc., 578 A.2d 1173, 1174 (Me.1990); Bean v. H.E.
cited Cited as authority (rule) Webber v. Bath Iron Works Corp.
Me. · 1995 · confidence medium
Warren Co., 642 A.2d 1852 , 1353 (Me.1994); Delorge v. NKL Tanning, Inc., 578 A.2d 1173, 1174 (Me.1990); Bean v. H.E.
cited Cited as authority (rule) Bushey v. S.D. Warren Co.
Me. · 1994 · confidence medium
Sargent Inc., 541 A.2d 944, 946 (Me.1988); Campbell v. Bates Fabrics, Inc., 422 A.2d 1014, 1015 (Me.1980); Delorge v. NKL Tanning, Inc., 578 A.2d 1173, 1174 (Me.1990).
discussed Cited "see" LaPointe v. United Engineers & Constructors (2×)
Me. · 1996 · signal: see · confidence high
See Delorge v. NKL Tanning, Inc., 578 A.2d 1173, 1174 (Me.1990).
cited Cited "see, e.g." Tracy v. Hershey Creamery Co.
Me. · 1998 · signal: see, e.g. · confidence medium
See, e.g., Delorge v. NKL Tanning, Inc., 578 A.2d 1173, 1174 (Me.1990) (“[T]he award for permanent impairment has no relation to work incapacity or wage replacement.
Retrieving the full opinion text from the archive…
Marcel DELORGE
v.
NKL TANNING, INC., Et Al.
Supreme Judicial Court of Maine.
Aug 30, 1990.
578 A.2d 1173
James M. Bowie (orally), Thompson & Bowie, Portland, for plaintiff., Daniel B. Wyman (orally), William S. Wilson, Richardson & Troubh, Portland, for defendant.
McKusick, Roberts, Wathen, Glassman, Clifford.
Cited by 8 opinions  |  Published
ROBERTS, Justice.

Marcel Delorge appeals from the decision of the Appellate Division of the Workers’ Compensation Commission affirming the hearing commissioner’s award on Delorge’s claim for permanent impairment pursuant to 39 M.R.S.A. §§ 56 & 56-A {repealed by P.L.1987, ch. 559, § B, 31-32). Delorge objects to the commissioner’s deduction of the identifiable and measurable degree of impairment attributable to previous non-work-related injuries. We affirm the Commission’s decision.

The commissioner found that Delorge sustained two work-related back and leg injuries in 1983. The two injuries resulted in a five percent permanent impairment to the back and a five percent permanent impairment to the left leg. The commissioner found that Delorge had a thirty percent permanent impairment to his back, ten percent permanent impairment to his left leg and ten percent permanent impairment to his right leg prior to the 1983 injuries. Delorge had back surgery in 1966, 1967 and 1969. He testified about work-related back and hip injuries from 1960 to 1982, but the commissioner was unpersuaded that the pre-1983 permanent impairment was work-related. He awarded Delorge benefits based on five percent permanent impairment to the back and five percent permanent impairment to the left leg. Contrary to Delorge’s contention, the findings are supported by the evidence.

[*1174] We agree with the Appellate Division’s conclusion that when “measurable permanent impairment exists prior to a [work-related] injury, impairment benefits may be reduced by the identifiable and measurable degree of impairment” that predated the injury. Since 1965 the award for permanent impairment has no relation to work incapacity or wage replacement. Rather, it is based on the loss of function of part of the body due to work-related injury. Bean v. H.E. Sargent, Inc. 541 A.2d 944, 946 (Me.1988). The plain meaning of sections 56 and 56-A preclude an award of benefits for preexisting non-work-related impairment that is medically identifiable and measurable because that impairment is not “due to” a work injury. 39 M.R.S.A. §§ 56 & 56-A.

Delorge’s reliance on Estabrook v. Steward Read Co., 129 Me. 178, 151 A. 141 (1930) is misplaced for two reasons. First, Estabrook dealt with the pre-1965 version of the statute that provided for wage replacement for a “presumed total incapacity on a weekly basis for the number of weeks specified in the statute.” Bean, 541 A.2d at 945. Second, in Estabrook there was a commission finding of the percentage of permanent impairment caused by a work-related injury “at least by way of acceleration or aggravation of a preexisting condition” but no finding of any measurable preexisting permanent impairment. Estabrook, 129 Me. at 180, 151 A. 141.

Moreover, Delorge’s reliance on 39 M.R. S.A. § 104-B (1989) and our decision in Pottle v. Bath Iron Works Corp., 551 A.2d 112 (Me.1988) is likewise misplaced. Both the statute and the Pottle opinion deal with “two or more occupational injuries ... which combined to produce a single incapacitating condition.” Pottle, 551 A.2d at 113; 39 M.R.S.A. § 104-B(1). In Delorge’s case the commissioner expressly declined to find that his pre-1983 injuries were work-related. Similarly, our decision in Brackett v. A.C. Lawrence Leather Co., 559 A.2d 776 (Me.1989) dealt with the issue of causation in relation to the determination of work-incapacity and not in relation to permanent impairment. The Brackett decision, therefore, has no application to the issue before us.

The entry is:

The decision of the Appellate Division of the Workers’ Compensation Commission is affirmed.

It is ordered that the employer pay to the employee $750 for attorney fees plus reasonable out-of-pocket expenses for this appeal.

All concurring.