## Facts

- Richard Fecteau, a 39-year-old carpenter, sustained a compensable right-ankle injury while working for Rich Vale Construction, Inc., and received benefits for total incapacity under an approved agreement.
- By January 1974, his physician stated he could perform “light work” that avoided climbing ladders and walking on rough or uneven ground, and advised attempting light duty to test functional capacity.
- On June 28, 1974, Fecteau began working as a school janitor, five days per week, eight hours per day, earning $90 per week.
- The janitorial work required extensive walking on level floors and included opportunities for rest; duties included dusting, washing floors, trash disposal, and general maintenance.
- The employer and insurer petitioned for review of incapacity, arguing the janitorial wage did not necessarily reflect Fecteau’s true earning capacity.

## Issues

1. Whether the Commission erred by using the employee’s actual post-injury earnings as the measure of “current ability to earn” for partial incapacity, without additional proof that the job was the highest-paying work reasonably available within his limitations.
2. Whether the employee must prove reasonable but unsuccessful efforts to find more remunerative suitable work before actual earnings may be treated as earning capacity under the partial-incapacity statute.

## Decision

- The Supreme Judicial Court of Maine affirmed the pro forma judgment upholding the Industrial Accident Commission’s decree.
- The Commissioner’s finding of partial incapacity and order for partial benefits of $53.14 per week effective July 30, 1974 (with statutory continuation and adjustments) was sustained.
- The Court held the Commissioner did not err in treating the janitorial wages as evidence of current earning capacity on this record.

## Legal Principles

- Under Maine’s partial-incapacity statute (39 M.R.S.A. § 55), post-injury “earning capacity” is a fact determination based on what the employee can realistically earn given the injury and employment conditions.
- Actual post-injury earnings may be prima facie evidence of earning capacity and may be relied on unless shown to be unrepresentative (e.g., sheltered work or other distorting circumstances).
- The employee is not automatically required to prove the current job is the highest-paying suitable work available as a prerequisite to using actual earnings as earning-capacity evidence.
- Appellate review of the Commission’s earning-capacity finding is limited; the finding stands if supported by any competent evidence.

## Conclusion

Because competent evidence supported that the janitorial job fit Fecteau’s medical restrictions and reflected what he could realistically earn at the time, the Commissioner could use his actual earnings to measure earning capacity, and the award of partial-incapacity benefits was affirmed.


Fecteau v. Rich Vale Constr., Inc., 349 A.2d 162 (Me. 1975)