Math and the law


In a recent entry, I noted that I looked forward to Justice Jabar bringing his expertise on administrative appeals to the SJC through his Superior Court experience in Kennebec County.  Two of the last decisions he issued before his official elevation confirm my views.

The first was an 80C appeal successfully pursued by, among others, Pierce Atwood's Chris Roach and Lucus Ritchie.  Maine Automobile Dealers Association Insurance Trust et al. v. Superintendent of Insurance et al., Decision and Order, Docket Nos. AP-71, AP-72, AP-73, AP-74 (Me. Super. Ct. Aug. 31, 2009).  Anthem Health Plans of Maine, among other entities, challenged the "savings offset" calculation set by the Superintendent of Insurance under 24-A M.R.S.A. s. 6913 (this process has been changed going forward). The Superintendent found savings of $48.7 million.  Justice Jabar vacated the findings, holding among other things, that the Superintendent had exceeded her authority in re-assessing findings of the Dirigo Health Agencies' Board of Trustees and that the calculation was not supported by the record.  So now the matter must go back to the Board for a recalculation.  Winning a substantial evidence argument is never easy - while there was a legal issue regarding the scope of the Superintendent's review, too, this was one complicated case.  So kudos, to Chris and Lucas, and to Justice Jabar for wading through the thicket.  The opinion is,  as he tends to do, very cut-to-the-chase, while covering all the necessary points.  

The second case is one I worked on with Alan Muir and Katy Rand of PA - Maine State Chamber of Commerce et al. v. Workers' Compensation Board, Decision and Order, CIvil Action Nos. CV-08-256 & 08-262 (Me. Super. Ct. Aug. 31, 2009).  Technically, this was not an 80C appeal, but a challenge to rulemaking – the 2006 workers compensation board "permanent impairment threshold."  A challenge to a rule is technically a declaratory judgment action, not a Rule 80C appeal, but I've found that the easiest way to handle this type of case is to micmic the 80C process as closely as possible, so this was decided on the closest equivalent to 80C briefing in the regular civil litigation context – judgment on a stipulated (the administrative) record.  Technically speaking again, this isn't quite like 80C briefing, because the Superior Court on a stipulated record makes findings of fact, but as a practical matter, it works pretty well.   

While there are some complicated aspects to this one, too (thank you Alan for leading me through the worker's comp forest), in the end again the issue was fairly straightforward.  The law (39-A M.R.S. s. 213) says that every two years the Board is supposed to identify the threshold of permanent impairment of the top 25% most greatly permantly impaired workers, because they receive greater benefits.  So, for example, if the PI impairment threshold is 13%, that means workers with PI of that or greater receive the higher benefits.  This means, as a practical matter, that labor interests will like a lower threshold and management a higher one.  To make a long story short, the board was calculating the threshold by including 0% PI cases in the denominator.  Now, like many liberal arts majors, I became a lawyer because math is not my forte, but even I could see how doing that jiggers the PI number lower - the more cases in the denominator, even if at 0%, the more it will ooch down the threshold.  (You can try this at home.  Take four people with impairments of 50%, 40%, 30% and 20% – the top quarter is at 50%, right – 1/4?  Now throw in four more, 0% cases.  You now have eight total in your denominator, so the top quarter is 2/8, not 1/4, right?  So the threshold goes down one notch, from 50% to 40%).          

Justice Jabar accepted our position that including the 0% PIs was arbitrary and capricious, and so struck the threshold down.  It's nice to have the rules of mathematics and the rules of law coincide.

Tomorrow I am off to Macedonia for a week for some USAID work (if you need some advice on the EU electricity directive, let me know).  Happy travels to all on this holiday weekend.