MAINE WORKERS' COMPENSATION CLAIM HANDLING GUIDELINES
- 1 DEFINITIONS
- 2 EXCLUSIVE REMEDY
- 3 JURISDICTION AND LIMITATIONS OF ACTIONS
- 4 COMPENSABILITY
5 EXCLUSIONS AND DEFENSES
5.1 Course of Employment
- 5.1.1 Engaged in the Furtherance of Employer’s Business
- 5.1.2 Not in Furtherance of Employer’s Business
- 5.1.3 Traveling Employees
- 5.1.4 Commuting
- 5.1.5 Premises and Parking Lot Cases
- 5.2 Related to Employment
- 5.3 Intentionally Self-Inflicted Injury or Death
- 5.4 Employee’s Intoxication
- 5.5 Employee’s Violation of Positive Orders of Employer
- 5.6 Personal Animosity
- 5.7 Hostile Attacks
- 5.8 Retirement
- 5.9 Incarceration
- 5.1 Course of Employment
- 6.1 Calculation of Average Weekly Wage
- 6.2 Total Disability
- 6.3 Partial Disability
- 6.4 Amputation or Loss of Use
- 6.5 Disfigurement/Scarring
- 6.6 Loss of Sight
- 6.7 Loss of Hearing
- 6.8 Penalties
- 6.9 Interest
- 6.10 Costs
- 6.11 Counsel Fees
- 6.12 Death Benefits
- 6.13 Medical Benefits
- 6.14 Refusal of Medical Treatment
- 6.15 Medical Services, Fees and Examinations
- 7 SUBROGATION OR CREDIT
- 8 ATTORNEYS
- 9 CLAIMS PROFESSIONALS
- 10 LITIGATION AND APPEAL
- 11 SETTLEMENT
- 12 INSURANCE
The term “employer” includes private employers, the State of Maine, counties, cities and towns as well as water districts and other quasi- public corporations of a similar nature, municipal school committees and design professionals. 39-A M.R.S.A. §102 (12)
The phrase “statutory employer” does not appear in the Maine Workers’ Compensation Act.
The Maine WC Act generally applies to all employers , except employers of domestic service workers and agricultural or aqua-cultural workers in certain circumstances. 39-A M.R.S.A. §102 401(1). Any self-employed person may elect to be covered as an “employee” by obtaining workers’ compensation insurance that clearly indicates the intention of the parties to provide such coverage. 39-A M.R.S.A. §102 (11)(B).
The term "Employee" as defined by the Maine WC Act includes officials of the State, counties, cities, towns, water districts and all other quasi-public corporations of a similar character, every duly elected or appointed executive officer of a private corporation (other than a charitable, religious, educational or other nonprofit corporations. Charitable, religious, educational or other nonprofit corporations may cause their executive officers to be employees of the corporation by specifically including the executive officer among those for whom the corporation secures payment of compensation. Similarly, any corporation that secures compensation for an executive officer causes the officer to be an employee) and firefighters, including volunteer firefighters who are active members of a volunteer fire association, volunteer emergency medical services persons and police officers, as well as persons certified by the Director of the Maine Emergency Management Agency as qualified search and rescue workers while performing search and rescue activity at the request of a State, county or local government entity. It includes every person in the service of another under any contract of hire, express or implied, oral or written, except persons engaged in maritime employment or in interstate or foreign commerce who are within the exclusive jurisdiction of admiralty law or the laws of the United States.
"Employee" includes any person engaged in harvesting forest products, except those who contract directly with the landowner, qualify for a predetermination of independent contractor status and perform all of the wood harvesting alone or with specifically defined family members. See 39-A M.R.S.A. §102 (11) (B-1).
If a person employs an independent contractor, any employee of the independent contractor is not considered an employee of that person for the purposes of the Maine WC Act. 39-A M.R.S.A. §102 (11) (A-8).
As of January 1, 2010, a person performing construction work on a construction site for a “hiring agent” is presumed to be the employee of the hiring agent, unless the person is a construction subcontractor or the person owns and operates an item of equipment weighing more than 7000 pounds and is hired by the hiring agent to operate the equipment on the site or to use the equipment to transport materials to and from the site. A person who leases such equipment from a person in the leasing business is considered the owner for purposes of this paragraph. 39-A M.R.S.A. § 105-A (A) & (B). “Hiring Agent” is defined as the person who hires or contracts with a person to perform construction work but does not include the owner or occupant of real property who contracts with a person to do construction work on that property. 39-A M.R.S.A. § 105-A (1)(D).
Employers of seasonal or casual agricultural or aqua-cultural workers are exempt. Employers of six or fewer agricultural or aqua-cultural workers are also exempt as long as they maintain their liability insurance limits at $100,000 times the number of workers and maintain medical payment coverage at $5000 minimum. Employees in “domestic service” are not required to be covered. 39-A M.R.S.A. § 401.
"Employee" does not include any person injured as a result of the person's voluntary participation in an employer-sponsored athletic event or an employer-sponsored athletic team, nor real estate brokers or salesperson whose services are performed for remuneration solely by way of commission if the broker or salesperson has signed a contract with the agency indicating the existence of an independent contractor relationship. 39-A M.R.S.A. §102 (11) (C & D)
The term "Employee" does not include any sentenced prisoners, with limited exceptions. 39-A M.R.S.A. §102 (11) (E-1-7). Also, by case law, “workfare recipients” are not employees under the Act. Closson v. Town of Southwest Harbor, 512 A.2d 1028 (Me. 1986).
Employers who hire workers within Maine to work outside the State may agree with these workers that the remedies under the Maine WC Act are exclusive with regard to injuries received outside Maine and all such contracts of hire, unless otherwise specified, are presumed to include such an agreement.
Although the Maine Supreme Court has previously suggested that the concept of joint employment (under which two employers could be jointly liable under the Workers' Compensation Act) might apply in Maine, it had not expressly adopted it. Bean v. Alrora Timber, Inc., 489 A.2d 1086 (Me. 1985). It subsequently applied the concept in denying an employee’s claim against a "special employer" in Doughty v. Work Opportunities Unlimited/Leddy Group, 2011 ME 126.
The definition of “employee” does not include independent contractors and real estate brokers and salespersons paid solely by commission who have acknowledged by agreement their independent contractor status. 39-A M.R.S.A. § 102(11)(A)(7) and (D). Be aware, however, that with other independent contractors, the claim will present a factual and legal question as to the claimant’s status, unless the parties have applied for a predetermination of status under 39-A M.R.S.A. § 105. Historically, employer “control” over the employee has been considered a vital factor in proving the employment relationship. West v. C.A.M. Logging, 670 A.2d 934 (Me. 1996).
On January 1, 2013, the Maine legislature adopted a new definition of “independent contractor” to be used by both the Department of Labor and the Workers’ Compensation Board. If an individual is performing services for remuneration, it creates a rebuttable presumption that he/she is an employee. This places the burden of proving an individual is an independent contractor on the employing entity. FIRST FIVE REQUIRMENTS FOR I/C STATUS - Failure to meet any one of the five tests in 39-A M.R.S. A § 102 (13-A) will result in a determination that an individual is an employee.
1. Essential right to control the means and progress of the work, except as to final results;
2. Customarily engaged in an independently established trade, occupation, profession or business;
3. Opportunity for profit and loss as a result of the services being performed;
4. Hires and pays the person's assistants, to the extent such assistants are employees, supervises the work;
5. Makes his or her services available to some client or customer even if right to do so is voluntarily not exercised or is temporarily restricted.
ADDITIONAL REQUIREMENTS TO ESTABLISH INDEPENDENT CONTRACTOR STATUS - The employing unit must also establish that at least three of seven additional criteria are met if an individual is to be considered an independent contractor.
1. The person has a substantive investment in the facilities, tools, instruments, materials and knowledge used by the person to complete the work;
2. Not required to work exclusively for other individual or entity;
3. Responsible for satisfactory completion or failure to complete the work;
4. Contract defines relationship and gives contractual rights if the contract is terminated prior to completion of the work;
5. Payment based on work performed and not solely on the amount of time expended;
6. Work outside the usual course of business for which the service is performed;
7. The person has been determined to be an independent contractor by the Federal Internal Revenue Service.
The Maine Workers’ Compensation Act is the exclusive remedy available to employees who sustain work-related injuries, illnesses, or diseases for claims against employers who have secured workers’ compensation coverage. 39-A M.R.S. A § 104. As long as the employer has met its obligation to provide workers’ compensation benefits through insurance, self-insurance or employee leasing (title 39-A M.R.S.A.§104 extends immunity from civil liability to employers who use private employment agencies to provide temporary help, as long as the employment agency secures workers' compensation insurance), it is immune from civil liability for injury to the employee. This immunity extends to all employees, supervisors, officers and directors of the employer, too. 39-A M.R.S.A. § 104. The immunity protects the employer against direct lawsuit by the employee as well as third-party lawsuits for contribution and indemnity. Only where the immunity has been clearly and expressly waived can a third-party claim for indemnity succeed, even when intentional acts of the employer are alleged. Li v. C.N. Brown Co., 645 A.2d 606 (Me. 1994).
Whether the exclusive remedy provision is applicable depends on whether the injuries in the case arose "out of and in the course of employment" within the meaning of 39-A M.R.S.A. § 104. In a series of cases, Maine’s Law Court has suggested that the ultimate question is whether an injury is sufficiently work-related to come within the exclusivity provision. Knox v. Combined Insurance Co., 542 A.2d 363, 366 (Me. 1988); Comeau v. Maine Coastal Services, 449 A.2d 362, 365-66 (Me. 1982). Maine’s Supreme Court has found that workers compensation is the exclusive remedy in at least two cases where the alleged injury included mental distress inflicted in the course of the handling of the claim. Lavoie v. Gervais, 1998 ME 158; Procise v. Electric Mutual Liability Ins. Co., 494 A.2d 1375 (Me. 1985). However, in the case of an injury allegedly inflicted by the actions of Commercial Union’s private investigator, the Maine Court ruled the alleged torts were not work-related within the normal meaning of that term.
In order to issue binding decisions on any claim, the Maine Board must have the legal power and authority to do so. That power and authority is expressed as “jurisdiction.” There are two kinds: jurisdiction over the subject matter of the claim and jurisdiction over the party against whom the claim is brought. If a claim is based upon an injury that happened to a person who is not a resident of Maine or if the injury occurred outside the State of Maine, then there may be an issue of whether the Maine Board has jurisdiction over the subject matter of the claim. Generally, if the injured employee is a Maine resident, the Board and Courts will exercise subject matter jurisdiction over the claim. Dissell v. Trans World Airlines, 511 A.2d 441 (Me. 1986).
If the claim is brought against an employer that does not do business in Maine or by an employee who was not hired in Maine or did not work in Maine, there may be an issue of whether the Maine Board has personal jurisdiction over the employer.
Maine’s long-arm statute, 14 M.R.S.A. § 704-A, and personal jurisdiction due process analysis are appropriately applied to the determination of whether the Maine Workers' Compensation Board has authority over claims against employers arising from injuries that occur in other states to Maine resident employees. It is possible to obtain long-arm jurisdiction for a suit based on an injury which incurred out of state, if the employment was the result of the employer's recruiting activity in Maine, even though the defendant's operations are conducted elsewhere. Cavers v. Houston McLane Co., 2008 ME 164.
Any time during which the employee is unable by reason of physical or mental incapacity to give notice, or fails to do so, on account of mistake of fact, may not be included in the computation of proper notice. 39-A M.R.S.A. § 301.
For injuries occurring before January 1, 2013, notice must be given to the employer within ninety (90) days of the injury. 39-A M.R.S.A. § 301. For injuries after January 1, 2013, the notice must be given within 30 days of the date of injury. Any time during which the employee is unable by reason of physical or mental incapacity to give notice, or fails to do so, on account of mistake of fact, may not be included in the computation of proper notice.
The notice need not be in writing and may be given by someone else on behalf of the employee, but it must be given to the employer (or to an officer of the corporation) or to any employee designated by the employer to receive such reports of accidents on the job. It should state the time, place and cause of the injury and the employee’s name and address, but these facts are not essential to meet the notice requirement. No notice is required if the employer or person designated to receive notice already has knowledge of the injury. If the claimant is self-employed and insured for workers’ compensation, then notice must be given by the claimant insured to the insurance carrier or insurance agent or agency.
Two years from date of Injury - An employee has 2 years from the date of injury or from the date the employer files a required First Report of Injury if required under 39-A M.R.S.A. § 303, whichever occurs later, in which to bring a petition for compensation. However, 39-A M.R.S.A. § 306 applies only to injuries on or after January 1, 1993. Earlier dates of injury are governed by prior versions of this statute applicable to the particular date of injury. See 39 M.R.S.A. § 95.
“Tolling of the Statute.” These limits may be extended by circumstances that prevent the time period from running (i.e., “toll” or suspend the running of the statute). Generally, the statutory period does not begin to run until the employer files a First Report of Injury, if required by §303. However, for a medical-only claim in which a First Report is not required to be filed, the failure to file the report does not toll the statute. Other factors, such as mistake of fact or inadequate mental capacity on the part of the employee will prevent or stop the statute from running. 39-A M.R.S.A. § 306.
If an employee dies, a petition must be filed within 1 year of the date of death or 2 years from the date of injury, whichever is later, but in any event not later than 6 years from the date of last payment.
Compensation for death from occupational disease is payable as provided in 39-A M.R.S.A § 215.
Notice must be given to the employer within 90 days of the “date of injury” as defined by the occupational disease law. 39-A M.R.S.A. §§ 301, 302, and 607, which is the date when the employee becomes incapacitated in the last job in which he was “injuriously exposed.” 39-A M.R.S.A. § 606. Notice must include the name of the employer where the employee was last “injuriously exposed” for a period of at least 60 days and the date when that employment stopped.
If any benefit is paid, the employee has 6 years from the date of the last payment of any benefit under the Act to file a petition. The insurance carrier has the burden of proof as to when the last payment was made. “Payment” includes voluntary payments under section 205 and medical payments under section 206. Under certain circumstances, treatment at an employer’s in-house medical facility can also constitute “payment” for purposes of the statute of limitations. Finally, a Board decision or agreement of the parties that establishes the injury can trigger the 6-year period, even if no benefits are paid.
The running of the statute of limitations may also be tolled by payments made by a prior or subsequent insurance carrier or self-insured employer. If a previous insurance carrier pays a medical bill on a new injury that occurs during the coverage period of a subsequent insurance carrier, the payment tolls the statute of limitations against the subsequent insurance carrier on the risk at the time of the injury. Lister v. Roland’s Service, Inc., 1997 ME 23. Similarly, payment by a subsequent insurance carrier on an earlier injury during a prior carrier’s coverage period may toll the statute of limitations as to the earlier injury, if payments were made with contemporaneous notice to the employer that they were made for treatment that was in part necessitated by a previous injury. Klimas v. Great Northern Paper Co., 582 A.2d 256, 258-59 (Me. 1990).
Some amendments to the statute of limitations may apply retroactively to prior dates of injury, if the underlying claim has not yet been extinguished by the statute of limitations as of the effective date of the amendment. Rutter v. Allstate Automobile Ins. Co., 655 A.2d 1258 (Me. 1995).
The Maine Workers’ Compensation Act provides compensation for any health or medical problem arising out of and in the course of employment including traumatic injuries, cumulative trauma, occupational diseases, significant aggravations of pre-existing conditions and psychiatric or psychological claims including certain stress claims as outlined below.
If a work-related injury aggravates, accelerates, or combines with a preexisting physical condition, any resulting disability is compensable only if contributed to by the employment in a significant manner. McAdam v. UPS, 2001 ME 4. The phrase “combines with” does not require a causal relationship between the pre-existing condition and the subsequent work injury, or even that the work injury and the pre-existing condition affect the same body part. Kotch v. Amer. Protective Services, 2002 ME 18. However, if an employee suffers a non-work injury or disease that is not causally related to a previous compensable injury, the subsequent non-work-related injury or disease is not compensable. 39-A M.R.S.A. § 201(5). Maine’s Supreme Court has held that this statute applies to all dates of injury and requires the hearing officer to apportion out the incapacitating effects of the subsequent non-work-related injury, even where the subsequent injury aggravates the prior work injury. Mushero v. Lincoln Pulp & Paper Co., 683 A.2d 504 (Me. 1996). However, in Roy v. BIW, 2008 ME 94, Maine’s Supreme Court held that section 201(5) provides only that a subsequent non-work injury cannot increase the level of or extend the duration of benefits. As long as an employee remains totally incapacitated by a work-related injury, and employee will still be entitled to total incapacity benefits despite the existence of a totally incapacitating subsequent non-work-related injury or disease. Note that even a subsequent injury at work may fall into this category. If an employee fails to preserve his rights with regard to a subsequent work related injury (by failing to give notice, for example), that injury will be treated as if it were a subsequent, non-work related injury. Lamonica v. Ladd Holmes, 1998 ME 190. In a case involving prior law, Maine’s Supreme Court ruled that an independent intervening cause of incapacity will not cut off the employer’s liability as long as the work injury remains at least a cause of incapacity, unless the intervening injury is totally incapacitating in and of itself, in which case, the work injury may cease to be a cause of incapacity at least during the period of the totally disabling condition. Mathieu v. Bath Iron Works, 667 A.2d 862 (Me. 1995).
While an accidental injury causing trauma or derangement to an employee’s body is obviously compensable, Maine provides compensation for many more esoteric types of injuries. The Workers’ Compensation Act previously referred to a "personal injury by accident." 39 M.R.S.A. § 51 (1964). (emphasis supplied). The "accident" limitation was viewed, in general, as requiring an unexpected or sudden occurrence. Towle v. Department of Transportation, State Highway, 318 A.2d 71, 73 (Me. 1974).
However, the Legislature amended the Act by deleting the accident requirement. It is no longer necessary to pinpoint a specific event or a definable incident as long as the injury arises in the course of employment and is related to employment. 39-A M.R.S.A. § 201(1). Thus, work-related disability may be shown to result from the cumulative effect of recurrent trauma caused by work duties.
Employees exposed to a serious risk of contracting a disease known to be highly contagious have been “injured” for purposes of compensation under the Maine Act. Thus, in Russell v. Camden Community Hospital, 359 A.2d 607 (Me. 1976), a nurse exposed to tuberculosis while attending to a patient was entitled to compensation when she contracted the disease herself. The Maine Supreme Court noted “… the requirement that the disease be "characteristic of or peculiar to" the occupation of the claimant precludes coverage of diseases contracted merely because the employee was on the job. For example, it is clear that the law was not intended to extend to an employee in a shoe factory who contracts pneumonia simply by standing next to an infected co-worker. In that example, the employee's exposure to the disease would have occurred regardless of the nature of the occupation in which he was employed. To be within the purview of the law, the disease must be so distinctively associated with the employee's occupation that there is a direct causal connection between the duties of the employment and the disease contracted. Id.
Heart conditions, including but not limited to heart attacks, are compensable if the work activity significantly aggravated the underlying condition
Psychological injuries are compensable under the Maine Workers’ Compensation Act as reflected in the following categories:
A post-injury or post traumatic psychological disability caused by a work related physical injury is compensable. Maine Courts have long recognized that mental injuries resulting from physical trauma may be compensable. Baker's Case, 55 A.2d 780 (1947); Reynold's Case, 145 A. 455 (1929) ("cerebral congestion" caused by fall compensable).
In McLaren v. Webber Hospital Association, 386 A.2d 734 (Me. 1978), Maine’s Supreme Court upheld a compensation award where the claimant suffered an acute schizophrenic episode as a result of a job-related sensitivity seminar he attended. The Court also has stated in dicta: "We perceive no reason why in appropriate circumstances [a gradual mental] injury is not fully compensable if in fact it is shown that the injury arose out of and in the course of employment. " Murray v. T. W.Dick Co., 398 A.2d 390, 392 (Me. 1979).
However, a purely mental injury (as opposed to a psychological problem that arises from a physical injury) is not covered by the Act if it results from “any disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action, taken in good faith by the employer.” Although 39-A M.R.S.A. § 201(3) recognizes the compensability of work-related mental stress injuries, as well as the psychological sequelae of physical work injuries, this statute also places a higher burden of proof (by “clear and convincing evidence”) on the employee attempting to prove a mental injury, and it requires that the claimed work stress be “extraordinary and unusual” and that it be the “predominant source” of stress that caused the injury in order to be compensable. Proof of the amount of stress must be by objective standards, not the employee’s misperceptions. Harvey v. H.C. Price Co., 2008 ME 161.
Mental stimulus such as fright, undue anxiety, and mental strain and stress leading to a physical injury also fall within the purview of the Maine Worker’s Compensation Act. Turner v. Kennebec River Pulp & Paper Co., 359 A.2d 304 (Me. 1976) (compensation awarded where emotional stress of job, in part, caused fatal myocardial infarction).
Maine’s Occupational Disease Law is codified at 39-A M.R.S.A §§ 601-615. In general, the WCA’s provisions for compensation for incapacity apply as well to diseases that are due to causes and conditions characteristic of a particular trade, occupation, process or employment.
39-A M.R.S.A. § 353 prohibits discrimination against an employee for making a claim or for testifying with regard to a claim. This language has been interpreted to mean that an employee cannot be discriminated against with regard to the exercise or attempted exercise of any right the employee has under the Act. Any hearing officer who has previously issued a decision in a case may not preside over a discrimination claim in the same case. The employee’s remedies are limited to reinstatement to the previous job, back pay and benefits, and reasonable attorney’s fees. Similarly, discrimination against a reinstated employee is prohibited with regard to “any employment decision, including decisions related to tenure, promotion, transfer or reemployment following layoff.” 39-A M.R.S.A. § 218(3).
39-A M.R.S.A. § 353 of the Act does not define “discrimination.” It simply says that the employer may not discriminate “in any way” against an employee who has made a claim or who has testified in a proceeding. Based upon the limited remedial powers listed however, we can fashion a definition. “Discrimination” is subjecting an employee to any adverse personnel action or condition of employment because the employee has made a workers’ compensation claim or has testified in a workers’ compensation proceeding, even for another employee. The most common general advice for avoiding this type of discrimination is to treat injured employees like all other employees. While easy to state, this advice can be difficult to follow. In the most general sense, what it means is that any personnel action, whether it is a routine performance evaluation or a disciplinary suspension or a termination of employment, needs to be reviewed for the possibility that it may be misinterpreted to be discriminatory. While it is always wise to create contemporaneous documentation of the reasons for any adverse personnel action, this good advice becomes essential in the context of an injured employee.
One frequently troublesome area is attendance at work. Absenteeism is a legitimate basis for discipline or other adverse personnel action, unless the absenteeism is the result of work-related disability or the need to attend medical treatment for that disability. Then any adverse personnel action needs an additional level of scrutiny. The Law Court has said that the Act guarantees an employee the right to be absent from work as reasonably necessary to treat for and recuperate from a work injury. This is not to say that an employer must hold the employee’s job open or retain the employee in employment for the duration of the medical recovery period. Termination of an injured employee is permissible if it is based on the employee’s physical incapacity to return to work, and is not due to the employee’s “testifying or asserting a claim” under the Act. Jandreau v. Shaw’s Supermarkets, Inc., 2003 ME 134.
Similarly, Maine’s Supreme Court has held that when there is no question that an employee cannot perform any work functions weeks after a work-related injury, and there is no evidence that the employee’s condition is likely to change in the near future, the employer is not required to maintain the nonworking employee on its employment rolls for long periods of time while the employee is unable to work. Lavoie v.Re-Harvest, Inc., 2009 ME 50.
The definition of compensability requires that the injury both “arise out of” and occur “in the course of” employment. Reams of legal opinions have been written about what these two phrases mean. In essence, however, “in the course of” means that the injury occurred during work and “arising out of” means that work activity or some condition in the workplace was a significant cause of the injury or medical condition. The claimant must prove both of these elements in every case. See Comeau v. Maine Coastal Services, 449 A.2d 362 (Me. 1982); Somes v. Flint Logging, 635 A.2d 941 (Me. 1993); Morse v. Laverdiere’s Super Drug Store and Feeney v. Saco & Biddeford Savings Institution, 645 A.2d 613 (Me. 1994).
Maine’s Supreme Court gave us a list of eight factors that are relevant in determining whether a particular injury arose out of and in the course of employment:
1) Whether at the time of the injury the employee was promoting an interest of the employer, or the activity directly or indirectly benefited the employer;
2) Whether the activity worked to benefit the needs of or accommodated the employer;
3) Whether the activity was in the terms, conditions, or customs of the employment, or were acquiesced in or permitted by the employer;
4) Whether the activity of the employee served both a business and personal purpose, or represented an insubstantial deviation from employment;
5) Whether the hazard or causative condition can be viewed as employer or employee created;
6) Whether the actions of the employee were unreasonably reckless or created excessive risk or peril;
7) Whether the employee’s actions were incidental to the employment or were expressly or implicitly prohibited by the employer; and
8) Whether the injury occurred on the employer’s premises.
Maine’s Supreme Court has emphasized that the overriding purpose of the Workers’ Compensation Act is "to compensate employees for injuries suffered while and because they were at work. Comeau v. Maine Coastal Services, 449 A.2d 362, 366-67 (Me. 1982). In Comeau, it expanded on the test for work-connection and provided a non-exhaustive list of considerations used in determining whether a particular injury is compensable under the Act much like those listed above. The concept of whether the employee was “engaged in the furtherance of employer’s business” is incorporated in the factors to be considered (see 1 & 2, above), and where an employee is not in any way acting in furtherance of the business, the provisions (and immunity) of the WC Act will not apply. Hebert v. International Paper Co., 638 A.2d 1161, (Me. 1994).
An activity that does not further the employer’s affairs will take that employee out of the course of employment (see above).
If an employee is injured while traveling to a distant worksite or while traveling for the employer, the injury is generally compensable, unless the employee was injured while deviating from the route necessitated by the employer’s destination or engaging in activities other than those required by the employer’s interests. For example, if the employee attending a seminar in a distant city is injured while buying his child a gift at the local toy store, the injury is not compensable under workers’ compensation. The activities involved were not in the furtherance of the employer’s interests.
An injury does not arise out of and in the course of employment if it occurs while the employee is commuting to and from the workplace. This is often referred to as the “going and coming rule” or the “public street” doctrine. In either case, the rationale for denying benefits is that the connection to work is not close enough and the activity, though perhaps precipitated by work, does not subject the employee to hazards significantly greater than those faced by the general public.
This may seem to be a very clear-cut limitation on the employer’s liability, but it is not. For example, if the employee is traveling to a distant worksite, then the employee is probably covered by workers’ compensation during the travel, even though it might seem that the employee is not at the workplace and is not yet working. In general, however, the liability line is drawn at arrival at or departure from the employer’s premises (including leased premises, such as parking lots), so long as the employee’s presence on the premises at a particular time is reasonable.
In Fournier v. Aetna, Inc., 2006 ME 71, Maine’s Law Court analyzed the extent of the “workplace, adopting concepts as stated in Professor Larson's treatise, which would include a common staircase as part of the employer's premises even if the employer does not have control over the staircase:
“When the place of employment is a building, it is not necessary that the employer own or lease the place where the injury occurred. It is sufficient if the employer has some kind of rite of passage, as in the case of common stairs, elevators, lobbies, vestibules, concourses, hallways, walkways, ramps, foot bridges, driveways, or passage ways through which the employer has something equivalent to an easement.” Larson’s Workers' Compensation Law § 13.04, at 13-44 to 13-45.
The Court upheld the hearing officer’s determination that because the outside staircase was part of the common area of the office building, the injury occurred on the employer's premises and even though the employee was returning to work from her lunch break at the time her injury. It noted that the hearing officer gave due consideration to several of the factors listed in Comeau, and reached the conclusion that the injury arose out of and in the course of employment.
Car Pool or Rideshare Programs - Maine’s Supreme Court has narrowly construed 39-A M.R.S.A. § 201(2) to apply only to travel that falls within the definition of “rideshare,” meaning home-to-work commuting for the purpose of energy conservation. Croteau-Robinson v. Merrill Trust/Fleet Bank, 669 A.2d 763 (Me. 1996).
In Abshire v. City of Rockland,Me., 388 A.2d 512 (1978), Maine’s Supreme Court recognized the "special errand" exception as another principle limiting the “public street” rule. There, the claimant, an off-duty police officer, was telephoned at home while eating lunch and told to report to the courthouse to testify in the afternoon. His injuries, sustained while traveling to the courthouse, were held compensable since he would not have made the journey but for the special request of his superior.
Maine’s Supreme Court noted that an employee’s accident in the employer’s parking, while leaving home after her normal work hours, could be compensable if it was found that a condition existed on the employer's premises which made the employee's exit into the public street hazardous, and was in fact a cause of the employee being injured after she had reached the street. Oliver v. Wyandotte Industries Corp., 308 A.2d 860 (Me. 1973).
The work injury need not be the only, sole or predominant cause of incapacity, but it must be a cause of incapacity. See Mathieu v. Bath Iron Works, 667 A.2d 862 (Me. 1995); Moore v. Pratt & Whitney Aircraft, 669 A.2d 156 (Me. 1995). Is the mechanism of the injury unexplained or idiosyncratic, as where an employee reports having fallen at work without knowing the reason? Such unexplained injuries may not be compensable. The Maine Law Court rejected the “positional risk” doctrine in Morse v. Laverdiere’s Super Drug Store and Feeney v. Saco & Biddeford Savings Institution, 645 A.2d 613 (Me. 1994), ruling that proof that an accidental injury happened during work and at work is not enough, if the evidence does not prove what caused the accidental injury. This is another way of saying that an injury must “arise out of” the work activity or the condition of the workplace in some relevant way in order to be compensable.
If injury or death results from the employee’s willful intent to injure or kill himself or someone else, then no compensation or other benefits are allowed. 39-A M.R.S.A. § 202
If the injury or death resulted from the employee’s intoxication on duty, then no compensation or other benefits are allowed. However, this provision does not apply if the employer knew the employee was intoxicated at the time of the injury or knew that the employee had a habit of being intoxicated on the job. 39-A M.R.S.A. § 202.
No benefits are payable when the injury is caused by violation of a positive order, the employee knew of the positive order, and the order prohibited an activity not connected with the employee’s work duties, as the injury cannot be said to be in the course of employment. Fournier's Case, 113 A. 270 (Me. 1921)
Employees who are injured as result of engaging in horseplay are treated as if they had been intentionally inflicted or as if the employee had been intoxicated. However, be aware that, like intoxication, if the employer was aware of the horseplay and did not take steps to prevent it, the injury may be deemed compensable. Petersen's Case, 25 A.2d 240, 1942 (Me. 1942)
When an employer knows of the occurrence of assaults in the past and fails to prevent their recurrence, a subsequent injury resulting from such an assault may be said to have followed as a natural incident of the work and to have been such that it would have been contemplated by a reasonable person, then it may be said to have arisen not only in the course of but also out of the employment and to be compensable under the Act. Petersen's Case, 25 A.2d 240 (Me. 1942)
If an employee terminates active employment and receives pension benefits, there is a rebuttable presumption of no loss of earning capacity. 39-A M.R.S.A. § 223. The presumption is intended to limit the ability of employees to collect wage loss benefits as a supplement to retirement. It does not bar benefits that are not duplicative of pension benefits, however, such as medical expense reimbursement. Bowie v. Delta Airlines, Inc., 661 A.2d 1128 (Me. 1995). An employee who “retires” but immediately obtains full time work elsewhere will not be deemed to have terminated active employment. Damon v. S.D. Warren, 2010 ME 24. To rebut the presumption, the employee must prove that he or she is “unable, because of the work-related disability, to perform work suitable to employee’s qualifications, including training and experience.” This phrase is interpreted to mean that, in order to rebut the presumption, an employee must show a total physical inability to perform any work that would otherwise be suitable to the employee’s qualifications, training and experience regardless of the availability of the work. Costales v. SD Warren, 2003 ME 15. Thus, an unsuccessful work search alone will not meet this burden. 39-A M.R.S.A. § 223 applies to any employee receiving non-disability payments of a pension or retirement fund (private or government, including Social Security) paid by the employer from whom workers’ compensation benefits are sought. This provision is retroactive to all dates of injury. It does not distinguish between voluntary and involuntary retirement. It does not apply to medical benefits. The employee must be actively employed, but that does not mean that the employee must be working at full capacity. A light duty full time job can constitute “active employment.”
A person who is incarcerated following conviction of a crime (even while awaiting sentencing) is not entitled to receive compensation for incapacity, unless the injury was incurred during certain limited exceptions enumerated in 39-A M.R.S.A. § 203.
The AWW is calculated as of the date of injury, not the date of disability. In an occupational disease case, the date of injury is the date of last exposure for purposes of calculating benefits. The Average Weekly Wage, once calculated, never changes for a specific date of injury. Per 39-A M.R.S.A. § 102(4) the employee’s gross average weekly wages, earnings or salary (the “AWW”) must be calculated according to one of the following four rules, listed below in their order of priority:
METHOD A: For employment that lasts at least 200 full working days during the 52 weeks prior to the injury. The average weekly wage (“AWW”) is the amount the employee was earning for a full work week in the job at the time of injury.
METHOD B: For employment of less than 200 days’ duration or for piece work or other jobs in which wages during the prior 52 weeks generally varied from week to week. The AWW is the average of the gross weekly earnings during the preceding 52 weeks for any week in which the employee worked, excluding the week of hire and the last week, if either of these would tend to lower the average. The average is obtained by dividing the total earnings by the number of weeks worked. In the latter case, the variation from week to week must be due to some inherent aspect of the job.
METHOD C: Seasonal workers. If the employee works in a seasonal job (i.e., snow plowing, ski area, etc.) and customarily works 26 weeks or less in that job or for any other employer in other seasonal employment during a calendar year, the gross earnings are divided by 52, rather than by the number of weeks worked, to obtain the AWW. In other words, if an employee worked at several seasonal jobs during the calendar year, each one is considered separately for purposes of the 26 week threshold and each AWW is calculated separately before adding them together to calculate the total AWW.
METHOD D: Alternative Method of Determining Average Weekly Wage. If none of the three foregoing methods can be fairly applied to the employee’s circumstances, then the Board may be requested to determine the AWW by considering the employee’s previous earnings and those of other employees in the same or most similar employment in the same or a neighboring locality, using so-called “comparable wage statements.” An employer seeking to use this method has the burden of proof, and that burden requires that the employer furnish at least two comparable employee wage statements on the standard Wage Statement, Form WCB-2, with accompanying testimonial evidence demonstrating that the employees are “comparable.”
Concurrent wages are earnings from a second job in which the employee was regularly employed in any week concurrently with the job at which the injury occurred. They are included in calculating the AWW, if the employee was concurrently employed at the time of the injury. The law places the burden on the employee to obtain that wage information, however. The concurrent AWW is usually calculated separately, using an appropriate method, and then added to the AWW from the employment in which the injury occurred.
Per 39-A M.R.S.A. § 102(4)(H), Fringe Benefits are Excluded from the AWW if those Benefits are Continuing. A fringe benefit is “anything of value to an employee and dependents which is not included in the average weekly wage and which is an earned benefit.” Social Security, special expenses, and company cars are not fringe benefits. See Maine WCB Rules c. 1, § 5 for a complete list. The employee is not entitled to have fringe benefits included in the AWW if the employee is continuing to receive the fringe benefits.
However, Fringe Benefits are considered in calculating the AWW if not continuing. Fringe benefits are not included in the AWW if the fringe benefit continues during the disability, but as soon as the employer discontinues the fringe benefit, the employee is entitled to have them considered in calculating the AWW, subject to the limitations below. 39-A M.R.S.A. § 102(4)(H). Within seven days of the date when fringe benefits cease, the employer must notify the insurer and the employee by filing an amended Form WCB-2 Wage Statement. The insurer or self-insured employer must file the amended Wage Statement with the Board if it results in increased compensation to the employee. WCB Rules c. 1, § 5.2.B.
Definition and Limitation of Fringe Benefits. The employer’s cost of any fringe benefit that does not continue during the period of disability is determined as of the date of injury and is included in calculating the employee’s AWW, but only to the extent that the resulting weekly benefit does not exceed a maximum of 2/3 of the State AWW at the time of injury. 39-A M.R.S.A. § 102(4)(H). (This limitation does not apply in death cases.) A listing of items included and excluded from the definition of fringe benefits is found in Rules c. 1, § 5.1.A-B. If application of the coordination of benefits provisions at section 221(3) reduces the weekly benefit below the 2/3 SAWW level, the fringe benefits are NOT added back in. Ricci v. Mercy Hospital, 2002 ME 173.
Valuing Self-Funded Fringe Benefits. For those employers which self-fund health and accident coverage, the value of that coverage shall be equal to the cost to the employee for maintaining such coverage pursuant to COBRA. Rules c.1, § 5.1.
Forms to be filed regarding wages:
Wage Statement (WCB-2). A wage statement must be filed within 30 days of the initial payment on any lost-time claim, and a copy must go to the Employee. 39-A M.R.S.A. § 303. Failure to file a wage statement within 30 days may result in a penalty. No wage statement is required for a “medical only” claim. WCB Rules c. 8, § 10. On June 15, 2011, Executive Director Paul Sighinolfi of the WCB directed that all Wage Statements must be complete upon arrival at the Board or they will not be processed. This includes completion of boxes 20-22 even if a copy of the employee’s wages is attached. Further, for those employers with bi-weekly, bi-monthly or monthly payrolls, the expectation is that these amounts will be broken down and recorded weekly. The Board’s Wage Statement is available in both Word and PDF versions at: http://www.maine.gov/wcb/departments/board.htm
Within seven days of the date when any fringe benefits cease, the employer must notify the insurer and the employee by filing an amended Form WCB-2 Wage Statement. The insurer or self-insured employer must file the amended Wage Statement with the Board if it results in increased compensation to the employee. WCB Rules c. 1, § 5.2.B.
Schedule of Dependents and Filing Status Statement (WCB-2A):
For injuries from 1/1/93 to 12/31/12, this form shows the employee’s number of dependents and tax filing status at the time of the injury, essential information for calculating the compensation rate, which is based on 80% of the after-tax average weekly wage. It is due at the same time as the wage statement, and like the wage statement, is not required for medical-only claims. WCB Rules c. 8, § 10
The waiting period for weekly benefits is seven (7) days of incapacity. No payments are due for the first seven days, unless incapacity continues for more than 14 days. Then payments are required beginning from the first day of incapacity. 39-A M.R.S.A. § 204(2). If the Employee is paid 1/2 day or more wages on the day of the injury, then that day is not counted as a day of incapacity. WCB Rules c. 8, § 3. Keep in mind that the waiting period pertains only to the obligation to make payments. The obligation to file a First Report of Injury with the Board is triggered by even one day of lost time.
Benefits for total incapacity under section are available only while the employee is incapacitated for any type of work. Note, however, that 39-A M.R.S.A. § 212 governs total benefits only with regard to injuries on or after January 1, 1993. Total benefits for earlier dates of injury continue to be governed by prior versions of this statute. See 39 M.R.S.A. §§ 54, 54-A, or 54-B.
A partial work capacity for work that is available in the labor market where the employee resides, even for only part-time work, will disqualify the employee from receiving benefits under this section. Also, if an employee is able to perform full-time work anywhere in the Maine labor market (regardless of whether such work is actually available), the employee is not entitled to benefits under this section. However, the employee may be entitled to benefits for up to 100% partial incapacity under section 213 if a good-faith work search shows that suitable work was not available in the labor market where the employee resides, due to the effects of the injury.
On the other hand, if there is no suitable work available in the employee’s local labor market and the employee is unable to perform full-time work anywhere in the State labor market, the employee is entitled to benefits for total incapacity under section 212. Adams v. Mt. Blue Health Center, 1999 ME 105.
For dates of injury between January 1, 1993 and December 31, 2012, the weekly compensation rate was calculated on the basis of 80% of the after-tax average weekly wage, using as the number of exemptions the employee’s dependents plus the employee. Each December 1st, the Board published “Weekly Benefit Tables” to be used to calculate the amount of weekly benefits. In order to use these tables, one needs to know the employee’s gross average weekly wage (“AWW”), earnings, or salary; the employee’s tax filing status (single, married/joint return, single/head of household, or married/separate return; and the number of dependents other than the employee (the table automatically includes the employee in the calculation). The dollar amount on the table corresponding to these three variables is the employee’s rate of compensation for total incapacity.
For dates of injury after December 31, 2012 the weekly total compensation rate is 2/3 of the employee's gross average weekly wages, earnings or salary, but not more than the maximum benefit under section 211. The new law, 39-A M.R.S.A. § §212(1)-A does not change the provision that any employee who is able to perform full time ruminative work in the ordinary competitive labor market in the State, regardless of the availability of such work in and around the employee’s community, is not eligible for total incapacity benefits, but may be eligible for partial benefits under §213.
MAXIMUM BENEFIT provisions in 39-A M.R.S.A. § 211 apply only to dates of injury on or after 1993. Earlier dates of injury are governed by the law in effect as of the date of injury. See 39 M.R.S.A. §§ 53 53-A or 53-B. For injuries on and after January 1, 2013, the maximum benefit level is increased from 90% of the State average weekly wage, to 100% of the State average weekly wage. The maximum compensation benefit rate for injuries from January 1, 2013 through June 30, 2013 was therefore set at $717.09, and from July 1, 2013 through June 30, 2014 it is $728.63.
While there are no cost of living adjustments provided for in the current Act, the maximum benefit level is adjusted every July 1st and published by the WCB. An employee receiving the maximum benefit is entitled to the adjusted maximum as it is established annually.
The state AWW is published annually on July 1st in the “State Average Weekly Wage Notice,” along with the applicable maximum benefit (which depends upon the date of injury) and the inflation adjustment multiplier (for those dates of injury prior to 1/1/93 that require adjustment of benefits for inflation under some circumstances). All can be found on Maine Workers’ Compensation Board website at http://www.maine.gov/wcb/, along with the Maine statutes, rules, forms, and medical fee schedule.
Presumptive Total Incapacity. “Presumptive total incapacity” is provided for 800 weeks for certain specified losses, such as actual loss of both legs or permanent and complete paralysis of both legs. 39-A M.R.S.A. § 212(2). Benefits are paid for 800 weeks, even if the employee returns to work. After 800 weeks, the level of incapacity must be determined based upon the facts, and the employee has the burden of proof.
Limitations on Entitlement. With the exception of presumptive total incapacity benefits under section 212(2), the benefits for total incapacity are available only while incapacity is total, and they may be offset by the receipt of other benefits, such as unemployment, pension and social security benefits. See 39-A M.R.S.A. § 221.
An employee who has a partial work capacity is obligated to make a good-faith search for any suitable work in order to continue to be entitled to 100% “partial” benefits.
For dates of injury between January 1, 1993 and December 31, 2012, 39-A M.R.S.A. § 213 applies. For those injuries, partial benefits equal 80% of the difference between the employee’s After-Tax AWW before the injury and the After-Tax AWW that the employee “is able to earn” after the injury.
For injuries after December 31, 2012, the partial benefit equals 2/3 of the difference between the employee’s AWW and the employee’s post-injury earning capacity. 39-A M.R.S.A. § 213(B).
The Board has published instructions for calculating partial benefits where the employee has returned to work at less than his pre-injury average weekly wage.
The value of any fringe benefits provided to the employee in the new job is included in the employee’s post-injury wages to the same extent that fringe benefits costs are included in the employee’s AWW. Coulombe v. Anthem Blue Cross/Blue Shield of Maine, Inc., 2002 ME 163.
Duration of Benefits. The maximum duration of benefits (total and partial) at the time this law was enacted was 260 weeks. Since then, beginning in 1998, the cap on duration of benefits has been extended to 520 weeks by Board rule. An employee is entitled to benefits for the duration of the incapacity unless the employee’s permanent impairment is less than the permanent impairment threshold set by the Board. In individual cases of extreme financial hardship due to inability to return to gainful employment, the full Board may delegate to a hearing officer or a panel of three hearing officers the authority to extend the duration of benefits.
For injuries on or after January 1, 2013, partial compensation shall also be calculated using 2/3 of the difference between the AWW and an employee’s post-injury earnings subject to the maximum rates, per §211. An employee’s benefits are capped after he/she has received 520 weeks of compensation (whether total or partial). As before, the 520 week cap may be extended by the Board in cases involving extreme financial hardship, though orders extending benefits are now not subject to review more often than two years from the date of the “board order or request” allowing the hardship extension.
“Long Term” Partial Incapacity. Individuals whose permanent impairment exceeds 18% whole person may also qualify for an extension of the 520 week cap, to be paid at a fixed rate. Entitlement to benefits is to be determined based upon the facts as they exist at the expiration of 520 weeks of benefits, and requires that:
1) The employee is working and his/her earnings (as measured by average weekly earnings over the most recent 26 week period) are 65% or less than his/her pre-injury AWW;
2) his/her actual earnings are commensurate with the employee’s earning capacity, including consideration of his/her physical and psychological work capacity as determined by a §312 medical examiner, and
3) he/she has earnings from employment for a period of not less than 12 months within a 24 month period prior to the expiration of the 520 week durational cap.
If the employee does not qualify for these extended benefits at the end of the initial 520-week period, then he/she can never get them. Additionally, once an employee’s post-injury earnings (as measured by the most recent 26 week period) exceed the pre-injury AWW, the employee’s entitlement to partial incapacity benefits terminates permanently.
While there is no provision under Maine law for awarding additional benefits for permanent impairment for injuries after 1993, the assessment of permanent impairment continues be an important issue because the percent of whole body permanent impairment governs the duration of partial benefits under 39-A M.R.S.A. § 213. Also, for statistical purposes, the WC Board requires that all lump sum settlements be accompanied by an assessment of permanent impairment. With regard to injuries prior to 1/1/93, the law in effect at the time of the injury continues to govern the employee’s entitlement to an award for permanent impairment. WCB Rules c. 7, § 5.
The permanent impairment threshold in the 1992 Act was 15%, but it has been adjusted a number of times since then, as outlined in the chart below. If the employee’s permanent impairment is greater than the threshold that was effective as of the date of injury, benefits must be paid for the duration of the disability.
|Injury Date||Permanent Impairment Threshold|
|1/1/06 – 12/31/12||12.0%|
|1/1/13 -||18% with conditions for receipt of ongoing benefits after the initial 520 weeks|
Definition of Permanent Impairment for Purposes of Section 213 (1). Section 213(1-A) provides as follows: For injuries between 1/1/93 and 1/1/2002, “permanent impairment” includes only the impairment resulting from the work injury at issue and any pre-existing physical condition or injury that is aggravated or accelerated by the work injury at issue in the determination. For injuries on or after 1/1/2002, “permanent impairment” includes the work injury at issue, any pre-existing physical condition or injury that is aggravated or accelerated by the work injury at issue, and any prior work injury for which a First Report was completed and for which the employee received a worker’s compensation benefit, which has not been denied by the Board and that combines with the work injury at issue to contribute to the employee’s incapacity, except that a prior work injury that has been settled with a finding of permanent impairment equal to or in excess of the applicable threshold may not be included.
Impairment Rating. The current law does not provide for any award of benefits for “permanent impairment,” as defined under prior law. Former sections 56, 56-A and 56-B, governing Permanent Impairment, were repealed in 1992. However, Rule c.1, § 4.1 provides that the right to receipt of benefits for permanent impairment for dates of injury prior to 1993 shall be governed by the law in effect at the time of the injury.
The phrase permanent impairment means “any anatomic or functional abnormality or loss existing after the date of maximum medical improvement that results from the injury.” 39-A M.R.S.A. § 102(16).
Maximum medical improvement (MMI) means “the date after which further recovery and further restoration of function can no longer be reasonably anticipated, based upon reasonable medical probability.” 39-A M.R.S.A. § 102(15). Once the date of MMI has been established, it cannot later be amended, even if the employee’s condition changes. Williams v. E.S. Boulos Co., 2000 ME 40.
Use of 4th Edition, AMA Guides to Permanent Impairment required. The Rules require use of the 4th Edition of the AMA Guides to the Evaluation of Permanent Impairment to determine permanent impairment for all dates of injury. See WCB Rules c. 7, § 6.
“Stacking” of permanent impairment percentages. In 2002, Maine’s Supreme Court decided that when determining an injured employee’s permanent impairment rating for purposes of determining entitlement to benefits under section 213(1), it is permissible to add up, or “stack” that individual’s permanent impairments relating to any cause. Thus, an employee with a series of non-work related injuries and work related injuries (even to different body parts) could combine all of the various impairment ratings to determine whether his overall level of impairment met the section 213(1) permanent impairment threshold. Kotch v. American Protective Services, 2002 ME 19. The Legislature responded rapidly to overrule the Kotch decision, and enacted Section 213(1-A), which provides:
For injuries on or after 1/1/02, “permanent impairment” includes the work injury at issue, any pre-existing physical condition or injury that is aggravated or accelerated by the work injury at issue, and any prior work injury for which a First Report was completed and for which the employee received a worker’s compensation benefit, which has not been denied by the Board and that combines with the work injury at issue to contribute to the employee’s incapacity, except that a prior work injury that has been settled with a finding of permanent impairment equal to or in excess of the applicable threshold may not be included.
Permanent Impairment for Psychological Component of Injuries. The psychological sequelae of a work-related injury should be considered when determining the permanent impairment level. In Harvey v. H.P. Price, 2008 ME 161, the Law Court decided that even though the 4th Edition of the AMA Guides to the Evaluation Permanent Impairment does not establish numerical percentages for non-neurologic mental impairments, it does give a sufficient method for evaluating mental impairment that a physician can use to translate observed impairments into a numerical scale.
In order to be entitled to vocational rehabilitation, the employee must be “unable to perform work for which the employee has previous training or experience,” the requested rehab services must be “reasonably necessary to restore the employee to suitable employment,” and the proposed plan must be found to be “likely to return the employee to suitable employment at a reasonable cost.” 39-A M.R.S.A. § 217.
Either party can request an evaluation of the employee for employment rehabilitation by sending a form application to the Office of Medical/rehabilitation Services at the WCB. Upon application and “an opportunity to be heard,” WCB may refer the employee for evaluation of suitability for rehabilitation by a Board-approved facility. 39-A M.R.S.A. § 217(1). The “opportunity to be heard” with regard to this issue is to be determined on the basis of “written submissions of the parties.”WCB Rule c. 6 § 1(2). The “evaluation” process also includes the preparation of a proposed plan, if the rehabilitation provider determines that the employee is suitable for rehabilitation. 39-A M.R.S.A. § 217(2).
If the WCB finds that the proposed plan meets the above requirements, it may order it implemented, even over the employer’s objections. However, the Board cannot order the employer to pay for the costs of the plan at that point. However, if the employee completes the plan successfully and then returns to suitable employment, the refusing employer may be ordered to reimburse 180% of the cost to the Employment Rehabilitation Fund. 39-A M.R.S.A. § 355(7). Rehabilitation must not extend more than 52 weeks, except by special order of the WCB, which may extend rehabilitation an additional 52 weeks. The WCB may also order payment of transportation and necessary expenses to the Employee. 39-A M.R.S.A. § 217(4).
If the employee refuses rehabilitation, the WCB shall order a loss or reduction of benefits (other than specific loss benefits under 39-A M.R.S.A. § 212(3) for the duration of the refusal. 39-A M.R.S.A. § 217(6). If an employee is participating in a rehabilitation plan ordered pursuant tosection 217(2), there is a presumption that work is unavailable to the employee for as long as the employee continues to participate in the employment rehabilitation. 39-A M.R.S.A. § 217(8).
The provisions of 39-A M.R.S.A. § 214 apply only to dates of injury on or after 1/1/93.
Equal or Higher Paying Job. If the employee returns to work in a job that pays as much or more than the AWW at the time of the injury, the employee is not entitled to any wage loss benefits for the duration of the job. 39-A M.R.S.A. § 214(1)(C).
Lower Paying Job. If the employee returns to work at a lower paying job, the employee is entitled to partial incapacity benefits as described in section 214(1)(B). The method of calculation approved by the Board requires that the compensation rate for total incapacity be compared to the compensation rate for the post-injury average gross earnings, and the difference between the two is the employee’s weekly benefit for partial incapacity. WCB Rule c. 8, § 8. An Employee with a full-time work capacity who chooses to work only part-time is not entitled to lost time benefits to compensate for the reduced earnings due to this choice. Tucker v. Assoc. Grocers of Maine, 2008 ME 167.
Job Duration Less Than 100 Weeks. If the employee loses the job after working fewer than 100 weeks, through no fault of the employee, then the employee is entitled to benefits based upon 80% of the after-tax AWW for the job at the time of the injury. 39-A M.R.S.A. § 214(1)(E).
Job Duration More Than 100 Weeks. If the employee loses the job through no fault of the employee after working more than 100 weeks, then, after exhaustion of unemployment benefits, if the employee has not established “a new wage earning capacity,” the employee is entitled to benefits based upon 80% of the AWW at the time of the injury. 39-A M.R.S.A. § 214(1)(D)(1).
Benefits Based Upon New Wage Earning Capacity. If the employee has established a “new wage earning capacity,” the employee is entitled only to benefits based upon the difference between the AWW at the time of the injury and the “normal and customary wages paid to those persons performing the same or similar employment as the employee at the time of termination.” 39-A M.R.S.A. § 214(1)(D)(2).
New Wage Earning Capacity Presumption. There is a presumption of establishment of a “new wage earning capacity” when any post-injury employment totals 250 weeks or more. 39-A M.R.S.A. § 214(1)(D)(2).
Worker Reinstatement Rights. For up to one year after the date of injury, or three years if the employer has more than 200 employees, the injured employee is entitled to reinstatement upon request to the employee’s former position or, if that job is not available or not suitable, to some other available and suitable position. However, the employer is not obligated to create a job or to offer a supervisory or confidential position or any position for which the employee is not qualified. If the employee is qualified, the employee is not required to compete with other qualified applicants for the job. The injured employee has priority under the Act. Also, existence of a collective bargaining agreement does not affect the employee’s rights. 39-A M.R.S.A. § 218
Maine’s Supreme Court has stated that “in the absence of a petition requesting reinstatement, employers are encouraged by the Act to accommodate work-related injuries and return employees to work, but are not required to do so.” Jandreau v. Shaw’s Supermarkets, 2003 ME 134. Once an employee has filed a Petition for Reinstatement, however, the employer must facilitate reinstatement by making “reasonable accommodations” for the employee’s physical condition. This concept is analogous to provisions in the ADA and the Maine Human Rights Act. The reasonableness of the requested accommodation turns upon the employer’s ability to make the accommodation, including considerations of size, number of employees, nature of operations, cost, and other factors. Noncompliance by the employer results in forfeiture of all rights to reduce or terminate benefits for the duration of the failure to offer reinstatement or until the employee accepts other work.
This term in not applicable to Maine, which does consider earning capacity in the evaluation of benefit awards.
“Reasonable employment” means work within the employee’s capacity that poses no threat to health and safety and which is a reasonable distance from the employee’s “residence.” Whether the “residence” is the one at the time of the injury or the one at the time of the offer depends upon the circumstances. Thompson v. Claw Island Foods, Inc., 1998 ME 101.
If any employer has made a “bona fide offer of reasonable employment” and if the employee’s refusal was not for “good and reasonable cause,” the employer making payments may reduce or discontinue benefits. This defense is based upon section 39-A M.R.S.A. 214(1)(A), which is applicable only to dates of injury after 1993. Such a refusal is grounds to discontinue voluntary payment of benefits, using a Certificate of Discontinuance with 21-day notice.
If the employee is receiving benefits under an agreement or Board order or decree, such a refusal is a ground for a Petition for Forfeiture.
An employee’s refusal to accept an offer of reinstatement made in the context of a pending employee Petition for Reinstatement constitutes a voluntary withdrawal from the work force, and the employee is “no longer entitled to any wage loss benefits” for the duration of the refusal. 39-A M.R.S.A. § 218(5). These provisions apply to any date of injury, but only when there is an employee Petition for Reinstatement pending.
Resignation from a job where an employer is accommodating an employee’s restrictions is also considered to be a “rejection” of a job offer since an existing employment relationship implicitly constitutes an ongoing “offer” of employment. Holt v. S.A.D. No. 6, 2001 ME 146.
Per 39-A M.R.S.A. § 212(2), the loss of legs, arms or specific combinations thereof, paralysis, insanity or the “permanent and total loss of industrial use of legs, arms or certain combinations can result in a presumptive total incapacity for 800 weeks, with the question of disability subject to challenge thereafter.
Specific Loss Benefits. “Specific loss benefits” are provided for certain other actual losses, such as loss of a thumb (65 weeks). 39-A M.R.S.A. § 212(3). The legislative Statement of Fact says “the employee is entitled to receive the listed number of weeks of benefits for the specified amputation, regardless of any actual loss in wages. Specific loss benefits are not paid in addition to wage loss benefits. They are simply paid in lieu of wage loss benefits for a specified period. In the event of a subsequent claim for specific loss benefits, the employer may offset payments for those specific loss benefits by weekly wage replacement benefits previously paid for the same injury. For cases after January 1, 2013, the scheduled specific loss benefits are based on the calculation of the total compensation rate, using 2/3 of the AWW, subject to the max noted in 39-A M.R.S.A. § 211.
The Maine WC Act no longer provides benefits for disfigurement or scarring.
The total and permanent loss of sight of both eyes will result in a presumptive total incapacity for 800 weeks, per 39-A M.R.S.A. § 212(2). Thereafter, the question of disability is a question of fact.
Hearing loss is compensable under 39-A M.R.S.A § 612. The loss must be due to prolonged exposure to injurious noise in employment. The measurement of hearing loss must be performed as described in§ 612(5), and is subject to deductions by age. The claim may not be made until the employee has been separated from the occupational noise for at least 30 days.
Failure to secure payment of workers’ compensation benefits carries a criminal penalty and a civil penalty of up to $10,000.00. 39-A M.R.S.A. § 324(3). Under 39-A M.R.S.A. § (3)(C), LCCs, partnerships, professional corporations, or legal entities recognized by the state as employers are subject to liability. For employers in the construction industry who fail to obtain coverage, hearing officers have authority to issue stop work orders. See 39-A M.R.S.A. §105(A)(5).
Penalties for Failure to Make Timely Payment: The Maine WC Act contains penalty provisions for non-payment or delay in payment pursuant to an approved agreement, order or decision of the Board. The WCB may assess a forfeiture of up to $200 per day, $50 of which must be paid to the employee. 39-A M.R.S.A. § 324. Payment must be made within 10 days of notice of an approved agreement or after any order or decision. As a practical matter, the Board appears to have unilaterally expanded these provisions to include any delay in payment or adjustment of ongoing benefits under an established payment scheme. Decisions on these matters have been delegated by the Board to the Abuse Investigation Unit for amounts up to $5,000.00. WCB Rules c. 15, § 6.1. Note that these penalties under section §324 do not apply to a failure to pay or delay in payment of initial benefits or restoration of benefits under section §205. Those circumstances are governed by section §205(3).
Failure to pay an undisputed medical bill within 30 days after the carrier receives notice (via certified mail) of non-payment from the provider or from the employee if the employee paid the bill, may result in a penalty of $50 per day or the amount of the bill, whichever is less, up to a maximum of $1500, payable to the provider or to the employee if the employee paid the bill. 39-A M.R.S.A. § 205(4).
Penalties Imposed at Mediation: Per 39-A M.R.S.A. § 313, the parties must cooperate with the mediator and produce requested materials. Otherwise, costs and attorney’s fees may be assessed against the offending party or proceedings may be suspended by the Deputy Director of Dispute Resolution. A hearing may be provided if the Deputy Director believes it is warranted. The “employer” or the “representative of the employee, employer, or insurance carrier” must also be familiar with the claim and have “authority to make decisions regarding the claim.” Penalties of up to $100 may be assessed against the employer or a representative of a party by the Assistant Director of Mediation Services. The same penalty can be assessed for failure to attend mediation.
General Penalties: The Board retains general authority to punish those who do not comply with its Rules or the requirements of the Act. 39-A M.R.S.A. §§ 359 & 360. The Board may require repayment of any benefits obtained as a result of a willful violation, fraud or misrepresentation (including interest at 10%) and may assess a civil penalty of up to $1000 against individuals and up to $10,000 against corporations. In addition, section 359(2) allows the Board to impose a penalty up to $25,000 after finding that an employer, insurer, or third party administrator has engaged in a pattern of questionable claims handling techniques or repeated unreasonably contested claims.
When weekly payments are made pursuant to a Decree, interest must be paid at 10% per annum from the date on which each payment was due, until paid. 39-A M.R.S.A. § 205(6). After hearing, any benefits found to be wrongfully withheld must be paid within ten days of the WCB order together with interest at 6% per annum, per 39-A M.R.S.A. § 205(9)(F). Prejudgment interest is due on wage loss compensation benefits paid pursuant to a Consent Decree or a mediation agreement, even if the agreement of the parties is silent on the subject of interest. Jasch v. The Anchorage Inn, 2002 ME 106. If the Decree finds that the employer’s refusal to pay the benefits at issue was not based on any rational grounds developed between the claim and the formal hearing, then the Decree may award interest to the employee at a rate of 25% per annum. 39-A M.R.S.A. § 318.
The Maine Supreme Court has held that interest is not due on a penalty payment pursuant to Rule 1.1 (the 14-Day Rule), as it does not constitute “compensation … paid pursuant to an award.” Joyce v. Commercial Welding, 2012 ME 62. Similarly, attorney’s fees are not considered to be “benefits” or “compensation” under the Act, so no interest accrues on an award of attorney’s fees.
Costs and fees incurred by an employee’s attorney are addressed in 39-A M.R.S.A. § 205 which is discussed below.
For dates of injury after January 1, 1993, the employer is generally not responsible for payment of the employee’s attorney’s fees. Each party is responsible for their own fees and expenses, with a few limited exceptions, such as for a claim of discrimination. The employee’s attorney fees are paid by the employee out of the “benefits accrued” or from the lump sum settlement. 39-A M.R.S.A. § 205. Note that the employee may designate his attorney’s office as the address where payment of benefits is to be sent.WCB Rules c. 10, § 1; 39-A M.R.S.A. § 205(1). No attorney is entitled to collect duplicative payment of attorney’s fees for the same services. Attorney’s fees for dates of injury on or after 1993 shall not exceed 30% of the benefits accrued (after reasonable expenses), nor be based upon a benefit amount greater than 2/3 of the state AWW.
The term “benefits accrued” includes past due benefits and payments without prejudice obtained or retained through attorney services. The Board does not have the authority to order doctors to pay a portion of their fees to employee’s attorneys when benefits are obtained through a Petition for Payment. In the event of a dispute between the employee and the attorney, the Rules provide a procedure for resolution. WCB Rules c. 10, § 2
When the services have been rendered on a case involving multiple injury dates, some of which occurred prior to January 1, 1993, attorney’s fees must be allocated in proportion to
(1) the role each injury played in the litigation,
(2) the extent to which each party precipitated the need for litigation, and
(3) the ultimate success of the petitions alleging a particular date of injury.
Once allocation is made, the employer liable on any injuries prior to 1993 must pay attorney’s fees in accordance with the law applicable at the time of the injury (i.e.39 M.R.S.A. § 110). Disputes concerning such allocations are resolved by motion pursuant to the procedures in section 2. WCB Rules c.10, §§ 2 and 3
Fees For Lump Sum Settlement. For lump sum settlements on dates of injuries on or after 1/1/93, the attorney’s fee comes out of the amount paid to the employee, not to exceed 10% of the first $50,000, 9% of the first $10,000 over $50,000, 8% of the next, 7% of the next, 6% of the next, and 5% of any amount over $90,000. In the event substantial services were performed prior to settlement, the attorney is entitled to up to 30% of the benefits accrued plus the percentage of the settlement amount.
These attorney’s fee provisions apply only to dates of injury after 12/31/92. For earlier dates of injury, the prior law still governs. 39 M.R.S.A. § 110. Under section 110 (as amended effective 1/1/84), employee’s counsel are denied attorney’s fees for services rendered prior to the “informal conference” unless the employer was similarly represented. For purposes of the present day, the legislature intended to substitute “mediation” for the “informal conference” procedure and deny fees incurred prior to mediation unless the employer was represented by counsel. See 39 M.R.S.A. § 110(1984) and 39-A M.R.S.A. § 325(5).
Benefit Based on Whole Dependency. For injuries between 1/1/93 and 12/31/12, for persons wholly dependent, the benefit is 80% of the deceased employee’s after-tax AWW for a maximum period of 500 weeks from the date of death or until the dependent reaches 18, whichever comes later. For dates of injury after 12/31/12, the benefit is 2/3 of the employee’s AWW, but not0 more than the maximum benefit under 39-A M.R.S.A. § 211.
Benefit Based on Partial Dependency.: For a partially dependent person, the benefit is pro-rata, based on the proportionate share of the employee’s contribution to the support of the dependent. This calculation is described in 39-A M.R.S.A. § 215.
Remarriage. Payments cease if a spouse remarries, but will continue to surviving children in an amount determined by the WCB.
Mental/Physical Incapacity.: Duration of payments is extended beyond 500 weeks for children who are mentally or physically incapacitated from earning.
Death Caused By Injury.: If death was proximately caused by the injury, dependents receive the full amount they would have been entitled to receive if the injury had resulted in immediate death. For a child to be considered a “dependent,” the child must have been totally or partially dependent on the employee at the time of the injury. Cribben v. Central Maine Home Improvement, 2000 ME 124.
Death From Causes Unrelated to Injury. All liability for weekly benefits ceases. File a Discontinuance Form WCB-4 and check the “other” box and add: “unrelated death-deceased [date]”. Attach a newspaper article, death certificate, or other documentation, if available.
Survival of Pending Claims. If death results from non-work-related causes, and a claim for benefits is pending, the claim may be pursued by the deceased’s personal representative, and benefits will be payable to beneficiaries up to the date of death.
Per 39-A M.R.S.A. § 216, there is a $4000 maximum burial expense, payable to person responsible for those expenses as well as a $3000 maximum for incidental expenses, payable to the estate. Note that 39-A M.R.S.A. § 215 governs only dates of injury on or after 1993. For earlier dates of injury the law applicable as of the date of injury applies. See 39 M.R.S.A. §§ 58 or 58-A.
Per 39-A M.R.S.A. § 206 the employer is liable for related medical costs to the extent that the services or aids are adequate and necessary and the costs are reasonable. 39-A M.R.S.A. § 206(7). The “reasonableness” of costs is governed by the Board’s published fee schedules which are presumptively reasonable for all procedures covered by CPT codes. Chapter 5 of the WCB Rules specifically pertains to medical fees, services and disputes.
Otherwise, reasonableness and necessity is subject to the usual requirements of proof in the event of a dispute. Generic drugs are to be used whenever medically acceptable. 39-A M.R.S.A. § 206(11). A provider is not entitled to receive more than its “usual and customary charge” as indicated on its price list or the maximum fee in the fee schedule, whichever is less. Fernald v. Shaw’s Supermarkets, 2008 ME 81. The injured employee is not liable for payment of any health care services for treatment of a work-related injury or disease, so a provider may only charge the employee directly for unrelated services.WCB Rules c. 5, § 1.06(5).
During the first 10 days after the injury, the employer may select the treating physician. Thereafter, the employee can choose, but the employer has the right to object by petition and show cause why treatment should not continue. The WCB may order that the employee is liable for the expenses of the treatment. 39-A M.R.S.A. §§ 206(1) and (2). The employee may change doctors only once without the approval of the employer, except where a specialist is necessary. The same rule applies to changing specialists within the same medical specialty area. 39-A M.R.S.A. § 206(4).
Treating doctors must provide a diagnostic report within 5 business days of initial exam, every 30 days thereafter, and a final report within 5 days of the conclusion of treatment. 39-A M.R.S.A. § 208(2). The employer may request additional information, and the doctor must respond within 10 business days. 39-A M.R.S.A. § 208(2). Maximum fees for reports and photocopies of records are governed by Rules c. 5, § 11. A provider may not charge more than $30 per each 10 minutes for preparation of a narrative report. Copy charges may not exceed $10 for the first page and 35 cents for each additional page. WCB Rules c. 5, § 11. Limitations on fees all require that the undisputed amount be paid and that the provider be given notice of the disputed amount and reason.
While no certificate of authorization is required by the WC statute in order for an employer or insurer to obtain medical records of examination or treatment for the injury, as a practical matter, it is easier to request an employee to produce a medical authorization. The WCB has created a “Limited Certificate Authorizing Written Release of Medical/Health Care Information Only” which may be used to obtain medical records, including those prior to the date of injury which pertain to treatment of the same or related body parts or medical problems in appropriate cases. A copy of this form is found in the WCB Rules c. 12, Appendix III.
Medical or counseling records related to psychological matters, substance abuse, or sexually transmitted diseases are subject to an additional rule concerning their confidentiality. If such records are relevant to a claim, the employer may obtain such records only as agreed upon by the parties. In all other cases, specific information must be requested by written motion showing need for the information, and the hearing officer may authorize release subject to appropriate terms and conditions providing reasonable protection of confidentiality. WCB Rules c. 12, § 18.2.
If requests for payment are not submitted on the forms prescribed by the Bureau of Insurance in 24-A M.R.S.A. § 2753, payment may be withheld from the provider upon notice. Currently the prescribed forms are the federal forms mandated by HCFA, the UB 82 and the UB 92. 39-A M.R.S.A. §206(15) and Rules c. 5, § 1.06 and 1.10. The parties are required to provide each other with copies of all statements or reports relating to the employee’s examination or treatment for the injury, within 7 days of receipt. 39-A M.R.S.A. § 206(9).
The insurer must make a reasonable investigation to determine if a service is subject to the maximum fee schedule and must give the provider written notice of an adjustment to the requested fee and an explanation of the adjustment at the time of payment of the undisputed amount.WCB Rules c. 5, § 1.06(3). However, no notice or explanation is required when the only adjustment made is a reduction of the requested fee to the fee schedule maximum.WCB Rules c. 5, § 1.06(3). If MaineCare (Maine’s Medicaid program) has paid for treatment of an injury that is deemed to be work-related, 100% of those expenses must be reimbursed by the employer or the insurer. 39-A M.R.S.A. § 209(4). Travel expenses incurred by the employee to obtain medical treatment are reimbursable.
Medical bills may be paid voluntarily, without prejudicing the right to dispute other aspects of the claim. While the WCB Rules do not require filing a Memorandum of Payment (“MOP”) on a “med only” claim, a Notice of Controversy (“NOC” form WCB-4) is required to dispute a claim for medical expenses. Payment of a medical bill is not an admission of the reasonableness of subsequent bills. This is true even if the claim has been accepted or established by an agreement or Board decision. WCB Rules c. 5 § 7.3. However, payment of medical bills by the employer or insurer will extend the statute of limitations to 6 years from the date of the last payment.
If you wish to dispute a claim for medical expenses and a First Report has yet been filed with the WCB, then one must attach a copy of the First Report to the NOC when you file it. WCB Rules c. 8 § 13. Also, the employer need file only one NOC to dispute all present and future medical bills until that NOC is resolved by Board order. If there is already a NOC pending on the entire claim for compensation, the employer is not required to file another NOC to contest medical expenses. WCB Rules c. 8, § 2. Filing the NOC will trigger a mediation of the dispute.
One must pay any undisputed amount of the bill, pursuant to the Medical Fee Schedule, and notify the medical provider of the dispute at the time of payment. (You can use a copy of the NOC.) The provider or the employee or other interested party can then file a Petition for Payment of Medical and Related Services, Form WCB-190 or 190A. WCB Rules c. 5, § 11.
The WCB Rules also set the maximum fees for copies, reports, and for physician preparation and appearance at depositions and hearings. The maximum fee for copies is $10 for the first page and 35 cents per page thereafter. For narrative reports, the maximum fee is $30 per 10 minutes, including the Practitioner’s Report (Form M-1) required by 39-A M.R.S.A. § 208.
Under certain circumstances, treatment at an employer’s in-house first aid or occupational health clinic can constitute a payment and, thus, extend the statute of limitations. The employee must treat at least six times during a calendar year, however, and the employer must be aware that the treatment is for a work-related medical condition.
As noted above, the failure to pay an undisputed medical bill within 30 days after the carrier receives notice (via certified mail) of non-payment from the provider or from the employee if the employee paid the bill, may result in a penalty of $50 per day or the amount of the bill, whichever is less, up to a maximum of $1500, payable to the provider or to the employee if the employee paid the bill. 39-A M.R.S.A. § 205(4).
Medical Utilization Review: The appropriateness of treatment and charges, including the level, extent, and duration of services, may be reviewed by a certified insurance carrier or self-insured employer or an entity hired to perform such reviews, according to a system established by WCB Rules c. 7 The review may be prospective, concurrent, or retrospective. The entity performing the review must be certified by the WCB, however, which requires accreditation by the Utilization Review Accreditation Commission, following a procedure set forth in Rules. Conditional certification is available. WCB Rules c. 7, § 1.
Maine’s Supreme Court interpreted the provisions which now appear in 39-A M.R.S.A. § 207, namely that an employee forfeits the right to compensation by refusing medical treatment which an employer is required to provide. It ruled that a claimant's refusal to submit to a major operation was reasonable unless the prospects for failure and the risk to health were minimal. Gordon v. Maine Reduction Co., 358 A.2d 544 (Me. 1976)
1. Medical Examinations: As long as the employee is treating with a doctor of his own choice, the employee must submit to an exam by a doctor of the employer’s choosing. The examiner must have an active medical practice or have hospital privileges equivalent to “active clinical” privileges, and must be Board certified. The examiner must inform the employee of the purpose and scope of the exam, identify all documents and communications that the examiner has had in preparation for the examination, and must furnish a copy of the report to the employee (and to his doctor, if requested) simultaneously with the copy furnished to the employer or insurer. 39-A M.R.S.A. § 207.
If the employee refuses or obstructs an examination or declines a service that the employer is required to provide by law (such as a recommended medical treatment or surgical procedure), then the employee’s rights to compensation are forfeited “for the period of the infractions if the Board finds that there is adequate cause to do so.” 39-A M.R.S.A. § 207.
2. “Binding” Independent Medical Examination System. 39-A M.R.S.A. § 312. The Maine WC Board has established a list of official independent medical examiners, pursuant to section 312. The list is to consist of no more than 50 of “the most qualified” and “highly experienced and competent” providers in their fields in the treatment of work-related injuries. At the request of the parties or of a hearing officer, an examiner will be assigned to decide disputed medical and related issues in a case. If the list does not contain a qualified examiner, the Board may select one from outside the list. Also, the parties may agree upon a qualified physician outside the list. A section 312 examiner may not have had any prior involvement in the case, either as a treating physician or as an IME doctor for the employer. A section 312 examiner may be disqualified if the examiner has substantial connections either to the insurance industry, labor unions, employers, etc. that he has not disclosed to the Deputy Director of Dispute Resolution. In addition, no doctor who, within the previous 52 weeks, has performed an examination of the employee at the request of an employer/insurer under section 207 may serve as a section 312 examiner. The current list of the official examiners can be found on the Board’s website.
If the parties agree to a particular section 312 examiner, they must notify the Office of Medical/Rehabilitation Services. If they cannot agree and if the issue is not resolved by mediation, then the requesting party must file a WCB Form M-2 Request for Independent Medical Examination with the same office, attaching a stipulated medical records exhibit and index of all medical records since the date of injury. Rules c. 4 § 2. (Mediation is not necessary before the request, if the Board has acted upon a request for provisional order.) The Office of Medical/Rehabilitation will assign an examiner from the Board’s list from a relevant specialty area (or select a qualified physician outside the list, if there is none on the list). Parties must notify the Board if any examiners are precluded from participation in the particular case. Only one section 312 medical examination per medical issue is allowed, unless there has been significant medical change. WCB Rules c. 4 § 2(5). After the examiner is appointed and the exam scheduled by theBoard, all communications between the examiner and the parties must be in writing and through the Office of Medical/Rehabilitation Services, and must be copied to opposing parties not later than seven days prior to the exam.WCB Rules c. 4, §§ 2-3.
The parties must gather the medical records or other pertinent information for review and submit them with the M-2 request form. The records must be in chronological order or chronological order by provider, with an index. A report is due from the examiner within 14 days of the exam. All subsequent medical evidence after the original submission must be exchanged by the parties and forwarded to the Office of Medical/Rehabilitation Services no later than 14 days prior to the hearing.
The examiner can issue “medical findings in any dispute relating to the medical condition of the claimant,” including but not limited to medical condition, treatment, improvement, degree of impairment, and ability to return to work. 39-A M.R.S.A. § 312(3). The issues and any questions that the parties want the examiner to address must be written on the Form M-2 Request. The hearing officer must adopt the medical findings of the examiner “unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings.” (But not including medical evidence not considered by the examiner). Dubois v. Madison Paper Co., 2002 ME 1. The hearing officer must state in writing the reason for not accepting the examiner’s findings. 39-A M.R.S.A. § 312(7).
The employer or insurance carrier has the right to demand that the employee pursue the claim against the third-party. If the employee fails to pursue a civil claim against the liable third-party within 30 days of the employer or insurer’s written demand, the employer or insurer has a right of subrogation, and may pursue the claim against the third-party. If the employer recovers more than its lien, the excess must be paid to the employee, less a pro rata share of expenses and attorney’s fees. If the employer’s claim is settled, the settlement and distribution must be approved by the court or, if not yet in suit, by the Board. 39-A M.R.S.A. § 107. That part of the recovery for an employee’s spouse’s loss of consortium is not subject to the workers’ compensation lien. There may also be a question whether voluntary payments without prejudice create a lien if the claim is never officially accepted.
Where the employer or insurance carrier is to be reimbursed under Section 107 as a result of the injured workers’ successful litigation of a liability case, the employer or insurance carrier is responsible for its proportionate share of the cost of collection, including a reasonable attorney’s fee. 39-A M.R.S.A. § 107.
The receipt of benefits under the Maine’s Motor Vehicle Financial Responsibility Law does not affect the right to receive workers’ compensation benefits.
A health insurance carrier’s subrogation right is limited to reimbursement pursuant to the Maine WC fee schedule. Pursuant to section 39-A M.R.S. § 209(2) of the Workers' Compensation Act, for services rendered to an injured employee, "[a] health facility or health care provider must be paid either its usual and customary charge for any health care services or the maximum charge established under the rules adopted (by the Board), whichever is less." Fernald v. Shaw's Supermarkets, Inc., 2008 ME 81.
Unemployment. Workers’ compensation benefits are reduced by the employee’s receipt of unemployment benefits, dollar-for-dollar. The WCB is supposed to notify the employer and the employee of the difference in benefits, and “upon receipt of this information” the employer can adjust the benefits accordingly. 39-A M.R.S.A. § 220. In practice, however, the insurer typically requests the information from the employee or employer.
Coordination of Benefits. There were no “set offs” for dates of injury prior to June 30, 1985. Coordination of benefits was first introduced effective June 30, 1985. 39 M.R.S.A.§ 62-B. However, 39-A M.R.S.A. § 221 applies only to dates of injury on or after 1993. Prior dates of injury from 6/30/85 to 12/31/92 are governed by the version 39 M.R.S.A. § 62-B in effect as of the date of injury.
Social security old-age benefits. The offset equals 50% of those benefits (not including cost of living adjustments). The offset does not apply to injuries after October 1, 1995 if the old-age benefits started before the injury, and the offset does not apply to spouse’s benefits for injuries after that date.
Self-insurance plans, wage continuation plans, and disability policies. The offset is the after-tax amount of benefits received from an employer-funded self-insurance plan, wage continuation plan, or disability policy payments, or payment pursuant to a disability feature in a policy providing multiple coverages, with the exception of (1) disability plans in existence as of 12/31/92 and (2) those entered into or renewed after 12/31/93 that contain provisions to exempt them from coordination of benefits. If the employee did contribute to the plan, then the offset is a proportional amount, based on the ratio between the employer contributions and the total premiums for the policy period involved, of the after-tax amount of payments received.
Maine’s Supreme Court has interpreted “wage continuation plan” to include sick leave pay as long as it consists of benefits other than “compensation” that are intended to replace earnings during a period of disability, whether or not the plan itself is in writing. The test of “compensation” appears to be whether the benefits may be “cashed out” or used for a purpose other than disability. Gendreau v. Tri-Community Recycling, 1998 ME 19.
Pension and retirement plans. The offset is the after-tax amount of benefits received under an employer-funded pension or retirement payments. If the employee did contribute to the plan, then the offset is a proportional amount of the after-tax amount of benefits received, based on the ratio of the employer’s contributions to the total contributions to the plan.
If the pension is received in a lump-sum, the offset is the monthly amount the employee would have received if he had not elected to take the lump-sum. Foley v. Verizon, 2007 ME 128.
Based on the plain meaning of section 211, an employee’s WC benefit must be reduced to the statutory maximum before the pension offset is taken. Hanson v. SD Warren, 2010 ME 51.
Profit-sharing plans. The offset is the proportional amount, based on the employer’s contributions to the total contributions made to a qualified Section 401 plan that provides for the payment of benefits only upon retirement, disability, death, or other separation of employment, to the extent that benefits are vested under the plan.
Exceptions. The above provisions for offset do not apply to benefits for presumptive total incapacity or for specific loss benefits under 39-A M.R.S.A. § 212(2) or (3).
Procedure. The employee is required to make application for social security old age benefits within 30 days of notification of eligibility by the employer and provide the employer with a proof of application. The employee also must provide a release for necessary information within 30 days of the payment of the first WC benefits or within 30 days of the date of application for any benefit subject to coordination. Failure to provide the release may result in discontinuance of benefits for the duration of the refusal. Reductions in benefits must be reported to the Board on the Form WCB-4 -Discontinuance or Modification of Compensation, indicating which type of benefit is being reduced and attaching the mathematical calculations used to determine the new level of benefits. WCB Rules c. 9, § 1.
For injuries on and after January 1, 2013, the after tax amount of benefits is defined as the net weekly amount of old age benefits or benefits under an employee benefit plan, reduced by the prorated amount which would have been paid under the Federal Contributions Act, or state or federal taxes, as calculated on an annual basis. The after tax amount of benefits subject to taxes must be determined using the maximum number of dependents to which the employee is entitled and standard deduction or zero bracket applicable to the employee’s filing status.
Employees with dates of injury after December 31, 1992 are entitled to the assistance of WCB Worker Advocates, who in most cases are attorneys, at no charge, at both the mediation and formal hearing stages of WCB proceedings.
Claims professionals are required to be licensed in Maine. The application can be found at http://www.maine.gov/pfr/insurance/producer/pdf/adjuster.pdf. Per 39-A M.R.S.A. §102 (14), an insurance carrier may not be qualified to issue a workers' compensation insurance policies in unless it has and continuously maintains an employee or claims agent within Maine who is empowered to investigate claims; sign agreements for the payment of compensation and issue drafts or checks in payment of obligations in amounts of at least $1,000.
Discovery and other aspects of the formal hearing are governed by 39-A M.R.S.A. § 309 and Chapter 12 of the WCB Rules. The parties are required to exchange standard discovery information within 30 days of completion of mediation or from the filing of a petition, whichever comes later. Also, the employee must provide any work search or labor market evidence the employee intends to present within 30 days of receipt of the discovery forms. This information must be updated not later than 7 days before the hearing.
Within 14 days of receipt of the employee’s standard discovery information, the employer must turn over all already on hand. Subsequently received surveillance information must be turned over as received but not later than seven days before the hearing. This discovery may be deferred until after the employee’s testimony upon a Motion to Stay Production of Surveillance Information by employer’s counsel to the Deputy Director of Dispute Resolution, if the Deputy Director finds significant inconsistencies between the surveillance evidence and the employee’s discovery information.
Within 30 days of receipt of the employee’s work search or labor market information, the employer must provide the employee with any labor market evidence it intends to present. Further discovery generally will require Board approval. Failure to provide the required information may result in its exclusion from the evidence considered by the Hearing Officer. Failure to follow the rules may result in other sanctions, such as dismissal of the petition. WCB Rules c. 12, §12.
The moving party is required to file a Joint Scheduling Memorandum within 45 days after completion of mediation or the filing of a petition, whichever comes later. The “joint” nature of the memo requires consultation with the opposing party. WCB Rules c. 12, § 13
Evidence. The rules of evidence need not be observed in formal hearings, but rules of privilege will apply. Evidence will be admitted if “it is the kind of evidence on which reasonable persons are accustomed to relying in the conduct of serious affairs.” Irrelevant or unduly repetitive evidence may be excluded. 39-A M.R.S.A. § 309(2).
Sworn Statements and Medical Records. Except for sworn statements by doctors and chiropractors, sworn statements may not be admitted unless the author is available for cross-examination and subject to subpoena. Sworn statements of doctors and chiropractors are admissible if noticed to the opposing party 14 days prior to hearing. 39-A M.R.S.A. § 309(3). (As a matter of customary practice, opposing counsel ordinarily do not require that the medical records and reports of doctors and chiropractors be sworn.)
Depositions. Depositions of health care providers are not automatic. If a party objects, then the deposition will require hearing officer approval and often will be denied. Depositions must be scheduled and noticed before the hearing, although they may occur after the hearing with hearing officer approval. Such depositions must be completed within 45 days after the hearing.WCB Rules c.12, § 15. Depositions of section 312 examiners require prior approval from the hearing officer.
The maximum fee for a physician’s preparation for testimony is $180 for the first half hour and $70 for each subsequent 1/4 hour. For giving testimony, the maximum fee is $400 for the first hour and $90 for each subsequent 1/4 hour. Cancellation fees for depositions: $350 maximum, if notified less than 24 hrs. in advance and $300 maximum, if notified less than 48 hrs. in advance. The party canceling the deposition is responsible for the incurred cost. These maximums do not apply to the fees that may be agreed upon by insurance carriers or employers for independent medical examinations or reports. Portal-to-portal reimbursement for travel is allowed, limited to the actual, reasonable and necessary costs and actual and necessary time at $300 per hour. Rules c. 5, §§ 1.08.
A Decree allowing the reduction or termination of benefits takes effect when issued by the Hearing Officer. The employer or insurer may reduce or discontinue benefits pursuant to the Decree pending a Motion for Findings of Fact and Conclusions of Law or pending an appeal. 39-A M.R.S.A. § 205(9)(B)(2). The hearing officer’s findings of fact will be final. This means that they cannot be appealed unless they have no foundation in the evidence, are arbitrary and capricious, or are contrary to the applicable law. 39-A M.R.S.A. § 318.
An award, decree or compensation payment scheme may be reopened on the basis of newly discovered evidence by petition filed within 30 days of the award, decree, or payment scheme. 39-A M.R.S.A. § 319 . Agreements and compensation payment schemes may also be reopened for mistake of fact or fraud. However, an employer wishing to reopen a compensation payment scheme must do so within one year of the award, decree, or initiation of the payment scheme. There is no time limit on the employee’s right to request reopening for mistake of fact or fraud. 39-A M.R.S.A. § 321.
The Maine WC Act provides that if the Board enters a decision awarding benefits, payments must continue pending any appeal. These payments may be recovered in the event of a successful appeal. The employer or insurer may recover from an employee payments made pending a Motion for Findings of Fact and Conclusions of Law or an appeal if in the decision on the Motion it is decided that the Employee was not entitled to the compensation. The Board has jurisdiction to determine the amount and schedule of repayment. The Board shall consider the financial situation of the Employee in ordering the repayment.
Per 39-A M.R.S.A. § 151(1) the WC Board shall obtain the services of persons qualified by background and training to serve as hearing officers, who are authorized to take action and enter orders consistent with this WC Act in all cases assigned to them by the board. Presently there are eight hearing officers who serve at the pleasure of the Board at the five regional offices located throughout the state.
Hearing and Decision: Pursuant to 39-A M.R.S.A. § 318 each hearing officer shall hear those witnesses as may be presented or, by agreement, the claims of both parties as to the facts may be presented by affidavits. If the facts are not in dispute, the parties may file with the hearing officer an agreed statement of facts for a ruling on the applicable law. From the evidence or statements furnished, the hearing officer shall in a summary manner decide the merits of the controversy. The hearing officer's decision, in the absence of fraud, on all questions of fact is final; but if the hearing officer expressly finds that any party has or has not sustained the party's burden of proof, that finding is considered a conclusion of law and is reviewable.
Appeal to the full Workers’ Compensation Board:Any hearing officer may refer appeals to the WC Board pertaining to “issues that are significant to the operation of the workers’ compensation system.” Such requests must be made within 5 days of issuance of the decision. 39-A M.R.S.A. § 320.
The Worker’s Compensation Board consists of three representatives of management, three representatives of labor and the executive director who is appointed by the Governor. All management representatives must be appointed from a list provided by the Maine Chamber of Commerce and Industry or other bona fide organization or association of employers. All labor representatives must be from a list provided by the Executive Board of the Maine AFL-CIO or other bona fide labor organization or association of employees representing at least 10% of the Maine work force. 39-A M.R.S.A. § 151(1).
Aside from the executive director, the Board’s members generally are not lawyers. Appeals to the “full Board” have been rare and may occur even less frequently given the recent reinstatement of the WCB Appellate Division.
Payments during appeal.
If an employer, insurer, or self-insurer prevails in reducing an employee’s benefits, they may discontinue or reduce benefits once the decree is issued by the hearing officer and no longer need to wait until all appellate proceedings have been completed. 39-A M.R.S.A. §205(9)B(2).
Appeal to the Appellate Division of the Board:
In 2012 the Legislature recreated an Appellate Division of the Workers’ Compensation Board to review decision of individual Hearing Officers, much as it existed prior to 1993. The appellate panels consist of no fewer than three Hearing Officers (not including the one who initially ruled on the case) who jointly hear appeals and issue decisions on questions of law. 39-A M.R.S.A. § 321-A & B Any party in interest may file with the Division a notice of intent to appeal within 20 days of receipt of a Decree.
The parties may file a Petition for Appellate Review to the Law Court, which is a short (under 10 pages) appellate brief in which the appellant tries to convince the Law Court that there is a viable legal issue of sufficient importance to justify taking the appeal. Only if the petition is granted will the appellant be allowed to proceed with the appeal, as set forth in 39-A M.R.S.A. § 322. Historically, only a handful of WC cases were decided by the “Law Court” each year, even though there has been no intermediate appellate court since 1993.
The Court will …” give deference to the [board's] findings, and will vacate a decision regarding the employment relationship only when it falls outside the decisional range in which reasonable [hearing officers], acting rationally, could disagree, or when a [hearing officer] misconceives the meaning of the applicable legal standard." West v. C.A.M. Logging, 670 A.2d 934, 937 (Me. 1996) (quotation marks omitted); see also Timberlake v. Frigon & Frigon, 438 A.2d 1294, 1296 (Me. 1982).
Per 39-A M.R.S.A. § 313, mediation is mandatory with regard to all disputes, except those within the jurisdiction of the Abuse Investigation Unit. It is triggered by either the filing of a Notice of Controversy or the filing of a petition. Mediation is preceded by an attempt to resolve the matter by a WCB Claims Resolution Specialist (also referred to as a “Troubleshooter”.) If these attempts are unsuccessful, the matter is scheduled for mediation. Rules c. 1, § 6.
Non-cooperation by any party is punishable by sanctions, including assessment or reduction of attorney’s fees and suspension of proceedings. In addition, failure of a representative of a party to have “full authority to make decisions” at mediation may result in a $100 forfeiture.
In practice, these penalties and sanctions, other than suspension of proceedings, are rarely imposed on the employee or employee’s counsel. Mediation shall be conducted in person unless both parties agree to telephonic or videoconference mediation. The request should be made 7 days prior to the scheduled mediation. If all parties agree, the request will be granted.
Mediators prepare a Report of Mediation concerning the results of mediation, which is signed by the representatives of the parties at mediation. The contents of the report are binding as to all matters agreed upon by the parties at mediation. (A mediation agreement, however, like a decree, can be modified upon a finding of changed circumstances.) If an issue or a defense is not preserved in a mediation agreement, there is a strong argument that it will be deemed to have been waived. Matters not resolved by mediation will be referred to formal hearing before a hearing officer.
The insurer, employer, and employee must all agree on settlement. However, the WCB can approve the settlement over an insured employer’s objection, if the hearing officer finds the settlement to be “in the best interest of the parties.” It cannot approve a settlement over the objection of the insurance carrier on the risk for the injury, however. Curtis v. National Sea Products, 657 A.2d 320 (Me. 1995). Timely notification and explanation of the settlement to the insured employer is still essential to the approval of the settlement. An insured employer may successfully block or delay a settlement using this provision, since approval is in the discretion of the hearing officer.
There can be no settlement until 6 months after the date of injury. 39-A M.R.S.A. § 352(1)(B). A permanent impairment rating must be obtained prior to approval of the settlement. 39-A M.R.S.A. § 213(2). (The rating should be written in the box provided on the WCB-10 Lump Sum Settlement Form
Approval by the WCB is required. A hearing officer must review the proposed settlement under guidelines specified in this statute within 14 days of a request for lump sum settlement. 39-A M.R.S.A. § 352(4). In particular, the hearing officer must find that the settlement is in the best interest of the employee and, if medical payments will not continue after settlement, that the parties would be unlikely to agree to the amount of the lump sum settlement without the release of liability for future medical expenses. 39-A M.R.S.A. § 352(5). The hearing officer must determine the expected future medical costs related to the injury. WCB Rules c. 12 § 6. All proceedings must be recorded.
Every private employer, including an independent contractor who hires and pays employees, is subject to the Act and must secure the payment of compensation with respect to all employees or self- insureds. 39-A M.R.S.A. § 403
A. Employers of employees engaged in domestic service;
B. Employers of employees engaged in agriculture or aquaculture as seasonal or casual laborers, if the employer maintains coverage by an employer's liability insurance policy with total limits of not less than $25,000 and medical payment coverage of not less than $5,000.
(1) As used in this subsection, "casual" means occasional or incidental. "Seasonal" refers to laborers engaged in agricultural or aqua-cultural employment beginning at or after the commencement of the planting or seeding season and ending at or before the completion of the harvest season;
C. Employers of agricultural or aqua-cultural laborers, if the employer maintains an employer's liability insurance policy with total limits of not less than $100,000 multiplied by the number of full-time equivalent agricultural or aqua-cultural laborers employed by that employer and medical payment coverage of not less than $5,000, and either:
(1) The employer has 6 or fewer concurrently employed agricultural or aqua-cultural laborers; or
(2) The employer has more than 6 agricultural or aqua-cultural laborers but the total number of hours worked by all such laborers in a week does not exceed 240 and has not exceeded 240 at any time during the 52 weeks immediately preceding an injury.
Seasonal and casual workers, immediate family members of unincorporated employers and immediate family members of bona fide owners of at least 20% of the voting stock of an incorporated employer are not considered agricultural or aqua-cultural laborers. "Immediate family members" means parents, spouses, brothers, sisters and children and the spouses of parents, brothers, sisters and children.
If any employer who is required to secure the payment to that employer's employees of the compensation provided for by this Act fails to do so, the employer is subject to the penalties set out below:
A. The employer is guilty of a Class D crime.
B. The employer is liable to pay a civil penalty of up to $10,000 or an amount equal to 108% of the premium, calculated using Maine Employers' Mutual Insurance Company's standard discounted standard premium, that should have been paid during the period the employer failed to secure coverage, whichever is larger, payable to the Employment Rehabilitation Fund.
C. The employer, if organized as a corporation, is subject to administrative dissolution as provided in Title 31, section 1421 or revocation of its authority to do business in this State as provided in Title 13-C, section 1532. The employer, if organized as a limited liability company, is subject to administrative dissolution as provided in Title 31, section 1592. The employer, if licensed, certified, registered or regulated by any board authorized by Title 5, section 12004-A or whose license may be revoked or suspended by proceedings in the District Court or by the Secretary of State, is subject to revocation or suspension of the license, certification or registration.
Prosecution under paragraph A does not preclude action under paragraph B or C. Further, if the employer is a corporation, partnership, limited liability company, professional corporation or any other legal business entity recognized under the laws of the State, any agent of the corporation or legal business entity having primary responsibility for obtaining insurance coverage is liable for punishment 39-A M.R.S.A. § 324.
A private employer who has not secured the payment of compensation is not entitled, in a civil action brought by an employee or the employee's representative for personal injuries or death arising out of and in the course of employment, to the defense of sole remedy. The employee of any such employer may, instead of bringing a civil action, claim compensation from the employer under this Act. 39-A M.R.S.A. § 401.
The Maine Legislature created the Maine Insurance Guaranty Association as a non-profit unincorporated legal entity in 1969 to provide a mechanism for the payment of covered claims under certain insurance policies and to avoid financial loss to claimants or policyholders due to the insolvency of an insurer. 24-A M.R.S.A. §§ 4431 – 4452. The Association is funded by assessments on insurers writing in Maine. The Guaranty Fund Management Services (“GFMS”) is a non-profit association formed by the Association and its counterparts in the New England states, Virginia and the District of Columbia to assist those guaranty associations in carrying out their statutory obligations.
The Supplemental Benefits Fund was created by the Legislature in 2001 to reimburse insurers for their payments of compensation to employees under section 213, subsections 3 and 4. Note that no reimbursement is available under either provision for dates of injury on or after 1/1/2000. 39-A M.R.S.A. § 355-A
For dates of injury between 1/1/93 and 1/1/98, when the permanent impairment is greater than the 11.8% threshold under section 213(2), but not more than 15%, the employee is entitled to benefits for the duration of the disability, but all partial compensation benefits paid in excess of 260 weeks are reimbursable from the Supplemental Benefits Fund. 39-A M.R.S.A. § 213(3).
For dates of injury between 1/1/93 and 1/1/00, where weekly benefits exceed the original limitation of 260 weeks due to the Board having extended the limitation, as provided in section 213(4), the employer/ insurer is entitled to be reimbursed from the Supplemental Benefits Fund for all weeks paid in excess of 260 weeks up to the final 520 week limit. Thus, where the whole person permanent impairment is less than or equal to 15%, the employer/insurer is entitled to reimbursement for all weekly payments from 260 weeks through 520 weeks. 39-A M.R.S.A. §213(4).
39-A M.R.S.A. §-C(2)(6) explains how to request reimbursement from the Fund. Note that you can seek reimbursement from the Fund even for the indemnity portion of a lump sum settlement in cases where reimbursement would otherwise be available as described in the sections listed above.