New Legislation Provides for Right to Benefits to Employees Participating in Vocational Rehabilitation, Limited Exceptions for Insurers to Reduce Benefits

The Maine Workers’ Compensation Act provides, “[w]hen as a result of injury the employee is unable to perform work for which the employee has previous training or experience, the employee is entitled to such employment rehabilitation services, including retraining and job placement, as reasonably necessary to restore the employee to suitable employment.” Further, “[i]f employment rehabilitation services are not voluntarily offered and accepted, the board on its own motion or upon application of the employee, carrier or employer, after affording the parties an opportunity to be heard, may refer the employee to a board-approved facility for evaluation of the need for and kind of service, treatment or training necessary and appropriate to return the employee to suitable employment. . . .” 

Through October 31, 2017, § 217 provides:

8. Presumption. If an employee is participating in a rehabilitation plan ordered pursuant to subsection 2, there is a presumption that work is unavailable to the employee for as long as the employee continues to participate in employment rehabilitation.

In Axelsen v. Interstate Brands Corp., App. Div. No. 15-27 (October 22, 2015) the Workers’ Compensation Board Appellate Division found the presumption in § 217(8) is rebuttable. The employer can seek to rebut the presumption and establish the employee’s extent of incapacity is less than 100% while a Board-ordered vocational rehabilitation plan is in effect by proving that work is available through labor market evidence.

LD 612 (“An Act To Improve Vocational Rehabilitation under the Maine Workers’ Compensation Act of 1992”) will become effective November 1, 2017. The new legislation repeals § 217(8) and enacts § 217(9) which states:

9. Reduction of benefits. If an employee is actively participating in a rehabilitaion plan ordered pursuant to subsection 2, benefits may not be reduced except:

A. Under section 205, subsection 9, paragraph A, upon the employee’s return to work with or an increase in pay from an employer who is paying the employee compensation under this Act; 

B. Under section 205, subsection 9, paragraph B, based on the amount of actual documented earnings paid to the employee; or 

C. When the employee reaches the durational limit of benefits paid under section 213. 

The new legislation repeals the presumption in the current law with respect to an injured employee participating in employment rehabilitation that work is unavailable to the employee. In place of the presumption, the new legislation enacts a new provision which provides that an injured employee participating in vocational rehabilitation has a right to benefits except under only three circumstances where benefits may be reduced:

1. when the employee has returned to work with or received an increase in pay from the employer; 
2. when the employer has reduced benefits based on actual documented earnings of the employee; and 
3. when the employee has reached the durational limit on partial incapacity benefits 

Under the new legislation, there is no requirement that benefits be returned to the total rate if an employee has already been reduced to a partial rate, but benefits may not be reduced further except under the limited circumstances above.