WCB Limits Requirement for Notice of Rights Leading up to Cessation of Partial Incapacity Benefits after 520 Weeks

For injuries on or after January 1, 2013, partial compensation is calculated using 2/3 of the difference between the employee’s average weekly wage and post-injury earnings subject to the maximum rates. An employee’s benefits are capped after receiving 520 weeks of partial compensation benefits. This cap may be extended in cases involving extreme financial hardship or as outlined below. 

For injuries on or after January 1, 2013, employees whose permanent impairment exceeds 18% may qualify for an extension of the 520 week cap. Entitlement to benefits is determined based upon the facts as they exist at the expiration of 520 weeks of benefits, and requires that: (1) the employee must be working and the employee’s earnings (as measured by average weekly earnings over the most recent 26 week period) are 65% or less than the employee’s pre-injury average weekly wage; and (2) the employee’s actual earnings are commensurate with the employee’s earning capacity, including consideration of the employee’s physical and psychological work capacity as determined by a §312 Independent Medical Examiner, and (3) the employee 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. Additionally, once an employee’s post-injury earnings (as measured by the most recent 26 week period) exceed the pre-injury average weekly wage, the employee’s entitlement to partial incapacity benefits terminates permanently. 

Pursuant to the Board’s rules, an employer can discontinue partial incapacity benefits at the expiration of 520-weeks of payment of such benefits but, according to the a Workers’ Compensation Board rule, only if notice is first given to the employee 21-days in advance of the upcoming date of discontinuance and of the employee’s 30-day right to request a hardship extension. The rule states:

1. Prior to cessation of benefits pursuant to 39-A M.R.S.A. § 213(1), the employer must notify the employee that the employee’s lost time benefits are due to expire. The notice must be sent at least 21 days in advance of the expiration date, and must include the date the lost time benefits are due to expire and the following paragraph:

If you are experiencing extreme financial hardship due to inability to return to gainful employment, you may be eligible for an extension of your weekly benefits. To request such an extension, you must file a Petition for Extension of Benefits within 30 calendar days of the date that benefits expire, or, in cases where the expiration date is contested, within 30 calendar days of a final decree as to the expiration date.

Failure to send the required notice will automatically extend the employee’s entitlement to lost time benefits for the period that the notice was not sent. 

Notice shall be considered “sent” if it is mailed to the last address to which a compensation check was sent.

WCB Rule c. 2, §5

In Lorraine Somers v. S.D. Warren Co., Me. WCB No.: 00017178 (Feb. 28, 2017) Judge Elwin found that the above rule applies only if the employer files a 21-day Certificate of Discontinuance. It does not apply when a Petition for Review is filed when the decision is issued after the 520-week limit has expired because the future “date of discontinuance” is unknown at that point. Judge Elwin held that applying the rule when a Petition for Review is filed would be illogical because the date benefits are “due to expire” depends on when the Board issues a decision. The decision was appealed. The Appellate Division will decide the matter on the briefs or, if requested and the case fits the criteria, after oral argument.

As an aside, a Certificate of Discontinuance can only be filed when benefits are being paid voluntary, without prejudice (i.e. payment is not being made pursuant to an “accepted” Memorandum of Payment, Record of Mediation or Decree). In all other cases, a Petition for Review must be filed to discontinue benefits.