Sporadic Lost Time, the Seven Day Waiting Period, and Rule 1.1

Tuesday, November 21, 2017

The Maine Workers’ Compensation Board recently addressed a case involving the time for payment of benefits, the statutory waiting period and the application of Rule 1.1, emphasizing the need to pay close attention to broken periods of lost time.

39-A MRSA § 205(2) provides:
2. Time for payment. The first payment of compensation for incapacity under section 212 or 213 is due and payable within 14 days after the employer has notice or knowledge of the injury or death, on which date all compensation then accrued must be paid. Subsequent incapacity payments must be made weekly and in a timely fashion. . . .
39-A MRSA § 204 imposes a seven-day waiting period before incapacity benefits are payable: 
§204. Waiting period; when compensation payable
Compensation for incapacity to work is not payable for the first seven days of incapacity, except that firefighters must receive compensation from the date of incapacity. In case incapacity continues for more than fourteen days, compensation is allowed from the date of incapacity.
The so-called “fourteen-day rule," per WCB Rule, c. 1 § 1, provides: 
§ 1. Claims for Incapacity and Death Benefits  
1. Within fourteen days of notice or knowledge of a claim for incapacity or death benefits for a work-related injury, the employer or insurer will:
A. Accept the claim and file a Memorandum of Payment checking "Accepted"; or
B. Pay without prejudice and file a Memorandum of Payment checking "Voluntary Payment Pending Investigation"; or
C. Deny the claim and file a Notice of Controversy.
For cases where the employee does not lose consecutive days from work, the methodology recommended by the Workers’ Compensation Board’s Monitoring Audit and Enforcement Unit is to file a Memorandum of Payment (MOP) or Notice of Controversy (NOC) “on the sixth day after ‘day 8.’” In other words, once an employee has missed eight nonconsecutive days of work, a MOP or NOC should be filed with the Board on the sixth day thereafter.

In Bendtson v. Penobscot Bay Medical Center, WCB No.: 16-004591 (October 18, 2017), the Employee in Bendtson worked as a certified nursing assistant (CNA). She was hurt lifting a resident on March 1, 2016. She was provided with a transitional work assignment from March 1, 2016, to April 1, 2016. She called out before her scheduled shift on March 1 as she claimed she was in too much pain to work. She called out again before her next scheduled shift on March 4, 2016. On March 8, 2016, she was assessed with modified work capacity. Over the next two weeks, she worked several light-duty shifts but also called out twice due to her back. On March 22, 2016, the employee checked herself into a facility for unrelated treatment, but was discharged March 28, 2016. On that date, she told her Employer that she was unable to work on account of neck/upper back pain.

In sum, the employee called out or was taken out of work by a medical provider on seven nonconsecutive days (March 1, 4, 5, 6, 7, 13, and 18). The NOC was required to be filed six days after “day 8.” In this case, “day 8” did not occur until after March 28. The administrative law judge (ALJ) noted, “whether there was a fourteen-day violation depends on how much time [the Employee] was out of work due to her work injury, whether this exceeded the statutory seven-day waiting period, and when the Employer had ‘notice or knowledge of a claim for incapacity.’”

The Board found that the filing of a NOC on April 1 (well within fourteen days of March 28) was timely.

The Board also reminded us that the event which triggers an employer’s obligation to act (under Rule 1.1) is its notice or knowledge of a “claim for incapacity or death benefits for a work-related injury.” An employer’s knowledge of lost time is insufficient to trigger the rule—the employer must have knowledge of a claim for incapacity benefits. The ALJ found it significant that the Employer had notice of the claimed injury and that the Employee had lost several days of work but that this did not constitute knowledge of a “claim for incapacity benefits” which triggered an employer’s obligation to file a NOC. Because the seven-day waiting period had not yet expired, the Employer had no obligation to pay benefits. The Employer would not have been able to file a MOP, either accepting the claim or as a voluntary payment without prejudice, because it was not yet obligated to make any payment. Therefore, two of the three actions that an employer must choose under Rule 1.1 were unavailable to the Employer until March 28, 2016, when the employee told the Employer she was unable to work due to neck and upper back pain.

Ultimately, because the employee’s sporadic days out of work did not exceed the seven-day waiting period until March 28, 2016, and because the Employer had no notice or knowledge of a claim for incapacity until then, the filing of a NOC on April 1, 2016, was timely and there was no fourteen-day violation.

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