Modifying Incapacity Benefits—Certificates and Petitions for Review

The nature, extent, and/or level of incapacity often becomes a disputed issue in workers’ compensation claims. This could be due to a medical release assessing work capacity for an individual who was previously medically totally incapacitated, or a medical release assessing less stringent restrictions for an individual previously partially incapacitated with stricter restriction. It could also be a job offer, labor market findings that the employee has earning capacity within physical limitations, or surveillance evidence, among other things. 

The simplest approach to a discontinuance or reduction is in 39-A M.R.S.A. § 205(9)(A) of the Maine Workers’ Compensation Act. Incapacity benefits may be reduced or discontinued upon an employee’s return to work at the same employer. Oftentimes, however, this is not an option. 

If no payment scheme is in place (i.e., payment is being made non-prejudicially), § 205(9)(B) can be used to unilaterally reduce or discontinue incapacity benefits. Here, a WCB-8 Certificate of Discontinuance/Reduction of Compensation must be filed with the Workers’ Compensation Board by certified mail and sent by certified mail to the employee. The WCB-8 must be supported with the sort of evidence referenced above. In such a case, the employee may challenge this with an employee Petition for Review and request a Provisional Order reinstating benefits. The case then proceeds into formal litigation. 

What about when an employer/insurer wishes to take action but a payment scheme is in effect (approved agreement by the Board, Decree, accepted Memorandum of Payment)? The avenue for relief is a Petition for Review. In such cases, the Board must set the matter for hearing and go through the formal litigation process to determine whether benefits may be reduced or discontinued. Petitions for Review may be filed under circumstances similar to those above which would prompt a WCB-8. However, the standard is high for Petitions for Review. To prevail on a Petition for Review, an employer/insurer must show there has been a change in medical or economic circumstances to reduce or discontinue benefits. 

Note that in determining whether changed circumstances may exist, careful attention must be given to identifying the basis on which the prior award was made. 

To prove a change in medical circumstances, comparative medical evidence must be provided. For example, an employee was found medically totally incapacitated in a prior decree, but recent medical evidence demonstrates that the employee has the capacity to work with restrictions. The comparison is made between the most recent evidence and the circumstances at the time of the prior Board decision or approved agreement awarding benefits. 

Among other things, evidence regarding the current labor market or evidence that an employee has performed a work search may be relevant to the determination of whether there has been a change in economic circumstances. In all cases, the key is to ensure the evidence is of the kind which will provide sufficient proof of a change in circumstances. 

Another circumstance where a Petition for Review can be filed is when the 520-week “durational cap” is approaching in cases where an employee is receiving partial incapacity benefits. Such a Petition is usually filed in advance of the expiration of the 520-week mark given the length of the litigation process.