Maine Bureau of Insurance: Opioid Prescription Claims Drop Between 2016 – 2017

In 2016, the Maine State Legislature enacted Public Law 2015, Chapter 488, “An Act to Prevent Opiate Abuse by Strengthening the Controlled Substances Prescription Monitoring Program.” This statute established limits on the duration and dosage of prescriptions that healthcare providers may write for opioid medications. The statute also tasks the Bureau of Insurance with studying the effects of this legislation on claims paid by health carriers and the out-of-pocket costs (coinsurance, copayments, and deductibles) paid by policy holders and certificate holders. 

According to a Maine Bureau of Insurance report, prescriptions for opioid painkillers in Maine have dropped off significantly, in no small part due to a prescription monitoring law that has been called one of the toughest in the country. 

The report specifically finds that opioid prescription claims dropped by nearly 20 percent, with about 27,700 fewer claims between the first half of 2016 and the same period in 2017. Further, the report indicates that insurance companies spent $2.4 million less on opioid and opioid derivatives, while plan members spent nearly $580,000 less.

The decline is thought to be a product of providers weaning patients off of painkillers or using safer alternative modalities for pain, such as physical therapy, massage, or other alternative treatments. 

The recent trend in Maine is part of a larger pattern. According to the U.S. Centers for Disease Control and Prevention, opioid painkiller prescriptions have dropped nationally in recent years after surging since the late 1990s and peaking in 2010. Maine topped the nation for the rate of prescriptions for highly addictive, long-term opioid painkillers in 2012. 

The use of opioids in the context of workplace injuries has been a significant topic of discussion in recent years. With increased awareness of the adverse effects of opioids, the use of alternative therapy, and the new monitoring law, expect the trends above to continue.

WC Board Executive Director and Director of Audits Weigh in on Unsettled Issues; More Issues to Be Addressed

The Workers’ Compensation Board (WCB) recently hosted an open forum featuring input from the WCB Executive Director, Paul Sighinolfi, and Director of Audits at the WCB’s Office of Monitoring, Audit and Enforcement (MAE), Gordon Davis. The following are some takeaways which clarify previous areas of concern.

Discontinuance of benefits for incarcerated employees 

A WCB-8 (i.e., a 21-day certificate) is not necessary to discontinue benefits for an incarcerated employee. Instead, a WCB-4 discontinuance may be used, and the “other” box should be checked, with “incarceration” listed as the basis for discontinuance.

Discontinuance upon a return to work for the pre-injury employer

When an employee returns to work, at his or her preinjury employer, on modified duty, and earns/exceeds his or her average weekly wage (AWW) for one week, a WCB-4 discontinuance will be accepted by the MAE. 

Otherwise, the WCB recommends that the employer/insurer reach out to the medical provider to clarify the M-1, or talk to the employee to verify he/she is not losing time due to the work injury (all conversations should be documented). The best practice is to enter into a WCB-4A Consent Form. However, an internal form signed by the employee, confirming no wage loss due to the injury is acceptable and the employee’s documented confirmation of the same will carry more weight in an audit than a traditional comparison of actual earnings to AWW. 

Vacation pay and sick pay 

Vacation pay is not to be considered regular earnings when calculating benefits. Sick time may be set off. 

Provisional average weekly wages

The MAE takes the position that, if there is uncertainty, an employer/insurer should “estimate a little low” for a provisional AWW, but anything “reasonable” is acceptable, such as an employee’s hourly rate multiplied by the hours the employee was hired to work. 

Calculating average weekly wages and completing wage statements

In preparing a wage statement, 12 weeks of wages are not required. If earnings are consistent but less than 12 weeks are available, one need not use comparable wages. We are reminded to use method D in 39-A M.R.S.A. §102(4) only if A, B, and C do not apply. In such case, wages used must be “representative” and one must have documentation to show how the AWW was arrived at. Ultimately, MAE will accept fair and reasonable AWW’s, even when other methods could also be fairly used.

Interplay between Form WCB-4A and a pending Form WCB-8

A WCB-8 will become moot if a WCB-4A consent form is filed. If an employee returns to work with the same employer earning his or her average weekly wage, or is incarcerated, a WCB-4 discontinuance can be filed, even if a WCB-8 was filed first.

The seven-day waiting period and firefighters

If an employee is concurrently employed as a firefighter, it is the job at which he/she was injured that controls. In sum, a firefighter injured at another job outside of firefighting still has a waiting period.

Fixed partial rates are preferred over varying rates

We are reminded that compensation can be modified to a fixed rate based on actual earnings, even if wages tend to vary but have “stabilized.” Even an employee who works a rotating shift schedule may be set at a fixed rate, so long as there is a rational basis. As well, initial Memoranda of Payment may be set at a fixed rate so long as a fair and reasonable basis is documented.

Fluctuating earnings

If there are earnings fluctuations with no relation to a work injury, and a claim is made, or if the employee still has restrictions, a Notice of Controversy (NOC) should be filed. If there is no claim made and no restrictions, just fluctuating earnings, no NOC should be necessary.

Vacation and the waiting period

If an employee on restrictions goes on vacation, and meets the waiting period, a pay decision is required.

Additional issues to be addressed

Among the issues still being considered are whether benefits can be discontinued without a WCB-8 upon a full release to work; the implementation of an “excusable neglect” standard for Rule 1.1 (i.e., the 14-day rule); and whether a percentage of paid time off (PTO) can be considered as sick time and subject to a setoff.

We will have more information on these issues and others as they develop.

Maine Workers’ Compensation Board Approves New § 312 Candidates

In a unanimous vote, the Maine Workers’ Compensation Board recently approved Dr. Benjamin Branch, a physiatrist, and Dr. Howard Glass, a cardiologist, as independent medical examiners (IMEs) pursuant to 39-A M.R.S.A. §312 of the Maine Workers’ Compensation Act. 

Section 312 IMEs render medical findings on the medical condition of an employee and related issues. The IME in a case may not be the employee’s treating healthcare provider and may not have treated the employee with respect to the injury for which the claim is being made or for which the benefits are being paid. Unless agreed upon by the parties, or no other physician is reasonably available, a physician is not eligible to be assigned as an IME if the physician has examined the employee at the request of an insurance company, employer, or employee in accordance with section 207 (an employer/insurer-requested medical examination) or has been closely affiliated with the insurance company at any time during the previous 52 weeks. 

The opinions of IMEs are afforded great weight. Under the Maine Workers Compensation Act, “[t]he board shall adopt the medical findings of the [IME] unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings.” The Maine Supreme Court has interpreted the “clear and convincing evidence to the contrary” standard to require a showing “that it is highly probable that the record did not support the [IME’s] findings.” Dubois v. Madison Paper, Co., 2002 ME 1. The Court in Dubois described the standard as follows:

The party with the burden of persuasion may prevail only if he can place in the ultimate factfinder an abiding conviction that the truth of his factual contentions are highly probable.

Id. at ¶ 10 (citations and internal quotations omitted).

The Board maintains a list of approved examiners, which, at the present time, includes the following specialties: chiropractic, internal medicine, family medicine, orthopedics, osteopathy, physiatry, podiatry, psychology, psychiatry, neurology, and pulmonology.

Appellate Division Finds Amendment to Current Maine Workers’ Compensation Act Can Toll Statute of Limitations Under the Former Act with In-House Medical Treatment

In Davis v. Boise Cascade, WCB App. Div. No. 17-41 (December 1, 2017), the Appellate Division weighed in on a case involving in-house medical treatment and tolling of the statute of limitations under the former and current Maine Workers’ Compensation Act.

The statute of limitations for injuries prior to January 1, 1993 (39 MRSA § 95), does not contain a provision tolling the time for filing claims in the event that in-house medical care was provided by an employer for a work injury. Effective January 1, 1993, as part of the enactment of the Maine Workers’ Compensation Act of 1992, a new statute of limitations was passed (39-A MRSA § 306). The new version of Title 39-A has a transition section stating that § 306 applies only to injuries on or after January 1, 1993, while dates of injury prior to that date were controlled by the analogous former Title 39. But in 2001, the Legislature amended § 306 to add a new paragraph (A) to subsection (2), tolling the statute of limitations when an injured worker received medical care from the employer’s in-house medical staff. Of note, the application provision of the 2001 amendment states that it “applies to all injuries and illnesses, regardless of when they occurred.”

The administrative law judge (ALJ) found that the 2001 amendment to § 306 applies to the 1989 and 1990 injuries and that the medical treatment provided by NewPage’s in-house medical department had tolled the statute of limitation against Boise Cascade.

The issue on appeal was whether the 2001 amendment to § 306 applies to claims governed by 39 MRSA § 95 so as to alter what constitutes a payment of benefits for those claims and, if so, whether the ALJ properly applied that amendment to this case.

The employee worked at the Rumford paper mill from 1981 to 2014. During this time, the mill changed ownership from Boise Cascade to NewPage Corporation; Sedgwick acted as workers’ compensation claims manager for both. The employee sustained two work injuries while Boise Cascade owned the mill—in 1989 and 1990. He received partial incapacity benefits until July 22, 2004, when he began earning more than his pre-injury average weekly wage. The last payment of benefits that relates to the 1989 and 1990 injuries was made on July 22, 2004.

While weekly incapacity benefits had stopped, the employee’s neck continued to be symptomatic. He went to the mill’s medical department for neck-related treatment, including a visit on December 4, 2007. The employee’s low back condition continued to bother him. He periodically sought treatment for that condition at the mill’s medical department, including on April 30, 2009.

In 2010, after NewPage took over the mill, the employee sustained two more injuries: a March 3, 2010, right hand injury, and an August 11, 2010 low back aggravation. The employee also communicated his low back problems to Sedgwick, NewPage’s claims administrator. His discussion included mention of the August 2010 incident and a “1990ish” injury. Sedgwick paid the employee medical benefits but recorded its payments as relating to the August 2010 injury, not the 1990 injury.

In August and September 2014, the employee filed petitions seeking incapacity from Boise Cascade and NewPage for his four injuries and payment of medical bills. NewPage filed a Petition for Apportionment seeking contribution against Boise Cascade regarding the 1990 low back injury. Boise Cascade filed a Petition Seeking to Establish a Date of Maximum Medical Improvement on the 1989 and 1990 injuries and asserted statute of limitations defense on both of those injuries.

The Appellate Division found the ALJ’s interpretation of the amendment adding paragraph 306(2)(A) as applying to all injuries regardless of when they occurred was a reasonable construction and involved no misconception of applicable law.

The Appellate Division also rejected the employer’s argument that the ALJ’s interpretation is an unconstitutional retroactive application of § 306(2)(A). The Appellate Division found that, unlike amendments that shorten an existing statute of limitations, those that extend it are not “retroactive” if they: (1) do not change the legal consequences of acts or events that precede the effective date of amendment, and (2) the claims have not yet been barred by the previous statute of limitations. See Dobson v. Quinn Freight Lines, 4 16 A. 2d 814 (Me. 1980). Here, findings § 306(2)(A) extends the limitations period in 95, which does not change the legal consequences of acts that precede the effective date of an amendment, only those after it. In this case, the employee’s receipt of in-house medical treatment after July 22, 2004, took place after the 2001 amendment. Up to that time, the statute of limitations on the 1989 and 1990 injuries had not expired. Moreover, even if the amendment to § 95 were retroactive legislation, it would only be unconstitutional if “its implementation impairs vested rights or imposes liabilities that would result from conducted predating the legislation.” Merrill v. Eastland Woolen Mills, Inc., 430 A.2d 557 (Me. 1981). A retroactive extension of Title 39’s limitation period would not impair a vested right because “[n]o one has a vested right in the running of a statute of limitations until the prescribed time has completely run and barred the action.” Dobson, 415 A.2d at 816.

Judge Hirtle dissented, finding that the 2001 amendments to § 306 do not apply to the 1989 and 1990 injuries, and would accordingly find the claim for the 1989 injury barred by the statute of limitations. Judge Hirtle points out that the scope of Title 39-A, including 306, is found in sec A-10 of the Workers’ Compensation Act of 1993. Section A-10 provides, “[s]o as not to alter benefits for injuries incurred before January 1, 1993[,]” 306 does not apply to injuries prior to January 1, 1993, and the “applicable provisions of former Title 39 apply in place of Title 39-A” for injuries that occurred prior to January 1, 1993. According to Judge Hirtle, to interpret the 2001 amendments to 306 as altering the statute of limitations in 95 is inconsistent with the plain language of section A-10. Judge Hirtle finds the majority’s interpretation transforms the 2011 amendment of 306 into an amendment of 95, even though the Legislature expressly stated that those two sections have a separate and distinct application.

This case provides an interesting example of certain narrow circumstances where provisions of the new Act (Title 39-A) apply to pre-1993 dates of injury. Despite the fact that the transition section of Title 39-A provides that § 306 only applies to injuries on or after January 1, 1993, the Appellate Division apparently chose to give more weight to the 2001 amendment (§ 306(2)(A)), which provides that § 306 “applies to all injuries and illnesses, regardless of when they occurred.”

Workers’ Compensation Board Rules Taskforce Proposes Changes to Workers’ Compensation Board Rules

The Workers’ Compensation Board Rules Taskforce has proposed changes and amendments to various Board Rules. The following are highlights of what has been proposed. 

WCB Rules c. 1 may be amended to provide that if an employer is out of business, has been sold, or changed its name since the last time the employee worked there, an employee’s failure to give notice of the injury does not bar a claim unless the employer designated a person or entity to receive notice and the employee was provided with that designation in writing.

There is a proposed amendment to WCB Rules 4 §4(1), which currently provides that the cost for a 312 IME is borne “by the employer.” Under the proposed rule, the fee for the examination and report would be borne by the employer/insurer that requested the exam and any other employer/insurer that is a party to the proceeding. If an employee requests the exam, all employers/insurers that are parties shall, unless otherwise agreed, split the cost equally. 

A proposed amendment to Chapter 5 would provide for a procedure to expeditiously go before an administrative law judge (ALJ) if a medical release is revoked and there is a compensation payment scheme in place. 

There are numerous proposed amendments to WCB Rules c. 6, the vocational rehabilitation rule. Proposals would establish minimum qualifications for employment rehabilitation providers and provide for two-year appointments. The proposed rule would provide that providers must clearly articulate why or why not an employee is suitable for vocational rehabilitation and, if eligible, provide a detailed employment rehabilitation plan, including a clear plan for workforce reentry, outline of expected costs, and estimated length of the plan. There are also proposed rules dealing with plan implementation procedures and conflicts of interest. Objections to proposed plans would be forwarded to an ALJ for review. Proposed amendments also provide that an employment rehabilitation plan may end if the provider states that services have been completed; the duration allowed under §217(5) has expired; the applicant is unwilling or unable to continue, or is otherwise uncooperative; the parties agree to end the plan; a hearing officer or ALJ orders the plan to end; or the workers’ compensation claim lump sum settles. Finally, with respect to § 355(7) which provides that, “upon an order of recovery of plan implementation costs under section 217, subsection 3, the board shall assess the employer who refused to agree to implement the plan under section 217 an amount equal to 180% of the costs paid from the fund under this subsection,” a proposed amendment provides that an employer/insurer could file a petition objecting to an order of payment of costs where an employee returns to suitable employment after completing a rehabilitation plan to which the employer/insurer did not agree to pay.

A proposed amendement to WCB c. 8, § 18 would provide that the Consent Between Employer and Employee (WCB‑4A) may be used when the parties have agreed to discontinue or reduce benefits during the 21-day period following the filing of a Certificate of Discontinuance or Reduction of Compensation (WCB-8). By background, currently a WCB‑4A may be used when the parties have agreed to a voluntary payment of a retroactive closed-end period of incapacity, or a modification, reduction, or discontinuance in ongoing weekly incapacity benefits. 

There are various proposed amendments to WCB Rules c. 12, which primarily relate to hearing procedures. This includes revised questions on the exchange of information forms, minor changes in procedures regarding exhibits, and for continuances of hearings. There is also a proposed provision which would expressly provide that a party is not prohibited from seeking a prospective order for payment of medical treatment if payment for that treatment or treatments, or related expenses, has been denied by the opposing party.

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

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.

Appellate Division Revisits Res Judicata and Permanent Impairment in the Wake of Bailey v. City Of Lewiston

In Somers v. S.D. Warren Co., WCB App. Div. No. 17-38 (November 13, 2017), the Employee appealed a decision granting S.D. Warren’s Petition for Review and request to discontinue payments due to the expiration of the 520-week durational limit on incapacity benefits.

In a 2008 decree, the administrative law judge (ALJ) found the Employee’s knee condition resulted in 7% whole-body permanent impairment. The ALJ specifically declined to award any permanent impairment for the Employee’s adjustment disorder, a psychological sequela of the knee injury because, according to the § 312 Independent Medical Examiner, she did not sustain any permanent impairment due to that condition.

Litigation was commenced when S.D. Warren filed a Petition for Review seeking to terminate benefits based on the 520-week durational limit (under § 213 of the Maine Workers' Compensation Act, compensation for partial incapacity is payable for a maximum of 520 weeks, except in cases where an employee’s whole-person permanent impairment exceeds a given percentage [set by the Board]). On the other hand, the Employee argued that a “change in circumstances” since the prior decree—a worsening in her right knee and psychological conditions—justified reevaluation of her permanent impairment rating.

The ALJ found the Employee failed to establish a medical change in circumstances sufficient to overcome the res judicata effect of the 2008 decree. Thus, the ALJ found the impairment rating remained at 7%. The Employee filed a Motion for Further Findings of Fact and Conclusions of Law. In response, the ALJ did not alter the outcome, but issued an amended decree finding that any change in the Employee’s psychological condition was a change in degree, rather than kind.

On appeal, the Employee argued that the ALJ erred in finding that she failed to prove a change in circumstances necessary to overcome the res judicata effect of a 2008 decision establishing permanent impairment (valid decisions of the Workers’ Compensation Board are subject to the rules of res judicata and are no longer subject to collateral attack after they become final. This point becomes particularly important, as explained below).

Before a decision was issued, the Law Court issued its decision in Bailey v. City of Lewiston, 2017 ME 160. In Bailey, the Law Court has held that permanent impairment and maximum medical improvement are not subject to reconsideration, even in the face of changed medical circumstances. The Appellate Division offered its interpretation of a seemingly unclear point in the wake of Bailey. Namely, exactly what happens when an employee seeks to increase permanent impairment after a decree establishing permanency. To be clear, Bailey addressed whether a downward revision of permanent impairment was possible. The Employee argued that the Bailey decision should be limited in its application to that set of facts. The Appellate Division disagreed:

"We disagree with this contention. The issue in Bailey, as framed by the Court, was whether the Workers’ Compensation Act allows the Board to revise a previously established impairment rating. It answered that question in the negative without distinguishing between upward and downward revisions. Therefore, pursuant to Bailey, the ALJ did not err when declining to revise the 7% impairment rating assigned to [the Employee’s] knee in the 2008 decree."

The Employee also argued that the Board should have increased her whole body impairment rating to account for added impairment related to her psychological sequela. However, in 2008 the ALJ had essentially found 0% psychological impairment and that figure cannot now be adjusted upward based on changed circumstances. 

The ALJ granted S.D. Warren’s Petition for Review and allowed it to cease paying partial incapacity benefits. 

Time will tell whether the case is appealed to the Law Court.