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.
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