Penalties for Reducing Benefits After Years of Improper Calculations
In Puiia v. Rumford Paper Co. (Me. WCB App. Div. No. 17-34), the Maine Workers’ Compensation Board (WCB) Appellate Division will hear oral argument in a case in which the employee sought the imposition of penalties based on the employer/insurer’s reduction of incapacity benefits. The employee had been paid 100% partial benefits pursuant to a March 2008 Decree that stated, “The employee is entitled to 100% partial benefits (limited by the statutory maximum) for the period November 28, 2006, through the present, and continuing.”
Per the above order, the Employee began paying weekly compensation of $574.08. On June 30, 2018, the Employer filed a Modification of Compensation, increasing benefits to $596.42 per week effective July 1, 2008, the date the maximum weekly benefit amount (§ 211) was adjusted. Similar increases were made on July 1 of each year through 2013. However, effective July 1, 2014, the Employer reduced weekly compensation at a rate from $655.78/week to $492.96/week. The reduction was made because the Employer had incorrectly calculated benefits by including fringe benefits (under § 102(4)(H) fringe benefits are not to be included in the benefit calculation if the resulting benefit amount exceeds 2/3 of the State Average Weekly Wage (SAWW) at the time of injury). In this case, the employee’s full compensation rate was an amount in excess of 2/3 of the SAWW. Therefore, by operation of § 102(4)(H), fringe benefits cannot be included in the weekly benefit amount. The administrative law judge (ALJ) found, “[t]he fact that Employer erroneously did so for years does not require it to continue to make the same computational error.”
The WCB found that the Employer/Insurer correctly calculated benefits in accordance with the payment order in the 2008 Decree, resulting in a reduction of her benefits effective July 1, 2014. There was therefore no legal basis for the imposition of penalties under §§ 359 or 360.
Alleged Improper Communication with § 312 Examiner
In Leclair v. Twin Rivers Paper Co., LLC (Me. WCB App. Div. No. 17-19), the issue before the Appellate Division is “[w]hether a violation of Board Rule Chapter 4 regarding communication with a § 312 examiner is sufficient to disqualify that examiner automatically or whether such disqualification is dependent on a finding of actual bias.”
WCB Rules c. 4 § 3 provide in relevant part:
Contacts with the employee by the Board-appointed independent medical examiner will be limited to the scheduling of examinations and actual examinations. All communication between the examiner and the parties must be in writing and, except for questions which a party requests that the examiner address in the report, may only occur by agreement or with the permission of the hearing officer. Any such communication must be received by the Board and copied to all opposing parties not later than fourteen (14) days prior to any examination and must clearly and conspicuously state that the communication has been agreed to by the parties or approved by a hearing officer. Communications that comply with this subsection will be forwarded to the examiner through the Office of Medical/Rehabilitation Services. Communications received by the Board on or after the date of the examination will only be forwarded to the examiner with prior approval of a hearing officer.
In this case, involving an alleged gradual injury to the lungs and respiratory system, the employee was evaluated by a § 312 examiner. The § 312 examiner found the upper airway sensitivity to be an occupational injury. The WCB adopted these findings. The employer/insurer objected to the admissibility of the § 312 examiner’s report because, according to the ALJ, “employee brought with him to the examination written materials which were not submitted to the [insurance medical exam] IME consistent with Board rules.” However, the ALJ also noted that at this deposition, the § 312 examiner testified that the written materials the employee brought to the § 312 exam “made no difference to his diagnosis and causation opinion.”
The decision is expected to shed light on whether the WCB Rule at issue is a zero-tolerance provision or whether actual bias must be demonstrated to disqualify a § 312 examiner.
Remaining Issues
The Appellate Division will also take up other issues during the February session, including sufficiency of findings to support ongoing causation, refusal of suitable work, and a change in circumstances in the context of work capacity, among others. The Appellate Division is set to hold additional sessions this year in April, June, September, and December.
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