Maine WCB to Take up Rule Proposals in April 2018

The Maine Workers’ Compensation Board (WCB) Rules Task Force has worked on developing a set of rule proposals since October 2016. These proposed rules will go before the WCB for a vote on April 3, 2018, at which time the formal rule-making process may begin. The following are some highlights: 

Notice to an Out-of-Business Employer (WCB Rules c. 1, § 1-A)

A proposed amendment would provide a claim notice mechanism when an employer is out of business and there is no one connected to the business to receive notice of a claim. The proposed rule provides that an employee can give notice of an occupational disease or injury to the Board when an employer is out of business and its insurer is unknown. Rule 1.1 is not triggered until a claim for benefits is received by the insurer, third-party administrator, or the employer’s self-insurance administrator. As a practical matter, such cases often arise in the occupational disease context where exposure is alleged many years prior to a claim being made.

Fringe Benefit Inclusion in Average Weekly Wage (WCB Rules c. 1, § 5(1)(A)(3))

The proposed amendment would provide that fringe benefits include the employer’s cost to provide pension benefits, including 401(k) matching funds, but excluding 401(k) matching funds which are reduced, but not completely discontinued.

Average Weekly Wage Calculation (WCB Rules c. 1, § 5(2)(C))

The employer/insurer may adjust the average weekly wage once using a WCB-4 within 90 days after making the first lost-time payment on a claim to correct an error. The employee may invoke dispute resolution if the adjustment results in decreased compensation. If greater than 90 days, the employer/insurer must use a WCB-8. This modification gives an employer/insurer one chance to fix an incorrect average weekly wage. However, the change must be made within 90 days of the first indemnity payment. Thereafter, any change must be made through the filing of a WCB-8.

Medical Only Claims: First Report of Injury (WCB Rules c. 3, § 1-A)

The amendment would require First Reports of Injury on medical-only claims. Under the amendment, an employer must complete a First Report (WCB-1) within 7 days after the employer receives notice or knowledge of an injury that requires the services or a health provider but has not caused the employee to lose a day’s work. A copy of the First Report must be sent to the employee and the employer’s insurer within 24 hours after completion.

Section 312 IMEs (WCB Rules c. 4, § 4(1))

A proposed amendment would address who pays for a § 312 independent medical examiner (IME) in an apportionment claim and who pays if there is no apportionment. The proposed amendment provides that, in the event the § 312 exam is scheduled to determine apportionment responsibility between employers, the employer/insurer that requested the exam pays for the exam and report unless otherwise agreed between the parties. If any employee requests the exam, all employers/insurers that are parties to the proceeding must, unless agreed otherwise, split the cost equally.

Reimbursement/Payment Agreements (WCB Rules c. 5, 1.07(6)(E))

A proposed Rule would address a problem the Board is facing with payors who claim a contractual right to pay less than the amount set forth in the fee schedule. Under the proposed rule, if a dispute arises as to whether there is a payment agreement that supersedes the maximum allowable payment otherwise payable, the burden is on the party invoking a payment agreement to provide a written contract within 30 days of a provider’s request. The contract must establish the party’s right to pay an amount different than provided in the Board’s Rules. If the contract is not produced within 30 days of a request, the bill will be subject to the maximum allowable amount.

Payment Procedures (WCB Rules c. 8, § 11(2))

The Board notes that indemnity payments are paid for incapacity. If there is no incapacity, there should be no obligation to pay lost time benefits. With respect to reductions or discontinuances pursuant to 39-A M.R.S.A. § 205(9)(A), under the proposed Rule, an employer may discontinue benefits regardless of the employee’s actual earnings if:

1. The employee is released to return to work without restrictions or limitations due to the injury for which benefits are being paid by the employee’s treating health providers; 
2. There are no conflicting medical records with respect to the lack of restrictions or limitations due to the injury for which benefits are being paid; and 
3. The employee, instead of returning to work, receives vacation pay, “paid time off” its equivalent, or holiday pay instead of regular wages. 

Payment Procedures (WCB Rules c. 8, § 18(1))

A proposed amendment to this Rule would provide that parties will now be able to discontinue benefits during a period covered by a 21-day letter. Under the proposed Rule, “The Consent Between Employer and Employee (WCB-4A) may be used when the parties agree to discontinue or reduce benefits during the 21-day period following the filing of a Certificate of Discontinuance of Reduction of Compensation (WCB-8).”

Coordination of Benefits Paid Pursuant to “Paid Time Off” or Equivalent Plans (WCB Rules c. 9, § 3(2)(2)(A-C))

The Rule would clarify how paid time off is to be treated and coordinated. In particular, proposed section C addresses the way some employers characterize time off and provides a formula for calculating a set-off in those cases. The proposed Rule provides: 

1. Paid time off or equivalent plan means an employer-paid benefit that covers both sick leave and vacation leave. 
2. If a paid time off or equivalent plan designates a specific portion of the benefit as sick leave, an employer/insurer may reduce benefits, as set forth in 39-A M.R.S.A. § 221(3)(A)(2) by the amount designated as sick leave. 
3. If a paid time off or equivalent plan does not designate a specific portion of the benefit a sick leave, an employer/insurer may reduce benefits, as set forth in 221(3)(A)(2), by 25% of the paid time off or equivalent plan payment received by the employee.

Social Security Notice to Employee (WCB Rules c. 9, § 3(D))

A proposed Rule would allow employers to notify an employee if the employee is receiving old age Social Security Benefits.

312 IME Request (WCB Rules c. 12, § 10(1))

A proposed Rule sets forth deadlines for § 207 and § 312 IME requests when a claim is in litigation. The proposed Rule provides:

1. If a § 312 exam has been requested prior to filing of the Joint Scheduling Memo, the parties must state on the memo the date of the request, whether it has been approved by the Board, and, if so, the name of examiner and date of exam. 
2. If a § 207 exam has been requested prior to the filing of the Joint Scheduling Memo, the parties must state on the memo the date of the request, name of examiner, and date of the exam. 
3. If a § 312 exam has not been requested prior to the filing of the Joint Scheduling Memo, a request must be made no later than 30 days from the date of filing. 
4. If a § 207 exam has not been requested prior to the filing of the JSM, a request must be made no later than 30 days from the date of filing. 

Work Search Evidence (WCB Rules c. 12, § 11(1))

A proposed Rule addresses an employee’s obligation when work search evidence is going to be introduced. The Rule provides that no later than 30 days after mediation or the filing of a petition, whichever is later, the employee shall provide the employer with the work search or labor market evidence the employee intends to introduce into evidence. The employee must use a standard Board work search log and include, at minimum, names of prospective employers, dates of application, responses to the application, if any, and whether the application was submitted in person, by mail, electronically, or by some other means.

Surveillance Evidence (WCB Rules c. 12, § 11(4)(A))

A proposed Rule would address the employer’s obligation with respect to surveillance evidence. Under the Rule, the employer must provide all surveillance information to the employee developed since the date of injury, or since the last decree, whichever is shorter, in connection with the claim, and provide an affirmation that all surveillance evidence has been provided. The employer must provide the surveillance to the employee within 14 days after the employer receives the information from the employee, and in no event later than 7 days before hearing.

The Rules will be voted on April 3, 2018. If approved, this will allow the formal rule-making process to begin, which includes review by the Governor’s office, publication of a rule-making hearing, a hearing, comment period, additional Board vote and review by the Attorney General’s Office, and filing with the Secretary of State. Stay tuned for more updates.

Section 207 vs. Section 312: Understanding the Difference

There are key differences between a § 207 exam and a § 312 exam that must be understood to have a proper grasp on medical evaluations under the Maine Workers’ Compensation Act.

A § 207 examination is performed by a doctor chosen by the employer and insurer. The key provision is as follows:

An employee being treated by a health care provider of the employee’s own choice shall, after an injury and at all reasonable times during the continuance of disability if so requested by the employer, submit to an examination by a physician, surgeon, or chiropractor authorized to practice as such under the laws of this State, to be selected and paid by the employer. The physician, surgeon, or chiropractor must have an active practice of treating patients. For purposes of this section, “active practice” may be demonstrated by having active clinical privileges at a hospital. A physician or surgeon must be certified in the field of practice that treats the type of injury complained of by the employee. Certification must be by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association or their successor organizations. A chiropractor licensed by the Board of Chiropractic Licensure who has an active practice of treating patients may provide a second opinion when the initial opinion was given by a chiropractor.

Once an employer selects a health care provider to examine an employee, the employer may not request that the employee be examined by more than one other health care provider, other than a § 312 examiner (more on this below), without prior approval from the employee or an administrative law judge (ALJ). However, this does not limit an employer’s right to request that the employee be examined by a specialist upon referral by the health care provider. Once the employee is examined by the specialist, the employer may not request that the employee be examined by a different specialist in the same specialty, other than a § 312 examiner, without prior approval. The employee has the right to have a physician, surgeon, or chiropractor of the employee’s own selection present at the exam, whose costs are paid by the employer. The doctor’s opinion is not entitled to any special weight.

On the other hand, a § 312 examination is an independent medical examination performed by a doctor appointed by the Maine Workers’ Compensation Board.

The Board maintains a list of health care providers in specific fields of expertise to serve as independent medical examiners from each of the specialties the board finds most commonly used by injured employees. An independent medical examiner must be certified in the field of practice that treats the type of injury at issue. One other important characteristic of the § 312 process is that the parties are to have no direct contact with the § 312 examiner. Rather, the parties are to submit any questions to the examiner and materials through the Board’s Office of Medical and Rehab Services.

Ultimately, an independent medical examiner “shall render medical findings on the medical condition of an employee and related issues. . . . ” The independent medical examiner shall issue a written report stating the examiner’s medical findings on the issues raised by that case and providing a description of findings sufficient to explain the basis of those findings. The Board must adopt the medical findings of the independent medical examiner unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings. The Board shall state, in writing, the reasons for not accepting the medical findings of the independent medical examiner. The Maine Supreme Court has interpreted the clear and convincing evidence to the contrary standard to require a showing “that it was highly probable that the record did not support the [independent medical examiner’s] medical findings” (Dubois v. Madison Paper, Co., 2002 ME 1). Further, where the ALJ adopts the § 312 examiner’s findings, the decision may only be reversed on appeal if the findings are not supported by any competent evidence of the records that shows no reasonable basis to support the decision. This is obviously a very high standard.

Recent Study Finds Women’s Risk of Work Injuries Increased with Depression, Fatigue, Anxiety

Women who suffer from anxiety, depression, and fatigue are at a heightened risk for work injuries, according to a new study led by researchers from the Colorado School of Public Health's Center for Health, Work & Environment and published in the Journal of Occupational and Environmental Medicine. Nearly 17,000 employees, ranging from executives to laborers, were part of the study. Over 300 claims from a range of industries were examined. The study found that these health factors significantly affected women’s risk of injury but not men’s risk. 

According to the study, as a general rule, men were more likely to sustain a work-related injury. However, with men, factors such as poor sleep and anxiety did not directly affect their risk of injury. On the other hand, women were more likely to report experiencing mental and behavioral health issues and these conditions increased their risk of getting hurt on the job. Almost 60% of women with a work injury reported experiencing a behavioral health condition before they were injured, compared to 33% of men.

The study notes that further research is needed to understand these differences. Overall, workers with a history of a work injury were more likely to be injured again, regardless of gender. “There are a number of social and cultural factors that may explain why women reported having more behavioral health concerns than men did. Men generally admit to fewer health concerns,” said Dr. Natalie Schwatka, the study’s lead author. “And women may face different stresses at work and at home. It’s something that is worth exploring in future research.”

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.

Maine’s Insurance Superintendent Approves Decrease in Workers' Compensation Loss Costs; Paves the Way for Lower Premiums

Maine’s Superintendent of Insurance Eric Cioppa recently announced approval of the National Council on Compensation Insurance, Inc.’s (NCCI) 2018 loss costs for Maine, which proposed an average loss cost decrease of 12%. With this approval, the new NCCI loss costs go into effect for new and renewing policies as of April 1, 2018.

NCCI is the advisory rating organization for Maine workers’ compensation insurance companies.

Loss costs are based on previous and projected losses and benefit payments employers are expected to incur. NCCI provides advisory rates for insurance carriers that offer workers’ compensation coverage in Maine. When such insurers file their rate requests with the Bureau of Insurance, NCCI-approved loss costs are available as a reference.

The loss costs change ranges from -10.4% to -15.1% depending on the industry; the 12% decrease represents an average. According to the Bureau of Insurance, because this is an average decrease, rates for some businesses will go up but most will go down. Also keep in mind that the loss cost decrease is only a recommendation; individual insurers may or may not accept the proposed change in loss costs.

“Maine employers’ efforts to improve workplace safety, return injured workers to their jobs in a timely manner, and control medical costs continues to pay off,” Cioppa stated. “This most recent decrease should result in lower workers’ compensation premiums on average across all industry groups.” Cioppa stated that recently filed NCCI loss costs represent a cumulative decrease of 59.5% since the 1992 workers’ compensation reform, and that if all insurers fully adopt the decrease, Maine businesses could save an estimated $27 million in the year following implementation.

MEMIC, Maine’s largest workers’ compensation insurer, will adopt the rate recommendation. MEMIC reports that this amounts to the largest rate reduction in more than 20 years.

Medicare Set Asides in Workers’ Compensation—The Basics

In workers’ compensation settlements, depending upon the status of the injured worker, interests of Medicare must be protected. If an injured employee has a reasonable expectation of becoming or is a Medicare beneficiary at the time of settlement of the medical portion of a claim, Medicare is considered to be a “secondary payer.” In the event of the settlement of the medical portion of a claim, some settlement funds must be allocated to bills Medicare has paid on behalf of an injured worker. As well, because Medicare is a “secondary payer,” the parties must allocate enough funds to cover future medical expenses related to a work injury before Medicare pays for any bills related to a work injury.

A Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) is an agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury. Funds placed in a WCMSA must be depleted before Medicare will pay for treatment related to the workers’ compensation injury, illness, or disease.

Funds are either placed in the WCMSA account in one lump-sum or the account is funded with a “structured settlement annuity.” Either way, the administrator of the WCMSA may only use the funds to pay for medical care related to a work injury, leaving Medicare free to cover medical expenses unrelated to the work injury.

There is no provision requiring that a WCMSA proposal be submitted to the Center for Medicare & Medicaid Services (CMS) for review. However, submission of a WCMSA is recommended. Doing so ensures that Medicare will pay for future covered expenses down the road in excess of the approved MSA amount. That being said, CMS will not review every proposal. CMS will only review new WCMSA proposals that meet the following criteria:

• The claimant is a Medicare beneficiary and the total settlement amount is greater than $25,000.00; or
• The claimant has a reasonable expectation of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages is expected to be greater than $250,000.00 

Once the MSA is implemented, Medicare will not pay for medical expenses related to the injury until after all set-aside money has been used properly. Thereafter, Medicare can start paying for items and services related to the work injury. 

Please note that CMS recently created an MSA re-review process. Effective July 31, 2017, submitters can submit a re-review request where CMS has provided an approved amount, but settlement has not occurred and the medical care that supported the approved amount has changed substantially. This process is not available in all situations. For starters, (1) the MSA must have been originally submitted between 1 – 4 years from the date of the re-review request; (2) the re-review must result in at least a 10% or $10,000 change (whichever is greater) from the previously approved amount.

Maine Workers’ Compensation Board Issues 2018 Annual Report

The Maine Workers’ Compensation Board (WCB), in conjunction with the Superintendent of Insurance and the Director of the Bureau of Labor Standards, has issued its 2018 Annual Report on the Status of the Maine Workers’ Compensation System. The report can be found online at: http://www.maine.gov/wcb/Departments/administration/troika.html.

The Report notes that dispute resolution continues to perform well. Compliance with the Workers’ Compensation Act is generally high. Claim frequency and compensation rates are stable. The Report states that the WCB, over time, has transitioned from an agency with a primary focus on dispute resolution to one which provides effective regulation and improved compliance and functions as an advocate for both injured workers and the employers for whom they work. 

There are signs of improvement from a financial perspective. Not long ago, Maine was one of the costliest states in the nation for workers’ compensation. According to the Report, Maine’s status has improved when compared to other jurisdictions requiring workers’ compensation. It has moved from one of the most expensive states in the nation to one that is in the average range for premiums and benefits. As an aside, the report notes that some national reports comparing Maine to other jurisdictions continue to fail to account for the very high percentage of Maine employers who are self-insured—about 40%. This is much higher than most states. When comparisons are made on a national basis, they do not account for the self-insured community and, as such, these comparisons do not give an accurate picture of the Maine workers’ compensation market. 

The Board continues to focus on controlling medical costs through the Medical Fee Schedule. In 1992, the Legislature mandated the adoption of a Medical Fee Schedule to help contain healthcare costs within the system. However, it was not until 2011 that one was implemented. The Report highlights the progress Maine has made in controlling medical costs when it adopted a medical facility fee schedule in 2011 and in updating all medical fees each year thereafter. 

The Board continues to strive to address the problem of employee misclassification and is also monitoring the national and state opioid crisis. 

Despite the generally positive trends, the Report does note that more can be done to improve Maine’s workers’ compensation system. Some difficult issues the Board has addressed—and continues to address—include:

• Administrative law judge appointments
• Electronic filing mandates
• Budgetary and assessment matters
• Rule revisions
• Form revisions
• Compliance issues
• Independent medical examiner recruitment and retention
• Workers' advocate resources
• Dispute resolution
• Increases in compliance benchmarks
• Independent contractor predetermination and assessment
• Medical fee schedule updates
• Data gathering and employee misclassification 

Overall, the Report is generally positive. According to the Board’s Executive Director, Paul Sighinolfi, the factors discussed in the Report are “evidence of the Maine workers’ compensation system’s gradual and continued improvement for both injured employees and the business community.”

Potential New Legislation in Maine Touches Issue of Volunteer/Employee Distinction in Maine Workers’ Compensation

Through LD 958, Maine is considering enacting the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA). 

The UEVHPA is model legislation developed in 2006. During declared emergencies, states enacting the model UEVHPA recognize the licensure of physicians and health practitioners in other states if those professionals have registered with a certain registration system. The UEVHPA allows those professionals to come into a state and provide services without having to obtain a license in the state where the emergency has been declared. 

Among other things, the UEVHPA addresses workers’ compensation coverage, providing these volunteers state employee status for workers’ compensation purposes. The UEVHPA provides:

(b) A volunteer health practitioner who dies or is injured as the result of providing health or veterinary services pursuant to this [act] is deemed to be an employee of this state for the purpose of receiving benefits for the death or injury under the workers’ compensation [or occupational disease] law of this state if:

(1) the practitioner is not otherwise eligible for such benefits for the injury or death under the law of this or another state; and 

(2) the practitioner, or in the case of death the practitioner’s persona; representative, elects coverage under the workers’ compensation [or occupational disease] law of the state by making a claim under that law.

Comments to the UEVHPA provide that “some level of benefits should be provided to volunteer health practitioners by the state benefiting from their services.” 

The model UEVHPA, as drafted, may work for some states. However, adoption of the UEVHPA without modification in Maine presents certain conflicts. A significant issue is that these individuals are volunteers, and Maine law finds volunteers not to be covered under workers’ compensation. See Harlow v. Agway, 327 A.2d 856, 859 (Me. 1975) (“An essential element in creating an employer-employee relationship, and consistent with the purposes for which the Work[ers’] Compensation Act was enacted, is payment, or expected payment, of some consideration by an employer to an employee, thus excluding from coverage purely gratuitous workers who neither receive, nor expect to receive, pay or other remuneration for their services.”). 

The model UEVHPA as written is at odds with longstanding Maine workers’ compensation law. A handful of other states which, like Maine, also exclude volunteers from workers’ compensation coverage have offered carve outs for the workers’ compensation coverage provision. Time will tell whether Maine will follow suit if this legislation is adopted. As a practical matter, it seems Maine would likely follow the other states, which also exclude volunteers from workers’ compensation coverage. This would allow this legislation to peacefully coexist with longstanding Maine law.

Permanent Impairment and the 18% Threshold – What It Means and What to Expect in the Coming Years

Permanent impairment has been in the news in recent months. With the Law Court’s decision in Bailey v. City of Lewiston (2017 ME 160), it has held that an established permanent impairment rating is not subject to revision, even in the face of changed medical circumstances. In Somers v. S.D. Warren Co. (Maine Workers’ Comp Board [WCB] App. Div. No. 17-38 [November 13, 2017]), the Appellate Division held that the WCB may not revise a previously established permanency rating in an upward manner.

With the recent focus on permanent impairment, it is worth addressing the current permanency threshold and what it means for ongoing benefits.

Permanent impairment is “any anatomic or functional abnormality or loss existing after the date of maximum medical improvement that results from the injury” (39-A M.R.S.A. § 102). Maximum medical improvement is defined as, “the date after which further recovery and further restoration of function can no longer be reasonably anticipated, based upon reasonable medical probability.”

For injuries on or after January 1, 1993, permanent impairment no longer means additional benefits for an injured worker, but it plays a significant role in determining how long partial incapacity benefits can be received (the level of permanent impairment does not come into play for total incapacity benefits, which must be paid for the duration of disability).

If permanent impairment is below the applicable threshold, injured workers may not receive partial benefits beyond 520 weeks. However, if permanent impairment exceeds the threshold, benefits may continue for the duration of disability.

The permanent impairment threshold for injuries is as follows:

• Injuries from January 1, 1993, to December 31, 1997, the threshold is 15%
• Injuries from January 1, 1991, to December 31, 2001, the threshold is 11.8%
• Injuries from January 1, 2002, to December 31, 2003, the threshold is 13.2%
• Injuries from January 1, 2004, to December 31, 2005, the threshold is 13.4%
• Injuries from January 1, 2006, to December 31, 2012, the threshold is 12%

For injuries on or after January 1, 2013, if, at 520 weeks, the partially incapacitated employee is working, earning 65% or less of his average weekly wage, and permanent impairment attributable to the injury is “in excess of 18%,” partial incapacity benefits may be required beyond 520 weeks so long as the employee continues to work and earn less than his average weekly wage. Regardless of the extent of permanent impairment or level of earnings, partial incapacity benefits may be extended beyond 520 weeks if the employee proves “extreme financial hardship due to inability to return to gainful employment.”

We are just over five years into a new permanent impairment threshold. In less than five years, those employees with injuries in early 2013 will be involved in litigation over cessation of benefits. The changes for injuries on or after January 1, 1993, will not begin to have a major impact until approximately 2022 or 2023, when the first group of employees with 2013 injuries will be involved in litigation over permanent impairment and cessation of benefits. Still, the threshold has an immediate impact when valuing cases for settlement purposes and planning for the future. Expect to see increased instances where individuals claim financial hardship, or continuing cases where employees try to allege they have 18% or more whole person permanent impairment. With this increased permanency threshold, generally only more serious injuries and/or injuries involving permanency from a psychological sequela will exceed the threshold.

Recent Appellate Division Cases: Benefits Reduction Due to Erroneous Calculations, Improper Communications with § 312 Examiner

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.

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.

Maine Supreme Court to Address "Tolling"of Statute of Limitations in Successive Injury Case

On November 14, 2017, the Maine Supreme Court will hear oral argument in the case of Flanagin v. Maine Department of Inland Fisheries & Wildlife. This case deals with the concept of “tolling” of the statute of limitations. Under Maine law, “the limitations period for a claim is tolled if payments made by the employer or insurer or a subsequent injury were made with ‘contemporaneous notice’ that the payments ‘were for treatment that was in part necessitated by’ the earlier injury.” Leighton v. S.D. Warren Co., 2005 ME 111. The “contemporaneous notice” issue arises from a concern that an employer may not have exclusive control, through its claim handling practices, over the assignment of dates of injury to a claim that may eventually have an impact upon the tolling or application of the statute of limitations in successive injury cases. 

Leighton held that an employer bears the burden of establishing the date of latest payment for the original injury, “but that the burden shifts to the employee to establish that the statute of limitations has been tolled through contemporaneous notice.” As the Appellate Division stated, “[i]t is through this explicit burden-shifting mechanism that an employer’s exclusive ability to assign incapacity or medical payments to a date of injury can be questioned and tested.” In Leighton, the Law Court noted that an employee could satisfy this burden by:

for example, submitting medical records that attribute the onset of new symptoms at least in part to the prior injury, along with evidence that the insurer or employer had been made aware of the contents of the records at the time payments were made. Or, the employee could submit proof that he or she had asserted a belief to the employer at the time payments were being made that the older injury is at least in part responsible for the later incapacity.

Turning to the facts of Flanagin, on July 31, 2014, the Appellate Division of the Workers’ Compensation Board found the employee entitled to workers’ compensation benefits on account of an injury sustained in 1975 while working for the Department of Inland Fisheries and Wildlife (the “Department”). It rejected the Department’s contention that the ALJ erred in finding it had “contemporaneous notice” within the limitations period sufficient to toll the statute of limitations on a 1975 injury. The Appellate Division found the Department had contemporaneous notice within the 10-year statute of limitations and that payments made on a 1979 injury were related to a 1975 injury.

The Appellate Division found that the Law Court cases, taken together, “endorse as sufficient a relatively low threshold to meet the employee’s burden to establish the causative relationship.” Therefore, “the employee must show that the earlier injury ‘contributed in some part’ to the later incapacity or need for medical treatment, or that medical treatment after the later injury was ‘in part necessitated by’ the earlier injury. An employee may also, alternatively, demonstrate that he or she informed the employer that the earlier injury was still in play at the time of the payments. This is not the same standard as may be required to establish medical causation in a contested workers’ compensation claim. Instead, it is a “somewhat lower ‘connection’ standard that is unique to the circumstances inherent in determining whether the employer’s unilateral assignment of dates of injury in successive injury cases is, or is not, correct.”

With respect to the 1975 injury at issue, the Appellate Division found “the [ALJ] raised the legal bar to a height not required by [Law Court precedent.]” According to the Appellate Division, a 1989 report conveyed the necessary information to the Department to meet the employee’s burden with respect to the 1975 injury and was sufficient to establish contemporaneous notice as a matter of law. As the Appellate Division pointed out, the 1989 report did “more than merely recite the history of [the employee’s] low-back problems, but it indicates that the employee reported to the physician in 1989 that the 1975 injury was his “major back injury” and that he still had the same complaints of low-back pain and left leg pain in 1989 that he had in 1975.

In other words, the doctor’s clinical examination demonstrated that the then-current diagnosis of chronic low-back pain started with the 1975 injury and remained unchanged over the years despite two surgical procedures. The Appellate Division found this was “sufficient to establish a ‘partial attribution’ or contribution in part of the 1975 injury to then-current symptomology.” As well, the report also sufficiently demonstrated that the later-in-time treatment was partially necessitated by the earlier injury. In addition, the Appellate Division also found that the 1989 report satisfied the alternative manner of providing contemporaneous notice: assertion of a belief by the employee at the time payments were being made and within the 10-year window that the older injury was in part responsible for the later incapacity and treatment.

On remand, the ALJ found the employee had proven that the Department had been put on notice that medical treatment for a 1979 work injury implicated the 1975 injury.

The Department appealed to the Law Court, arguing that the Appellate Division erred by determining that there was a tolling of the applicable statute of limitations and upholding an award of benefits that includes incapacity for a date of injury barred by the statute of limitations.

This is one of several workers’ compensation cases the Law Court has accepted for appellate review this year.

Appellate Division to Revisit (for a Second Time) the Issue of Refusal of Suitable Work in St. Louis V. Acadia Hospital

In St. Louis v. Acadia Hospital Corp., WCB No. 10002460 (April 14, 2017), the Maine Workers’ Compensation Board issued a decision dated March 4, 2015, finding the Employee had not refused an offer of suitable work and awarded partial incapacity benefits reduced by an imputed earning capacity of $300.00/week. The Employer appealed to the Appellate Division. A decision issued January 12, 2017, St. Louis v. Acadia Hospital Corp., App. Div. 17-3 (January 12, 2017), ordered that the case be remanded for a more complete analysis of whether the Employee unreasonably refused a bona fide offer of reasonable employment within the meaning of 39-A M.R.S.A. § 214(1)(A). 

The Employee worked as a certified nursing assistant (CNA) at Acadia Hospital. She was injured January 29, 2010. On account of this injury, the Employee experiences post-concussive headaches and an anxiety disorder with features of post-traumatic stress disorder. Because of her symptoms, she stopped working for the Employer August 6, 2013. She began a work search in February 2014 and found a part-time cashier position beginning February 10, 2014. The Employer sent the Employee a job offer on February 6, 2014, offering full-time work as a telephone operator and receptionist with a provision that the Employee would not be working in a patient care area or asked to be involved in restraining patients. This position paid approximately $12.00 per hour, while her position as a cashier paid $8.00 per hour. The Employee declined the offer because she had already accepted a new job as a cashier. The Employee testified that she was also concerned that, despite assurances, she still may have contact with patients through incidental activities like eating lunch. The Employer presented testimony from a human resources representative that the position offered was in a secured area inaccessible to patients and that the Employee was not required to take breaks or eat meals in areas with patients.

The Employee saw Drs. Carlyle Voss and Karyn Woelflein for independent medical examinations (39-A M.R.S.A. § 312). Dr. Voss found she, “could manage the basic duties of [a telephone] operator” and “could do similar work in another setting where there is low risk for being assaulted[,]” but “would be at significant risk to have symptoms escalate which could cause impairment that would preclude any type of work if she returned to work at Acadia or in another setting where there is increased risk for assaults.” Dr. Woelflein stated, “it would be imprudent for [her] to return to work at Acadia.”

The Employee argued that her refusal of the job offer was reasonable because she had already found work within her restrictions at a new employer and that the offered position was beyond her medical limitations. The Employer argued that the offer was reasonable as it was made only a few days after she began working for a new employer, paid higher, and was within her medical limitations. The Employer argued that § 214(1)(A) barred an award of partial incapacity benefits.

On the issue of refusal of suitable work, the Employer bears the burden of persuasion. In general, if an injured worker “receives a bona fide offer of reasonable employment” and the employee “refuses that employment without good and reasonable cause,” that employee is barred from receiving incapacity benefits under the Workers' Compensation Act “during the period of the refusal.” 39-A M.R.S.A. § 214(1)(A). The term, “reasonable employment” means “any work that is within the employee's capacity to perform that poses no clear and proximate threat to the employee's health and safety and that is within a reasonable distance from that employee's residence.” 39-A M.R.S.A. § 214(5).

When applying § 214, an administrative law judge (ALJ) “is required to undertake a two-part analysis, reviewing both the employer's actions in making the job offer and the employee's actions in declining that offer.” Thompson v. Claw Island Foods, Inc., 1998 ME 101, ¶ 7. When evaluating an employee's decision to decline a job offer, an ALJ must determine first whether the offer was a “bona fide offer of reasonable employment.” Id. The factors to consider include “whether the work falls within the employee's work capacity, whether it poses a threat to the employee's health and safety, and whether it is within a reasonable distance of the employee's residence.” Id. ¶ 8. Second, an ALJ must determine whether the employee refused that offer without “good and reasonable cause.” Id. ¶ 16. The reasonableness of the refusal is a broad inquiry; an ALJ “must consider all facts relevant to the employee's decision to decline the job offer.” Id. The Law Court has provided some guidance to this inquiry with a five factor test that is “not intended to be exhaustive or conclusive” but “represent[s] a sound general framework for decision making when the employee has refused an offer of reasonable employment:” (1) the timing of the offer, (2) if the employee has moved, the reasons for moving, (3) the diligence of the employee in trying to return to work, (4) whether the employee has actually returned to work with some other employer and, (5) whether the effort, risk, sacrifice or expense is such that a reasonable person would not accept the offer. Id. at ¶¶ 18, 19. 

Among other things, the ALJ found the position offered pays significantly higher than the work the Employee found on her own, but would have required her to abandon the cashier's position shortly after committing to it. Further, the ALJ found significant the medical opinions of Dr. Voss and Dr. Woelflein, which bear on her ability to return to work for the Employer. The ALJ found the Employer had not met its burden to prove that the Employee refused the offered job without good and reasonable cause. The Board granted the Employee’s Petitions for Award, in part, with an ongoing award of partial incapacity benefits reduced by an imputed earning capacity of $300.00/week. The matter is on appeal once again before the Appellate Division. 

Refusal of suitable work has generated a lot of decisions from the Appellate Division to date. This is due to the very fact-specific nature of these cases, particularly when it comes to the multifactor tests used in assessing a refusal defense. In this case, the binding medical evidence and the fact that the employee had already secured work before the offer was made were significant factors for the ALJ.

Workers’ Compensation Board Appellate Division to Review Decision Dealing with Burden of Production and Proof Under the § 327 Death Presumption

Continuing with the case of Flaherty v. City of Portland, WCB Nos. 05032057 & 11036148 (June 22, 2017) from the previous post, the Board found the § 327 death presumption applied to the claims filed by Mrs. Flaherty under the traditional (non-occupational) Act. The Board found this presumption shifts the burden of proof to the Employer to demonstrate the nonexistence of the presumed fact. In other words, the Employer must demonstrate, on a more likely than not basis, that the decedent’s cancer did not arise out of or in the course of his employment.

The issue of burden-shifting under the § 327 presumption has been addressed quite a bit in recent times. In LaValle v. Town of Bridgton, Me. WCB App. Div. No. 15-13 (April 10, 2015), the ALJ applied § 327 by shifting the burden of proof to the employer to negate the facts established by the presumption. The Appellate Division affirmed. In Estate of Sullwold v. Salvation Army, 2015 ME 4, the Law Court addressed the application of § 327 and held that the Appellate Division in Estate of Sullwold, Me. WCB. App. Div. No. 13-3 (November 8, 2013), did not erroneously shift the burden of persuasion to the employer, but appropriately applied the standard articulated by the Law Court long ago in Toomey v. City of Portland, under which once an employer produces evidence sufficient to overcome the presumption of work-relatedness, the presumption disappears and the estate must then meet its burden of proof to prevail. However, in a footnote to the decision, the Law Court declined to reach the issue of whether the Appellate Division’s interpretation of § 327 is correct. In LaValle, the Appellate Division relied on Estate of Sullwold, Me. WCB. App. Div. No. 13-3, and held that to defeat the presumption, an employer must prove it is more probable than not that the injury did not arise out of and in the course of employment. In LaValle, rather than merely placing a burden of production on the employer, the Appellate Division placed on the employer the burden of proving the nonexistence of a presumed fact, making for a rather unclear decision in light of the Law Court’s ruling in Estate of Sullwold, 2015 ME 4.

In any event, the Employer was tasked with the burden of proving that the death was not related to employment. In order to rebut the presumption, the Employer presented evidence from Dr. Harbison, a toxicologist. Dr. Harbison was critical of Dr. Oliver's conclusions regarding the causal connection between Mr. Flaherty's work and his cancer. Dr. Harbison found: 

1. There is insufficient scientific evidence supporting the proposition that firefighters are exposed to levels of benzene that are harmful; and 
2. There is inadequate scientific evidence to support the proposition that benzene causes myelofibrosis. 

The Board was not persuaded by Dr. Harbison's analysis that it is more probable than not that Mr. Flaherty's myelofibrosis was not related to his employment as a firefighter because, among other things, his findings regarding exposure and causation were based on a paradigm of proof inconsistent with the applicable “more probable than not” standard traditionally used in Maine workers’ compensation cases. 

The Petitions for Award – Occupational Disease Law filed by Ms. Flaherty in her role as personal representative and as widow were denied insofar as those petitions allege claims under the Occupational Disease provision of the Act. Those petitions were granted, however, with respect to the claims made under the traditional worker's compensation Act. The employer was ordered to pay 500 weeks of benefits under § 215.