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.

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 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.

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.”

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.

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.

Workers’ Compensation Board Appellate Division to Review Decision Dealing with Application and Scope of § 327 Death Presumption

In Flaherty v. City of Portland, WCB Nos. 05032057 & 11036148 (June 22, 2017), Timothy Flaherty worked for years as a Portland firefighter. He was diagnosed with myelofibrosis, a rare cancer/disease of the bone marrow in August 2004. Mr. Flaherty retired from the fire department on February 28, 2005. He died from myelofibrosis on August 30, 2011.

Pending before the Board were two Petitions for Award – Occupational Disease Law, filed by Theresa Flaherty. The first petition was filed in Ms. Flaherty’s role as personal representative of the estate of Timothy Flaherty. The second petition was filed in her role as a dependent of Timothy Flaherty. Mrs. Flaherty alternatively claimed entitlement to incapacity and death benefits under the “traditional” (non-occupational) provisions of the Maine Workers’ Compensation Act. 

The petitions alleged that Mr. Flaherty's cancer was caused by occupational exposure related to his work as a firefighter. Mrs. Flaherty claimed entitlement to the benefit of the death presumption set forth in § 327 of the Act. The “death presumption” provides:

In any claim for compensation, when the employee has been killed or is physically or mentally unable to testify, there is a rebuttable presumption that the employee received a personal injury arising out of and in the course of employment, that sufficient notice of the injury has been given and that the injury or death was not occasioned by the willful intention of the employee to injure or kill the employee or another. 39-A MRSA § 327. 

Among other things, the employer argued the presumption did not apply because Mr. Flaherty was not unable to testify during the period between his cancer diagnosis and date of death. However, the Board found Mr. Flaherty had no reason to file a claim or otherwise testify concerning his potential exposure until it was discovered that there was a potential causal connection between his cancer and the conditions of his employment. Thus, Mr. Flaherty was “unable to testify” as of the date that potential connection was discovered (June 2012). The Employer also argued that the presumption was inapplicable because Mr. Flaherty was not killed, nor did he die, during the course of his employment. However, the Board found nothing in the language of § 327 that limits the presumption to the period of employment. In addition, § 327 has often been applied to cases where the employee has left employment. 

The Board noted, “[w]hether the presumption arises is determined based on the evidence actually presented and ‘testimony which, within reasonable limits, may be conceived as potentially forthcoming from the employee were the employee available as a witness.’ Therefore, the presumption is properly invoked if the evidence presented to the hearing officer, combined with any facts to which Sullwold may reasonably have testified if he were alive, could rationally result in an award of compensation.” Sullwold v. Salvation Army, 2015 ME 4, ¶ 9, (citing Toomey v. City of Portland, 391 A.2d 325 (Me. 1978)). In this case, the Board found that, if alive, Mr. Flaherty could have provided testimony concerning the nature and scope of his exposure to benzene. The Board found that such testimony, in combination with expert testimony in the record, could rationally result in an award of compensation. Thus, it is presumed that Mr. Flaherty received a “personal injury arising out of and in the course of his employment, and that sufficient notice has been given....” 39-A MRSA § 327.

The Board found Mr. Flaherty suffered a work-related injury in the nature of myelofibrosis as of February 28, 2005. 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 alleged 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. 

The case is on appeal before the Workers’ Compensation Board Appellate Division. Among other things, at issue on appeal is the applicability of the death presumption, the burdens of production and proof under the presumption and the interplay between the Occupational Disease provisions in the Act and the traditional Act provisions.

New Legislation Provides for Right to Benefits to Employees Participating in Vocational Rehabilitation, Limited Exceptions for Insurers to Reduce Benefits

The Maine Workers’ Compensation Act provides, “[w]hen as a result of injury the employee is unable to perform work for which the employee has previous training or experience, the employee is entitled to such employment rehabilitation services, including retraining and job placement, as reasonably necessary to restore the employee to suitable employment.” Further, “[i]f employment rehabilitation services are not voluntarily offered and accepted, the board on its own motion or upon application of the employee, carrier or employer, after affording the parties an opportunity to be heard, may refer the employee to a board-approved facility for evaluation of the need for and kind of service, treatment or training necessary and appropriate to return the employee to suitable employment. . . .” 

Through October 31, 2017, § 217 provides:

8. Presumption. If an employee is participating in a rehabilitation plan ordered pursuant to subsection 2, there is a presumption that work is unavailable to the employee for as long as the employee continues to participate in employment rehabilitation.

In Axelsen v. Interstate Brands Corp., App. Div. No. 15-27 (October 22, 2015) the Workers’ Compensation Board Appellate Division found the presumption in § 217(8) is rebuttable. The employer can seek to rebut the presumption and establish the employee’s extent of incapacity is less than 100% while a Board-ordered vocational rehabilitation plan is in effect by proving that work is available through labor market evidence.

LD 612 (“An Act To Improve Vocational Rehabilitation under the Maine Workers’ Compensation Act of 1992”) will become effective November 1, 2017. The new legislation repeals § 217(8) and enacts § 217(9) which states:

9. Reduction of benefits. If an employee is actively participating in a rehabilitaion plan ordered pursuant to subsection 2, benefits may not be reduced except:

A. Under section 205, subsection 9, paragraph A, upon the employee’s return to work with or an increase in pay from an employer who is paying the employee compensation under this Act; 

B. Under section 205, subsection 9, paragraph B, based on the amount of actual documented earnings paid to the employee; or 

C. When the employee reaches the durational limit of benefits paid under section 213. 

The new legislation repeals the presumption in the current law with respect to an injured employee participating in employment rehabilitation that work is unavailable to the employee. In place of the presumption, the new legislation enacts a new provision which provides that an injured employee participating in vocational rehabilitation has a right to benefits except under only three circumstances where benefits may be reduced:

1. when the employee has returned to work with or received an increase in pay from the employer; 
2. when the employer has reduced benefits based on actual documented earnings of the employee; and 
3. when the employee has reached the durational limit on partial incapacity benefits 

Under the new legislation, there is no requirement that benefits be returned to the total rate if an employee has already been reduced to a partial rate, but benefits may not be reduced further except under the limited circumstances above.

Appellate Division Addresses Adequacy of Findings of Fact for Appellate Review

Under§ 318 of the Maine Workers’ Compensation Act:

. . . From the evidence or statements furnished, the administrative law judge shall in a summary manner decide the merits of the controversy . . . . The administrative law judge, upon the motion of a party made within 20 days after notice of the decision or upon its own motion, may find the facts specially and state separately the conclusions of law and file the appropriate decision if it differs from the decision filed before the request was made. Those findings and conclusions and the revised decision must be filed in the office of the board and a copy, attested by the clerk of the board, must be mailed promptly to all parties interested. . . .

When requested, an ALJ is under an affirmative duty to make additional findings to create an adequate basis for appellate review. Coty v. Town of Millinocket, 444 A.2d 355, 357 (Me. 1982).

If an employee requests additional findings of fact and conclusions of law under § 318 and submits proposed additional findings, the Appellate Division must not assume the ALJ made all necessary findings to support its conclusion(s). In such case, the Appellate Division reviews the original findings and any additional findings made in response to a motion for findings to determine if they are sufficient, as a matter of law, to support the result and if they are supported by record evidence. 

In Bisco v. SD Warren, WCB App. Div. No. 17-30 (September 22, 2017) an employee appealed a decision partially denying his Petition for Restoration, arguing that he proved a change in both medical and economic circumstances beyond a brief period awarded by the ALJ. In order to prevail upon a petition for restoration, the employee must demonstrate a change in circumstances sufficient to justify the restoration of compensation. This is typically done through proving a change in medical or economic circumstances.

Because the employee requested additional findings of fact and conclusions of law and submitted proposed additional findings, the Appellate Division must not assume the ALJ made all necessary findings to support the conclusion that the employee did not experience either changes of economic or medical circumstances beyond the limited period surrounding his surgery. 

The Appellate Division found the ALJ simply concluded that the employee had now shown a change in economic circumstances but did not specifically address this evidence or explain why this was insufficient to demonstrate a change in economic circumstances. The Appellate Division noted that the employee requested and submitted a proposed finding on the issue of whether increased pain due to the inability to take ibuprofen constitutes a change in medical circumstances that would justify revisiting the 2011 payment scheme beyond a recovery from surgery. The ALJs original findings do not address this issue and the Appellate Division found “some tension between his finding on the former effectiveness of ibuprofen and his conclusion that there had been no change of medical circumstances since the 2011 decree, except during the acknowledged closed-end period.” 

The case was remanded to the ALJ to make additional findings as to whether the employee’s failed effort to regain pre-injury earnings after the 2011 Decree constitutes a change of economic circumstances and whether the employee’s inability to control his symptoms with ibuprofen constitutes a change of medical circumstances.

The bottom line: When requested, an ALJ is under an affirmative duty under § 318 to make additional findings to create an adequate basis for appellate review. This case demonstrates the importance of adequate findings and the potential consequences on appeal without such findings. This is particularly important in the context of Petitions for Restoration or Review in which changed circumstances must be demonstrated, which is often a very fact-specific exercise.

Maine Supreme Court Case Involving Dispute Over Volunteer vs. Employee Status Could Have Far-Reaching Implications

Under the Maine Workers’ Compensation Act (§ 102(11)(A)), an “employee” is “every person in the service of another under any contract of hire, express or implied, oral or written.”

Generally, volunteers are not covered under the Workers’ Compensation Act. In Harlow v. Agway, Inc., 327 A.2d 856 (Me. 1974), the Law Court held that “[a]n essential element in creating an employer-employee relationship, and consistent with the purposes for which the [Act] was enacted, is payment, or expected payment, of some consideration by an employee to an employee, thus excluding from coverage purely gratuitous workers who neither receive, nor expect to receive, pay or other remuneration for their services.” In Closson v. Town of Southwest Harbor, 512 A.2d 1028 (Me. 1986), an individual who had applied for general assistance was injured while participating in the program’s work requirement. The Law Court found that because a participant in the program neither received nor could have expected to receive remuneration or wages for the services he performs, no employment relationship existed.

On October 12, the Maine Supreme Court heard oral arguments in the case of Huff v. Regional Transportation Program. At issue is whether an individual can be an “employee” for workers' compensation purposes even when treated as a volunteer by a nonprofit organization. 

In Huff v. Regional Transportation Program, Me. WCB App. Div. No. 16-40 (November 15, 2016), in 2011, an employee became a volunteer driver from the Regional Transportation Program (RTP), a nonprofit that provides elderly transportation. In conjunction with serving in this position, the employee signed a memorandum of understanding stating he was a volunteer. He also used his own vehicle to drive people around. The individual was reimbursed for expenses by RTP at the IRS employee reimbursement rate of 41 cents per mile. He generally received $700-$800/week in reimbursements. In 2012, the employee was involved in an accident while driving for RTP. He brought a claim for workers’ compensation benefits as an RTP employee, which the Workers’ Compensation Board (WCB) denied, finding he was a volunteer. 

The WCB Appellate Division affirmed the Board’s decision. The Appellate Division rejected the individual’s contention that the $0.41 per mile that the driver received as reimbursement constituted remuneration. The Appellate Division also rejected the argument that the $0.41 reimbursement rate is an IRS rate specifically set for employees, noting that provisions of the tax code do not dictate interpretations of the Workers’ Compensation Act. Because the individual’s services were without remuneration, he was not an employee under the Act. The Appellate Division found this case distinguishable from Harriman v. EMK, 1998 Me. Super. LEXIS 58 (Mar. 13, 1998), in which a volunteer, in exchange for services, was allowed to ski at any time without charge, received free beverages and was able to earn free ski passes for friends based on number of hours she worked. The key difference was that, in Harriman, that individual did not provide services on a purely gratuitous basis, but exchanged her services for valuable remuneration that was not fixed.

The decision may have significant implications for nonprofit employers.

Appellate Division Revisits Retirement Presumption in Various Contexts

Under the “retirement presumption” (§ 223 of the Maine Workers’ Compensation Act), an employee who terminates active employment and is receiving nondisability pension or retirement benefits is presumed not to have a loss of earnings as the result of a compensable injury or disease. This presumption may be rebutted only by evidence that the employee is medically totally incapacitated.

By way of background, the Maine Supreme Court has found, “[t]he retiree presumption is designed to assist fact-finders in determining when an employee who has reached or neared the conclusion of his or her working career will remain eligible to receive workers’ compensation benefits.” Downing v. Dep’t of Transp., 2012 ME 5. In Cesare v. Great N. Paper Co., 1997 ME 170, the employee announced an intention to retire early and was on the cusp of retirement when he sustained a new work injury. Due to the effects of the new work injury, he went out of work voluntarily before his retirement date; he was not working on the day he retired. The Court held that because he was not working as a result of a work-related injury, Cesare did not terminate active employment on 2/1/87.

“The fact that an employee has announced an intention to retire, or requested the necessary paperwork, or applied for retirement, does not affect the status of the employee as actively employed until the effective date of retirement. The presumption did not apply. The Cesare Court distinguished Bowie v. Delta Airlines, 661 A.2d 1128 (Me. 1995) where the employee argued that because he was working light-duty at the time of retirement, he was not actively employed for purposes of § 223. The Maine Supreme Court rejected this argument, holding that the phrase “active employment” is usually understood to mean one who is actively on the job and performing the customary work of his job.

In Perry v. Meadwestvaco, WCB App. Div. No. 17-29 (September 13, 2017) the employee appealed a decision denying his Petitions for Restoration due to the “retirement presumption.” The Appellate Division found the ALJ’s application of the retirement presumption was not erroneous. Although the employee was not performing the same duties of the job he held at the time of his original work injury, he performed the customary duties of his job, with restrictions, for many years until retirement. The Appellate Division found this work constitutes “active employment” for purposes of the presumption. The Appellate Division went one step further and noted, as an aside, that the employee did not prove that he had been working under duress or that he was unable to perform work suitable to his qualifications; two avenues which may offer relief from the retirement presumption if proven.

This is not the first decision this year from the Appellate Division dealing with the retirement presumption. In Wing v. NewPage, WCB App. Div. No. 16-5 (March 7, 2016) the Appellate Division applied the retirement presumption because the employee continued working, albeit light-duty, up to the date of retirement from active employment. In Hallock v. NewPage, WCB App. Div. No. 16-6 (March 7, 2016) the Appellate Division found the presumption applied where an employee had used accrued vacation time leading to a retirement date. In Casey v. NewPage, WCB App. Div. No. 16-9 (March 22, 2016), the Appellate Division found the presumption applied because the employee was actively employed at the time of retirement despite her claim that she retired because she was working with restrictions for financial reasons despite her injuries, which constituted coercion by the employer.

Expect more litigation on the retirement presumption in light of the fact-specific nature of workers’ compensation matters and the ever-changing law. The Appellate Division suggests that under the right facts (i.e. duress or an inability to perform work suitable to ones restrictions) the presumption may not apply. Time will tell whether the Appellate Division addresses an appeal with these facts in the future. For now, it is clear that as long as an employee is working in some capacity up until a retirement date, this is sufficient to trigger the presumption.