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.”