Are you Properly Discontinuing Workers’ Compensation Benefits in Maine? Read on to Find out.

Under Section 213 of the Maine Workers’ Compensation Act, employees are entitled to up to 520 weeks of lost time benefits when their incapacity is partial (they remain able to work) and their whole person permanent impairment does not exceed statutory thresholds. Once permanent impairment below the threshold is established and 520 weeks of benefits have been paid, an employer is entitled to unilaterally discontinue partial incapacity benefits being paid voluntarily or to seek a Board Order allowing it to discontinue benefits being paid under a Board-ordered payment scheme.

Before discontinuing benefits in either scenario, employers need to be aware that the Board’s Rule Ch. 2(5)(1) requires them to send written notice of the discontinuance to the employee at least 21 days before the expiration of benefits.

Important Changes to the Maine Workers’ Compensation Board Rules

September 2014

On August 18, 2014, the Maine Workers’ Compensation Board amended the rules governing the Maine workers compensation system.  These amendments include some important substantive changes, including altered deadlines and new mandatory procedures for employers and insurers to follow.

A helpful guide summarizing these rule changes can be found on the Tucker Law Group website, here. The text of the new Rules can be found on the WCB Rules page of the Maine Workers’ Compensation Board website.  For questions about the amended Rules and their potential impact on employers and insurers, contact the attorneys at Tucker Law Group.

Board Adopts Rule Regarding Increase in Expenses and Fees for 312 Examinations, Hearing Attendance

October 2009

(view adopted Rule)

The Board has adopted an amendment to Chapter 4 of the Board Rules that increases the cost for independent medical examinations under 39-A M.R.S.A. §312. The mileage rate has been raised from $0.26 per mile to $0.44 per mile. Reimbursement for overnight lodging has been raised from $45.00 to a maximum of $120.00 per night. This is now available to employees who travel 100 miles or more from home instead of the 150 miles that was previously in place.

The reimbursement rates for meals stays the same but is now available to employees that travel 50 miles or more from home instead of 80 miles. Finally, 312 examiners are now able to charge $300.00 per hour instead of $200.00 per hour and may charge up to 5 hours instead of the 4 hours that was previously in place.

The Board has also adopted an amendment to Chapter 12 of the Board Rules which raises the mileage rate for hearing attendance from $0.26 per mile to $0.44 per mile.

Board Adopts Rule for Calculation of Offsets Pursuant to Section 221(3)

September 2009

(view adopted Rule)

In response to the Law Court’s holding in Foley v. Verizon, 2007 ME 128, the Board has adopted an amendment to Chapter 9 of the Workers’ Compensation Board Rules. Under the new rule, an offset for lump sum or periodic payments paid over a period less than the employee’s life expectancy must be determined by dividing the lump sum amount by the employee’s life expectancy, then converting that weekly benefit into an after-tax amount by using the wage tables. The new rule is effective as of September 16, 2009.

Legislature Forecloses Apportionment Against Prior Settled Injuries

September 2009

(view 39-A M.R.S.A. §354, Subsection 3)

The Legislature amended 39-A M.R.S.A. §354, Subsection 3 in response to the Law Court’s holding in Legassie v. Securitas, Inc., 2008 ME 43. The ruling in that case allowed insurers to apportion back against prior lump sum settled injuries and reduce its obligation based on that apportionment. The new rule provides that no reduction may be taken for an injury that was lump sum settled prior to the date of injury for which the insurer is responsible. The rule became effective September 12, 2009, but applies retroactively to all injuries, including pending cases and cases on appeal.

Legislature Seeks to Ensure that Construction Workers are Protected by Workers’ Compensation Insurance

September 2009

(view 39-A  M.R.S.A. § 105-A)

Concerned that construction workers who were functioning as employees were being treated as independent contractors in order to avoid workers’ compensation, unemployment and taxes, the Legislature enacted 39-A M.R.S.A. §105-A. Under that Section, a person performing work for a general contractor or hiring agent is an employee for workers’ compensation purposes unless the person meets all of the twelve listed criteria. Section 105-A is limited to the construction industry. Whether or not a person in any other industry is an independent contractor for workers’ compensation purposes is still governed by the test in 39-A M.R.S.A. §102, Subsection 13.

Board Proposes Rule Establishing Maximum Facility Fee Charges and Maximum Charges for Professional Services

August 2009

(view proposed Rule)

The Board has proposed an amendment to Board Rule Chapter 5 which would establish maximum facility fee charges for hospital inpatient, outpatient and ambulatory surgical centers, as well as maximum charges for professional services. The amendment is based on a modified Medicare format for determining maximum charges. It also updates the CPT codes applicable to professional services by incorporating the 2009 Physician’s Current Procedural Terminology.

Durational Cap on Weekly Benefits Extended to 468 Weeks

February 2009

(view adopted Rule)

The Workers’ Compensation Board has adopted a Rule extending the limitation on partial incapacity benefits under Section 213 an additional 52 weeks to 468 weeks as of January 1, 2008. This is the second 52 week extension within the last 14 months. Employees who reach their weekly limitation on partial incapacity benefits prior to January 1, 2008 will not get the benefit of the 52 week extension. Those employees who have not reached the durational cap on partial benefits as of January 1, 2008 will be entitled to the extension.

Future Medical Cost Estimates Required for Lump Sum Settlements

December 2007

The Workers’ Compensation Board has adopted a Rule which requires Hearing Officers to make a determination regarding expected future medical costs related to the injury before approving a lump sum settlement and releasing an employer’s liability for future medical expenses. The change is reflected in Chapter 12(6)(2)(B) of the Workers’ Compensation Board Rules. Now the parties must be prepared to present evidence regarding anticipated future medical costs.

A Medicare Set-Aside Allocation (MSA) is one way to satisfy at least part of this burden. An MSA is already required anytime the employee is a current Medicare beneficiary or if the employee is eligible for Medicare within 30 months of the date of settlement and the total amount of the settlement, including indemnity, is greater than $250,000.00. In addition, if the employee is on Medicare and the amount of the total settlement is greater than $25,000.00, the Center for Medicare Services (CMS) must approve the MSA. MSA’s relate only to Medicare related expenses, but the allocation reports often include estimates of non-Medicare expenses. In all likelihood, in non-MSA cases, a simple statement of the amount of future expenses, supported by a medical opinion, will suffice.

Interest at Mediation

April 2006

In light of the Law Court’s ruling in Hoglund v. Aaskov Plumbing & Heating, employers and insurers should take note of another consequence of reaching an agreement at mediation. Section 205(6) of the Act provides that “when weekly compensation is paid pursuant to an award, interest on the compensation must be paid at the rate of 10% per annum from the date each payment was due, until paid.” The policy of the Workers’ Compensation Board has been to apply this Section to mediation agreements as well. Therefore, if an agreement is reached at mediation, the employer and insurer will be responsible for the interest on those payments as well.