Did you know Governor Mills signed LD 213 into law this week?
LD 213 added female reproductive cancers to the existing firefighters’ presumption in Maine. The existing firefighters’ presumption states if a firefighter meets requirements involving medical tests, length of service, and signed a written affidavit declaring that, to the best of their knowledge the diagnosed cancer is not prevalent among certain blood-related family members, there is a rebuttable presumption that they contracted cancer in the course of employment.
As a result, sufficient notice of the cancer was given. The disease was not occasioned by any willful act of the firefighter to cause the disease. The list of female reproductive cancers is now included in the definition of cancer in the Act. It joins kidney cancer, non-Hodgkin’s lymphoma, colon cancer, leukemia, brain cancer, bladder cancer, multiple myeloma, prostate cancer, testicular cancer, and breast cancer. For more information about how this new development might affect you as an employer or insurer, please call one of our attorneys at Tucker Law Group today.
Decided: April 21, 2021 Topic: Notice, Mistake of Fact
The issue, in this case, was whether it was appropriate, in the absence of any testimony or other evidence on the issue, for the ALJ to infer that the employee operated under a mistake of fact as to the cause of his bilateral knee condition until he obtained a medical causation opinion.
The employee worked long-term for Shaw’s Supermarkets as a grocery manager. His job often involved stocking shelves, which required frequent bending and kneeling. Over a period of several years, he experienced pain in both knees that worsened progressively. On August 22, 2017, the employee saw his primary care physician.
Around this time, the employee began to question whether his work caused his knee condition. The primary care physician did not issue a causation opinion until December 1, 2017. In the meantime, the employee saw Shaw’s chosen medical provider on November 3, 2017. They determined his bilateral knee condition as work-related. Shaw’s was notified that same day.
Shaw’s alleged that the employee’s claim should be denied. He failed to provide notice within the 30-day period required by statute. Once an employer raises the issue of notice, the employee bears the burden of persuasion to show that notice was timely.
Despite no testimony from the employee that he was under a mistake of fact regarding the cause and nature of his bilateral knee pain, the ALJ (Goodnough) found that the employee was under a mistake of fact until he was given a medical opinion regarding the compensable nature of his knee condition on November 3, 2017. As a result, the ALJ concluded that the notice was timely.
Shaw’s appealed arguing that the ALJ erred by tolling the notice period for the mistake of fact. The employee provided no evidence that he operated under a mistake of fact as to the cause of his condition. He argued that the absence of a medical causation opinion until November 3, 2017, supported the ALJ’s factual finding.
The employee was under a mistake of fact or that knowledge of the work-relatedness of the injury should not have been imputed to him because of the differing medical causation opinions. The Appellate Division vacated the decision and ordered the employee’s petitions denied on remand based on late notice.
They found that the record did not contain competent evidence to support the ALJ’s finding of mistake of fact. They further noted that the absence of a medical opinion on causation, by itself, does not permit an inference that the employee was mistaken as to the cause and nature of his knee condition.
Topic: Gradual Injury, Arising Out of, and Within the Scope of Employment
This decision involved a gradual injury that first manifested symptoms while the employee was at home and not working. The employee had worked as a dispatcher for United Ambulance Service for roughly 12 years, taking nearly 250 calls per day and working four 10-hour days, plus frequent overtime.
On the date of the injury, the employee was at home during his day off. He was reaching over his bathtub with his arm extended when he felt a “pop” and experienced immediate pain in his neck and left shoulder. He pursued a workers’ compensation claim alleging that his employment caused his eventual diagnosis of cervical disc herniation.
A Section 312 independent medical examination by Dr. Bradford concluded that the employee sustained a compensable cervical injury, opining that the injury “occurred gradually due to repetitive computer activities and static posturing while functioning as a dispatcher over many years.” Dr. Bradford further reasoned that the bathtub incident was the culmination of a delayed-onset work injury rather than a specific nonwork-related event.
The ALJ (Goodnough) granted the petitions and awarded protection of the Act, and ordered payment of medical bills. On appeal, the Appellate Division upheld the decision, ultimately holding that the final test in such a claim is not whether the symptoms occurred at work, but instead, whether the injurious activities that caused the injury were undertaken in the course of employment.
To discuss how this decision and others like it may affect you as an employer or insurer, please give one of the attorneys at Tucker Law Group a call.
Richard D. Tucker, a managing partner at Tucker Law Group, earned unanimous approval as a member of the Federation of Defense and Corporate Counsel (FDCC). An international organization founded over 80 years ago. FDCC includes members who achieved professional distinction as leaders in the legal community. Membership in FDCC is limited, selective, and by nomination only.
Tucker also currently serves on the Board of Directors of DRI – The Voice of the Defense Bar, as the Northeast Regional Director, formally holding the office of Maine’s State Representative. A frequent speaker on legal topics, Tucker is also a member of the Maine State Bar Association, Penobscot County Bar Association, and Tri-State Defense Lawyers Association.
He also continues to counsel clients on Workers’ Compensation and Insurance Defense issues. Established in 1993. Tucker Law Group currently has four attorneys, with over 60 years of combined experience. Congratulations Dick on this accomplishment!
The Workers’ Compensation Board recently adopted a number of rule changes. These went into effect on September 1, 2018. The full text of the rule changes with strikeouts of deleted language and underlines for the new language can be found here.
For a summary of the rule changes, see below:
PAYMENT OF BENEFITS
Ch. 1, §5(1)(A)(3)
401(k), 403(b) and equivalent plan matching funds that cease payment because the employee is not working must be included, as fringe benefits, in an employee’s average weekly wage. Inclusion of the matching funds ends when the employee returns to work in any capacity (partial or full time).
Ch. 1, §5(2)(B)
Fringe benefits must be determined on the date of injury and the employer/insurer shall file a WCB-2B within 30 days of notice of the injury.
Ch. 1, §5(2)(C)
An employer/insurer can adjust an employee’s average weekly wage using the modification form one time within 90 days after the first lost time payment on a claim to correct an error or miscalculation. To make changes after 90 days, file a 21-day certificate of discontinuance/reduction.
Ch. 1, §11
Establishes a post-insolvency process between the Board and Maine Insurance Guaranty Association.
SECTION 213 COMPENSATION FOR PARTIAL INCAPACITY
Ch. 2, §3
A permanent impairment evaluation for purposes of lump-sum settlement is no longer required.
Ch. 2, §5
The procedure for terminating the benefits of an employee who reached the durational limitation has been amended. The same process applies to cases paid without prejudice. A separate process applies to cases where the employee receives payment pursuant to a compensation payment scheme.
If there is a compensation payment scheme (e.g. – a decree), the employer/insurer must file a Petition to Terminate Benefit Entitlement. The petition includes the required notice informing the employee of the right to request extended benefits due to extreme financial hardship pursuant to §213(1). In the event of the petition’s granting, the decree includes the required notice.
Ch. 3, §1-A
Employers must now complete the first report of injury for all injuries, including medical-only, within 7 days after the employer receives notice of an injury that required the services of a healthcare provider but did not cause the employee to lose a day’s work.
A copy of the First Report of Occupational Injury or Illness (WCB-1) shall go to the employee unless self-insured. Also, it must go to the employer’s insurer within 24 hours after the First Report of Occupational Injury or Illness (WCB-1).
INDEPENDENT MEDICAL EXAMINER
Ch. 4, §1(B)
§312 Independent medical examiners must hold an active treating practice within 24 months prior to appointment in an individual case. “Active treating practice” means active direct involvement in the treatment of patients on a regular basis.
Ch. 4, §2(6)
§312 Independent medical examiners are no longer precluded from acting as the employee’s treating provider. §312 still requires disclosure of any potential conflicts.
MEDICAL FEES, REIMBURSEMENT LEVELS, & REPORTING REQUIREMENTS
The creation of a new set of medical releases outlined below:
WCB-220: General release
WCB-220-A: Mental health records
WCB-220-B: Substance abuse records
WCB-220-C: Sexually transmitted disease records
WCB-220-R: Revocation of release
WCB completely revamped the employment rehabilitation rule. The new version establishes an appointment process for rehabilitation providers. It also spells out procedures for suitability evaluations pursuant to §217(1), plans implementation pursuant to §217(2)
Also, recovery by the Employment Rehabilitation Fund in case of successful rehabilitation plans. The goal includes streamlining the rehabilitation process, allowing input at all stages, and clarifying that employers/insurers can raise all defenses if the Employment Rehabilitation Fund seeks reimbursement.
PROCEDURES FOR PAYMENT
Ch. 8, §11
Permits an employer/insurer to terminate benefits pursuant to § 205(9)(A) when an employee has been released to work with no restrictions by the employee’s treating health care provider, there are no conflicting medical reports, and the employee, instead of returning to work receives vacation, paid time off (PTO), or holiday pay instead of regular wages.
PROCEDURE FOR COORDINATION OF BENEFITS
Ch. 9, §2(2)
Allows coordination of benefits when an employee receives payments pursuant to a PTO or equivalent plan. If the PTO plan designates a certain percentage as sick time, then lost time benefits may coordinate by that percentage of the PTO payment. Otherwise, coordination allowed only if the PTO benefit used equals the amount of sick leave.
Ch. 12 §1(2)
Now allows 21 days to respond to another party’s motion or submission.
Ch. 12 §2
Petitions for payment of medical and related services must include itemized bills, liens, co-pays, and out-of-pocket expenses. Also, payment of medical bills must occur within 10 days after the issuance of a decree or the receipt of the information required under Chapter 5, whichever occurs later.
Ch. 12 §5
Continuance requests must be filed no later than 7 days before the hearing or conference.
Ch. 12 §9(1)
If a Joint Scheduling Memo (JSM) is not filed in a timely manner, the Board may dismiss pending petitions. If the JSM is not filed within 21 days after notice from the Board, that pending petitions will be dismissed.
Ch. 12 §9(3)
Legal issues not raised in the Joint Scheduling Memo may be deemed waived by the Administrative Law Judge.
Ch. 12 §10
The JSM must list scheduled examinations pursuant to §207 and §312. Examinations pursuant to §207 and §312 must be scheduled or requested within 30 days after the JSM is filed.
Examinations outside of this timeframe can only be scheduled upon a showing of good cause. Good cause includes the generation of the significant medical evidence since the filing of the JSM but does not include failure to exchange relevant medical information.
Ch. 12 §11(4)
Regardless of whether the employer intends to offer the surveillance, the employer shall provide all surveillance information to the employee within 14 days after the employer receives the exchange of information, but no later than 7 days prior to the hearing.
This includes all surveillance since the date of injury or since the last decree, whichever period is shorter. Any surveillance received after that point must be exchanged within 14 days of receipt. No later than 7 days prior to the hearing.
RULES OF APPELLATE DIVISION
Ch. 13, §1-A
A party filing an appeal at a regional office holds responsibility for the cost of transferring the submission to the division.
Ch. 13, §3(2)
Notice of Intent to Appeal may be filed by e-mail, provided the original is sent on or before the due date.
Ch. 13, §6(1)(E)
The appendix should include all documents referenced in the briefs except for good reasons.
Ch. 13, §7(2)
The Appendix to an appeal must contain a table of contents.
Ch. 13, §9(1)
Requests for Appellate Division oral arguments must be made separately from any other board filing.
Ch. 13, §9(4)
If there are multiple employers/insurers in a case before the Appellate Division, the parties must allocate the 20 minutes to present oral between themselves unless a party files a motion showing good cause for additional time.
Ch. 15 §6(1)
The $5,000 guideline limit to forfeitures has been removed.
Our team at Tucker Law Group is pleased to welcome Chelsea to our firm. Chelsea, a native of Oakland, Maine, attended the University of Maine at Orono, where she earned a B.A. in Psychology and Journalism in 2009. A graduate of the New England School of Law in 2012, Chelsea was the Executive Articles Editor of the New England Journal of International and Comparative Law as well as Treasurer of the Alternative Dispute Resolution Society and member of the Regional Mock Trial Competition.Having practiced as a Worker Advocate for the Maine Workers’ Compensation Board for several years in Bangor, Chelsea brings a wealth of workers’ compensation knowledge to Tucker Law Group.
Chelsea is a Member of the Maine State Bar Association, the Penobscot County Bar Association and the Defense Research Institute. She is admitted to the State Bar in Maine.
We could not be more pleased to add Chelsea to our team –
I was honored to be asked to write this column for the Defense Research Institute publication “For The Defense” – I have been a DRI member for over 21 years, and enjoy every minute of it. Please take a moment to read this column from the June 2016 issue. For more information about DRI, visit www.DRI.org. – Dick Tucker
“If you are resolutely determined to make a lawyer of yourself, the thing is more than half done already.” Abraham Lincoln, 1855
Over the last week, members of our firm attended the DRI Annual Meeting held in Washington, D.C. This was my first DRI event, with the fortunate exception of being a guest at a reception in San Diego a few years ago (held on the deck of the USS Midway!) The experience was inspiring, enlightening, and a whole lot of fun!