The Workers’ Compensation Board recently adopted a number of rule changes that went into effect on September 1, 2018. The full text of the rules with strikeouts of deleted language and underlines for the new language can be found here.
For a summary on these rule changes see below.
PAYMENT OF BENEFITS
Ch. 1, §5(1)(A)(3): 401(k), 403(b) and equivalent plan matching funds that cease
being paid 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. Changes after 90 days must be made by filing a 21-day
certificate of discontinuance/reduction.
Ch. 1, §11: Establishes a post-insolvency process between the Board and the Maine
Insurance Guaranty Association.
SECTION 213 COMPENSATION FOR PARTIAL INCAPACITY
Ch. 2, §3: There is no longer a requirement to include a permanent impairment evaluation for purposes of lump sum settlement.
Ch. 2, §5: The procedure for terminating the benefits of an employee who has reached
the durational limitation has been amended. The process is the same for cases being paid
without prejudice; a separate process applies to cases where the employee is being paid 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
will include 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 the petition is granted, the
decree will include the required notice.
Ch. 3, §1-A: Employers must now complete a first report of injury for all injuries, including medical only, within 7 days after the employer receives notice or has knowledge of an injury that has required the services of a health care provider but has not caused the employee to lose a day’s work. A copy of the First Report of Occupational Injury or Illness (WCB-1) shall be sent to the employee and, unless the employer is self-insured, the employer’s insurer within 24 hours after the First Report of Occupational Injury or Illness (WCB-1) has been completed.
INDEPENDENT MEDICAL EXAMINER
Ch. 4, §1(B): §312 Independent medical examiners must have had an active treating
practice within 24 months prior to being appointed in an individual case. “Active treating practice” has been defined to mean active direct involvement in the treatment of patients on a
Ch. 4, §2(6): §312 Independent medical examiners are no longer precluded from being the employee’s treating provider. The §312 is still required to disclose any potential conflicts.
MEDICAL FEES; REIMBURSEMENT LEVELS; REPORTING REQUIREMENTS
Ch. 5: A new set of medical releases have been created. They are 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
Ch. 6: The employment rehabilitation rule has been completely revamped. The new
version establishes an appointment process for rehabilitation providers. It also spells out
procedures for suitability evaluations pursuant to §217(1), plan implementation pursuant to §217(2), and for recovery by the Employment Rehabilitation Fund in cases where the
rehabilitation plan was successful. The goal is to streamline the rehabilitation process, allow
input at all stages, and clarify 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
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 be coordinated by that percentage of the PTO payment.
Otherwise, coordination is allowed only if the PTO benefit is used for the equivalent of sick
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 be made within 10 days after a decree is issued or the date the information required under Chapter 5 is received, whichever is 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: Examinations pursuant to §207 and §312 that have been scheduled must
be listed on the JSM. Examinations pursuant to §207 and §312 must be
scheduled/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 generation of significant medical evidence since the filing of the JSM, but does not include failure to have exchanged 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 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, but no later than 7 days prior to hearing.
RULES OF APPELLATE DIVISION
Ch. 13, §1-A: A party filing an appeal at a regional office is responsible 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): All documents referenced in the briefs should be included in the appendix, unless there is good reason.
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.