Background:
In March 2006, the employee injured his back while at work for Re-Harvest. He was unable to work even light duty following the injury and less than 4 weeks later, he was terminated. It was more than a year later that the employee regained some work capacity and was able to secure full-time employment. The employer voluntarily paid total incapacity benefits during that period of time.

The employee filed a Petition to Remedy Discrimination which was granted by the Hearing Officer. He ordered the employer to pay the employee’s reasonable attorneys fees as well as the amount he paid out of pocket for health insurance while he was between jobs. Re-Harvest appealed.

Court ruling:

The Court overruled the Hearing Officer’s decision. The Court acknowledged that a short period of time between a claim for workers’ compensation benefits and termination can be circumstantial evidence of discriminatory intent. However, the Court went on to note that there was no requirement that an employer retain an employee for long periods of time during which the employee is totally unable to work. In this case, there was no question that Lavoie was unable to perform any work functions for weeks after the injury and there was no indication that his health was likely to change in the near future. In fact, it was more than a year before Lavoie regained work capacity and returned to work for another employer. Unless there is some indication that the employee has a recoverable work capacity, there is no provision in the Workers’ Compensation Act that would require employers to maintain employees who are completely unable to work in their employment roles.

View complete text of Raymond Lavoie v. Re-Harvest, Inc., et al.

Background:
Smart suffered a work-related mental stress injury in the course of his employment as a Maine state trooper. The employer sought to establish permanent impairment below the statutory threshold in order to discontinue his partial benefits pursuant to the weekly limitation on partial benefits in Section 213(4).

Smart was evaluated by a Section 312 independent medical examiner, who established 40 to 45% permanent impairment as a result of work-related major depressive disorder, anxiety disorder and obsessive-compulsive personality disorder. However, instead of using the 4th Edition of the AMA Guides as prescribed by Board Rule, the examiner used the 2nd Edition of the AMA Guides.

The employer appealed, contending that it was error to assign permanent impairment to Smart’s mental injuries because the 4th Edition of the AMA Guides does not contain specific numerical ratings for mental and behavioral conditions. They also argued that it was error for the independent medical examiner to rely on a source other than the 4th Edition of the AMA Guides to arrive at a percentage of permanent impairment. 

Court ruling:

The Court quickly disposed of the employer’s first argument. The Court had recently ruled that it was proper to assign permanent impairment to the mental sequella of a physical injury. See Harvey v. H.C. Price, 2008 ME 161, 957 A.2d 960. The Court found that the reasoning used in Harvey applies equally to Smart’s injury, a mental injury resulting from work-related stress.

On the other hand, the Court agreed that it was error for the hearing officer to adopt the permanent impairment rating given by the independent medical examiner. Use of the 4th Edition of the AMA Guides is mandated by Workers’ Compensation Board Rule. The independent medical examiner’s opinion regarding permanent impairment, because it was based on the 2nd Edition, was therefore insufficient to establish the level of permanent impairment. The case was remanded to the hearing officer for a redetermination of permanent impairment.

View complete text of Arnold Smart v. Department of Public Safety

Background:
Tucker injured his back at work in 2002. After the injury, he returned to school and obtained his high school diploma. In 2006, he enrolled as a full-time student at a community college. Despite having a full-time, light duty work capacity, Tucker looked for part-time work only, as he intended to work only part-time while going to school. He found a part-time job in March 2007.

Tucker filed a Petition for Review seeking 100% partial benefits through the date he found part-time work and then ongoing partial benefits thereafter. His Petition was granted and Associated Grocers of Maine (AGM) appealed, contending they should not be held responsible for a higher level of partial incapacity benefits due to Tucker’s election to attend school full-time.

Court ruling:

The Court agreed with AGM and remanded the case to the hearing officer for a recalculation of benefits imputing a full-time earning capacity. It was undisputed that Tucker had a full-time earning capacity and Tucker himself conceded that he looked only for part-time work. While Tucker may have had good reason to do so (he was attending school full-time), the Court reasoned that an employer is responsible only for loss of earning capacity related to the work injury and an employee’s election to attend school has no such connection. The Court stopped short of saying that by electing to attend school full-time the employee has voluntarily withdrawn him or herself from the labor market. Tucker may still be entitled to ongoing partial benefits, but it will be based on a full-time rather than a part-time earning capacity.

View complete text of Randall K. Tucker v. Associated Grocers of Maine, Inc., et al.

Background:
Sprague suffered a 1999 low back injury and underwent surgical procedures in 1999 and 2003. Lucas sought to establish permanent impairment below the 11.8% threshold applicable to Sprague’s date of injury. The Act requires that permanent impairment be determined according to the 4th Edition of the AMA Guides to the Evaluation of Permanent Impairment (“the Guides”). Chapter 3 of the Guides applies to spine injuries and provides that the evaluator should use the “Injury” or “DRE” model if the patient’s condition fits within one of eight listed categories. It goes on to provide that if the condition does not fit into one of the eight categories, the physician should use the range of motion model as a differentiator to decide placement within one of the DRE categories.

In this case, Sprague’s own physician used the DRE model and assigned 10% permanent impairment. A 312 exam was conducted and the examiner used the range of motion model, reasoning that because Sprague had multiple surgeries he did not fit neatly within any of the DRE categories. Using the range of motion model, he assigned 12% permanent impairment.

The Hearing Officer adopted the 312 examiner’s opinion. Lucas appealed, contending that the 312 examiner should have used the range of motion model merely to place the employee in the proper DRE category, not as an assessment tool in and of itself.

Court ruling:

The Court found no error in the 312 examiner’s use of the range of motion model in assessing permanent impairment. The Court found enough support in the language of the Guides to use the range of motion model in and of itself to assess permanent impairment in some circumstances, and not just as a tool to differentiate between categories in the DRE model. In this case, the independent medical examiner concluded that Sprague’s condition did not fit neatly within any of the DRE categories so that the range of motion model provided the best estimate of his permanent impairment. This gives the examiner a good deal of flexibility in rating permanent impairment, providing the examiner can support that the condition doesn’t fit squarely within one of the DRE categories. That appears to be a fairly low threshold and could result in a wide range of ratings regarding the same condition.

View complete text of David J. Sprague v. Lucas Tree Experts, et al.

Background:
Harvey suffered a 1999 work-related injury to her right leg. Following H.C. Price’s Petition to Determine the Extent of Permanent Impairment, the Board found that Harvey suffered 5% whole person permanent impairment from that injury. Harvey claimed that she suffered from depression as a result of her leg injury and filed her own Petition to Determine the Extent of Permanent Impairment asking the Board to add permanent impairment from her psychological sequela to the 5% that had already been allocated to her leg. The 312 examiner diagnosed her with major depressive disorder related to the 1999 injury and assigned 7% permanent impairment to her psychological injury. The Hearing Officer adopted this opinion, finding that Harvey had 12% combined permanent impairment which put her over the threshold for her date of injury and entitled her to lifetime partial benefits.

The employer appealed, arguing that because the AMA Guides did not adopt fixed percentages for psychological injuries, it was error for the Hearing Officer to add psychological permanent impairment to the employee’s whole body permanent impairment. 

Court ruling:

The Court upheld the decision of the Board’s Hearing Officer. In the opinion of the Court, the fact that the AMA Guides did not adopt fixed percentages for psychological injuries did not mean that they were not meant to be subject to assessment. Instead, they believed the authors of The Guides were concerned that the use of fixed percentages would make it less likely that an adjudicator would take into account the many factors that influence mental and behavioral impairment. While the AMA Guidesacknowledge that assigning percentages of impairment for psychological permanent impairment cannot be done reliably, they also provide that when it is essential to make an estimate, doctors must use their best clinical judgment and attempt to do so as accurately as possible. Finally, the Court found that the definitions of permanent impairment in the Workers’ Compensation Act and AMA Guides are broad enough to include psychological impairment resulting from work injuries. 39-A M.R.S.A. §102(16) defines permanent impairment as “any anatomic or functional abnormality or loss.” [Emphasis added.] The Court also noted that the definition of impairment in theAMA Guides closely parallels that of the World Health Organization, which defines impairment as “any loss or abnormality of psychological, physiological or anatomical structure or function.”

View complete text of Vivan Harvey v. H.C. Price Company, et al.

Background:
A.P. Concrete voluntarily paid Mariner partial workers’ compensation benefits following a work-related injury on June 29, 2001. The employer later filed a 21-day discontinuance. The employee filed a Petition for Review and a Provisional Order was entered, reinstating his benefits pending a hearing on the Petition. After hearing, a Decree was issued, granting the employee protection of the Act only and specifically provided that “the employer may cease payment of incapacity benefits as of the date of this decision”. The employer immediately stopped payment of benefits and the employee filed a Motion for Findings of Fact and Conclusions of Law, which was denied.

The employee filed a Petition for Assessment of Forfeiture with the Abuse Investigation Unit (AIU), arguing that it was improper for the employer to stop paying benefits while a Motion for Findings of Fact and Conclusions of Law was pending. The AIU agreed and assessed the employer a penalty of $1,600. The AIU reasoned that payments made pursuant to a Provisional Order are payments pursuant to “an order or award of compensation or compensation scheme” that must continue until the matter has been finally resolved, including appeal proceedings and Motions for Findings of Fact and Conclusions of Law (see 39-A M.R.S.A. §205(9)(b)(2)). The employer appealed.

Court ruling:

The Court unanimously overruled the decision of the AIU. According to the Court, a205(9)(b)(2) “order or award of compensation or compensation scheme” is one that is entered only after formal proceedings have been initiated and the parties have either reached an agreement or the matter has been decided by a hearing officer. The Court then reasoned that a Provisional Order is only in place pending a hearing and that until then there has been no formal agreement or finding by the hearing officer that the employer is liable to pay benefits.

In support of its decision, the Court looked to legislative history and the policy behind the “pay without prejudice” provisions of Section 205(9)(b)(1). The Court noted that the purpose of that Section was to encourage employers to voluntarily pay benefits without litigation. The Court was concerned that employers would be less likely to voluntarily pay benefits without prejudice if they could be looking at paying all the way through appeal, especially in cases like this where there was never a formal agreement or decree finding that the employer was responsible for paying benefits. The Court also was concerned that hearing officers may be reluctant to enter Provisional Orders out of concern that they would be creating a long-term obligation for the payment of benefits that may never be determined to be owed.

View complete text of Cole Mariner v. A.P. Concrete, et al.

Background:
In this case (and its companion case, Babine v. Bath Iron Works), the employers argued that in the absence of a fee schedule for facility charges pursuant to 39-A M.R.S.A. §209(1), they should have been allowed to challenge the reasonableness of Central Maine Orthopedics’ (CMO) charges. While a fee schedule has been established for professional services in Board Rule Chapter 5, the Rule does not apply to facility charges. Section 209(2) provides that a provider must be paid its usual and customary charge.

The employers argued that they should either be allowed to provide expert testimony that the facility charges were excessive or should have been granted discovery to inquire into amounts that CMO receives from private third-party insurers for the same services. Both of these requests were denied in each case. CMO argued that the charges it is required to publish pursuant to Title 22 of the Maine Revised Statutes are conclusive proof of its usual and customary charge.

The hearing officer agreed with CMO and granted the Petitions to Fix. The hearing officer then referred both decisions to the full Workers’ Compensation Board for review. After the Board failed to reach a majority vote, both employers sought appellate review.

Court ruling:
In a narrow 4 to 3 majority opinion, the Law Court upheld the hearing officer’s decisions. The Court agreed that the fact CMO negotiated lower rates with 3rd parties was not relevant in determining CMO’s usual and customary charge. The majority believed the charges published by a provider under Title 22 should be conclusive proof of their usual and customary charge. The majority was also concerned that case-by-case determinations of the usual and customary charge would lead to a flood of litigation and defeat the purpose of the Board Rules to ensure the speedy, efficient, just and inexpensive disposition of all proceedings under the Act.

The dissent agreed that in the absence of a Board promulgated fee schedule applicable to facility charges, the employer is obligated to pay the usual and customary charge. However, the dissent disagreed that the charge listed by the provider pursuant to Title 22 should be conclusive proof of a provider’s usual and customary charge. The dissent would allow employers to challenge the usual and customary charge by presenting expert testimony and evidence of what other entities are being charged for the same service. The dissent noted that in enacting the 1992 workers’ compensation reforms, the Legislature intended to limit overall costs for the workers’ compensation system, including medical costs. Requiring employers to accept a provider’s published charges would be contrary to that purpose because it allows providers to unilaterally determine what an employer is required to pay for those medical services.

View complete text of Fernald v. Shaw’s Supermarkets, Inc., et al.

Background:
While at work for BIW, Wilson suffered a work-related gradual injury (which she reported) to her left foot with a date of injury of July 1, 2000. For nearly 4 years, Wilson missed no time from work and although she received treatment, BIW did not pay any medical benefits related to the injury. Because there was no lost time, BIW was not obligated to (and did not) file a First Report of Injury with the Workers’ Compensation Board. Wilson began missing time from work in March 2004. More than two years after her injury, Wilson filed petitions under the Workers’ Compensation Act seeking compensation for lost time along with payment of medical bills related to treatment of her feet. BIW filed a First Report of Injury on May 13, 2004 pursuant to 39-A M.R.S.A. §303 which requires that an injury be reported to the Board if it has caused the employee to lose a day’s work.

Because no benefits had been paid and because the petitions were filed more than 2 years after the date of injury, BIW asserted statute of limitations as a defense under 39-A M.R.S.A. §306(1). That Section provides: “a petition brought under this Act is barred unless filed within 2 years after the date of injury or the date the employee’s employer files a first report of injury as required in section 303, whichever is later.”

The Hearing Officer ultimately determined that Wilson’s claim was not barred by the statute of limitations. Applying the plain language of Section 306, the Hearing Officer determined that the limitations period did not begin to run until BIW filed its First Report in May of 2004. BIW appealed.

Court ruling:

The Law Court upheld the Hearing Officer’s decision. The Court agreed that pursuant to the plain meaning of Section 306(1), the statute of limitations expires 2 years after the date of injury or 2 years after the date the employer files the First Report of Injury, whichever is later.

BIW argued that the Hearing Officer’s interpretation would lead to absurd and illogical results by indefinitely tolling the statute of limitations in cases in which an employer is not required to file a First Report of Injury. BIW also argued that filing a First Report of Injury should toll the statute of limitations only when the employer is obligated to file the report within 2 years of the date of injury, and filing a First Report of Injury after the statute of limitations has expired should not revive the claim. The Law Court could find nothing in the statute or its legislative history to support these arguments and upheld the Hearing Officer’s decision.

* To avoid this situation, the better practice is to file a First Report of Injury with the Board on medical-only claims. We have learned from the Board that medical-only First Reports will be accepted. A Notice of Controversy does not need to be filed unless treatment is being controverted or lost time becomes an issue.

View complete text of Marie Glenda Wilson v. Bath Iron Works

Background:
Smith injured her back in 1986, bilateral upper extremities in 1997 and her
left thumb in 2002 while working for Hannaford. The parties filed petitions to determine the extent of permanent impairment and the hearing officer issued a Decree adopting the opinion of the Section 312 medical examiner that Smith suffered from 10% permanent impairment for the 1986 back injury, 17% to the 1997 upper extremity injury and 2% to the 2002 thumb injury. This resulted in 27% combined whole person permanent impairment.

Hannaford appealed both the hearing officer’s finding that Smith suffered 17% impairment as a result of the 1997 injury and that permanent impairment associated with the 1986 injury could not be stacked. However, the Law Court granted appellate review on the stacking issue only.

Court ruling:
The Law Court dismissed the appeal as moot. The Law Court denied appellate review of the hearing officer’s decision that the employee suffered 17% permanent impairment as a result of the 1997 injury, making the hearing officer’s decision final. As a result, even if Hannaford was right that the 10% impairment from the 1986 injury could be stacked, the 17% impairment from the 1997 injury alone exceeded the statutory level threshold of 13.2% which entitled the employee to receive partial incapacity benefits beyond the durational limit established in Section 213(1).

Hannaford argued that this case fit within one of the exceptions to the mootness doctrine but the Court preferred to wait for a case with the right set of facts before deciding this issue.

View complete text of Gail Smith v. Hannaford Brothers Co.

Background:
The employer filed a Petition for Penalties, alleging that Miller had misrepresented his condition in proceedings before the Board. The Hearing Officer determined that Miller had misrepresented his condition and imposed a civil penalty of $1,000. However, the Hearing Officer also determined that Miller did not have the capacity to repay benefits he had wrongly received and therefore did not order repayment of the benefits.

Within 30 days of that decision, the insurer petitioned to reopen the record to consider newly discovered evidence of Miller’s increased earning capacity. The Hearing Officer reopened the record and after hearing additional evidence, determined that Miller had the ability to repay benefits. The Hearing Officer denied Mr. Miller’s subsequent Petition to Reopen the record which had been filed beyond the 30-day time limit. Miller filed separate appeals to the Law Court and Superior Court. The Superior Court appeal was stayed pending the outcome of the appeal to the Law Court.

Court ruling:
The Law Court found that it had no jurisdiction to consider the employee’s appeal of an order to repay benefits pursuant to 39-A M.R.S.A. §360. Section 360(3) specifically provides that appeals from an imposition of penalties pursuant to Section 360 must be filed with the Superior Court. The appeal to the Law Court was therefore dismissed, leaving the employee’s pending appeal with the Superior Court.

View complete text of Miller v. CPM Constructors, et al.