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.

Background:
Verizon voluntarily paid Kevin Foley total incapacity benefits following an April 26, 2003 work injury. The following year Foley retired from Verizon. He accepted a severance/pension package and received a one time, lump sum payment. Verizon took an offset pursuant to 39-A M.R.S.A. §221 (2006) and because the offset was greater than the employee’s compensation rate, Verizon unilaterally stopped paying the employee’s weekly workers’ compensation benefits.

The employee contacted the claims adjuster after his benefits were discontinued. Employee counsel sent two letters to Verizon on August 5th and September 23, 2004 contesting the discontinuance. Verizon filed a Notice of Controversy on October 7th. Foley filed a Petition for Award contesting the coordination of benefits. He also argued that Verizon had violated the 14-day rule because Verizon did not controvert the claim within 14 days of his telephone call to the adjuster or the August 5, 2004 letter from his attorney. Finally, he argued Verizon was not entitled to suspend his benefits without filing a petition or a 21-day discontinuance under 39-A M.R.S.A. §221(2006).

The Hearing Officer found there was no violation of the 14-day rule, finding the employee’s telephone call to the adjuster, checking on the status of his claim, was not an “outright assertion of a claim for benefits” and the copy of the August 5, 2004 letter submitted into evidence was unreadable. The Hearing Officer also found that 39-A M.R.S.A. §221 entitles the employer to an immediate coordination of workers’ compensation benefits without needing to file a petition or 21-day discontinuance. Finally, the Hearing Officer treated the lump sum pension benefit as though it were being received in weekly installments and allowed Verizon to offset those amounts against Foley’s weekly benefits. The employee appealed all three determinations.

Court ruling:

The Law Court upheld all aspects of the Hearing Officer’s decision. The Hearing Officer’s findings that the employee’s telephone call to the claims adjuster did not constitute an assertion of a claim for benefits and that the August 5, 2004 letter did not constitute an assertion of a claim because it was unreadable are factual findings that the Law Court will not disturb on appeal. The Law Court also reaffirmed that the coordination of benefits section is an exception to the general rule under Section 205(9)(B)(1) that payments made pursuant to an award or compensation payment scheme may only be reduced or suspended through the filing of a petition or a 21-day discontinuance.

The parties did not dispute that Verizon was entitled to an offset for the employee’s retirement/pension benefits. The disagreement was over the method to be used in determining the amount of the offset. The employee contended that either Verizon was entitled to an offset only in the week in which the lump sum was received or that the lump sum should be spread out over his remaining life expectancy. The employer argued that the pension/ retirement lump sum payment should be treated the same as a recovery under a third-party settlement, which entitles the employer to a holiday on the payment of weekly benefits until such time as the benefits that would have been received equal the amount of the settlement amount. The Law Court agreed with the Hearing Officer that these methods were not consistent with the intent or language of the Act. The Court agreed with the Hearing Officer’s method of using the monthly pension amount the employee would have received under the plan but for his election to take a one time lump sum payment.

View complete text of Foley v. Verizon, et al.

Background:
Higgins suffered a compensable work injury to her right arm while working for H.P. Hood. The employer filed a Petition to Determine the Extent of Permanent Impairment. A Section 312 independent medical evaluation was performed and the examiner gave an opinion that the employee suffered from a 3% permanent impairment as a result of her work injury. Later, after the hearing had been held, the employee got an opinion from her treating physician that she suffered from 20% permanent impairment. The Hearing Officer accepted the 312 examiner’s opinion and established a 3% permanent impairment rating.

The 312 examiner’s report contained a number of errors. The report listed a different first name for the employee and did not list the correct employer, insurer or referring physician. The report also listed her treating physician as Dr. Mevin instead of Dr. Nevins and indicated a bone scan was performed when the employee had instead undergone a bone density test. The examiner incorrectly identified the doctor who performed EMG testing and listed the employee as “cooperative, fair historian” and “poorly cooperative” at the same time.

Based on these errors, the employee appealed the Hearing Officer’s decision which had adopted the 312 examiner’s opinion.

Court ruling:
The Court first noted that under 39-A M.R.S.A. §312(7), the Hearing Officer is required to adopt the medical findings of a 312 examiner unless there is clear and convincing medical evidence to the contrary in the record. In earlier opinions the Law Court had held that contrary medical evidence does not include evidence not considered by the 312 examiner. Although the employee had an opinion from her treating physician that she suffered from 20% permanent impairment, it did not constitute contrary medical evidence because it was not available until after the 312 examination.

The employee conceded that there was no clear and convincing medical evidence contrary to the examiner’s opinion but instead argued that due to the number of errors in the examiner’s report, it could not be considered competent medical evidence in the first place. The employee suggested that the report may be a composite of her and another employee that the 312 examiner evaluated. However, the Law Court found that the errors were mostly clerical and minor and had no impact on the examiner’s opinion regarding permanent impairment. The report was found to be competent evidence to support the Hearing Officer’s decision and the employee’s appeal was denied.

View complete text of Higgins v. H.P. Hood, Inc., et al.

Background:
The employee suffered a back injury in 1991 while working as a carpenter for Messer. He began working for Brady Construction as a carpenter in 1994 and in 2002 suffered injuries to his knee and back. He returned to work for Brady in 2003 as an estimator and earned a higher average weekly wage than he did working for Messer as a carpenter. The Hearing Officer found that 80% of the employee’s incapacity was due to the 1991 Messer injury and 20% due to the 2002 Brady knee injury. The Hearing Officer awarded 100% ongoing partial benefits and ordered Brady to initially pay the full benefit based on the 2002 higher average weekly wage but went on to order Messer to reimburse Brady in an amount equal to the 1991 compensation rate.

Messer appealed.

Court ruling:

The Court ruled that under the facts of this case, Messer was not responsible to reimburse Brady for its apportioned share of the benefits because the employee’s post-injury earning capacity exceeded the average weekly wage attributable to Messer’s date of injury. The Court noted that the apportionment statute is based on principles of subrogation. The most recent insurer has the initial responsibility to pay the employee and then is subrogated to the employee’s rights against other insurers. See 39-A M.R.S.A. §354(2), (3) (2006). Under this framework, the most recent insurer has no right to reimbursement from other insurers unless the employee has that right.

The statute in effect at the time of the Messer injury requires the employer to pay the employee two-thirds of the difference, due to the injury, between the employee’s pre-injury average weekly wage and the average weekly wage he is able to earn after the injury. See 39 M.R.S. §55-B. Because Trottier’s post-injury average weekly wage exceeded his average weekly wage at the time of the Messer injury, Trottier was not entitled to weekly benefits from Messer. Because Trottier had no right to benefits from Messer, and because Brady was subrogated to Trottier’s rights, Brady had no right to reimbursement from Messer either. The Hearing Officer’s decision was therefore vacated and remanded for further proceedings consistent with the Court’s opinion.

View complete text of Trottier v. Thomas Messer Builders, et al.