In a pair of recent decisions, the Appellate Division of the Maine Workers’ Compensation Board has significantly restricted the availability of the “subsequent nonwork-related injury” defense to workers’ compensation claims. For the first time, Maine employees who are out of work for non work-related injuries or diseases sustained may be entitled to lost time benefits simply by soliciting after-the-fact medical restrictions from doctors hired by their attorneys.

For several years, the rule governing subsequent non work-related injuries in Maine was that a subsequent injury could not be used to increase the level of benefits to a disabled worker. See, Roy v. BIW, 2008 ME 94. However, in Michael Parent v. NewPage Corp. the appellate panel found that an employee who was working full time, earning his full wage at the time he suffered a totally disabling non work-related psychiatric illness was nevertheless entitled to lost time benefits on the basis of medical restrictions for a work injury that a doctor imposed on him after he was already out of work for the non work psychiatric illness. More recently in Pastula v. Lane Construction, the Appellate Division upheld a hearing officer’s finding that an employer who had been accommodating an employee without loss of income was responsible for total workers compensation benefits when that employee was no longer able to work as a result of a subsequent non work psychiatric injury.

This disturbing trend essentially makes employers and workers’ compensation insurers in Maine subsidizers of long-term disability insurance for all of their workers. Please feel free to call us for a consultation on how this and other recent developments in workers’ compensation may affect your business.