Court Reverses Abuse Unit Penalty

The Maine Supreme Court has just issued a decision holding that benefits paid by provisional order are not paid pursuant to an "award of compensation" and do not create a "compensation payment scheme," so if the hearing officer's final decree discontinues benefits, the employer does not need to continue paying benefits pending appeal.

In Mariner v. AP Concrete, 2008 Me. 123, employee injured his back and received total compensation benefits, until the employer discovered him working on his house and filed a 21-day Certificate discontinuing benefits. The Employee filed a Petition for Review/Motion for Provisional Order, and HO Jerome ordered reinstatement of benefits pending hearing and decision on the merits. After hearing, she entered a decree awarding protection of the Act but allowing the employer to "cease payment of benefits as of the date of the decision."

The Employee filed a Motion for Findings, but HO Jerome declined to change her opinion. In the meanwhile, the employer discontinued benefits upon receipt of the decree. The employee filed a Petition for Forfeiture, arguing that employer could not discontinue benefits until after the appeal was complete, per §205(9)(B)(2). The WCB Abuse Unit agreed and ordered payment of a $1600 penalty, and the employer appealed.

The Court vacated the Abuse Unit's decision and eliminated the penalty. In another well-reasoned decision by Chief Justice Saufley, the Court analyzed the Act as a whole and determined that a provisional order was not a decision on the merits, and that a subsequent decision to terminate benefits did not require continued payment of benefits pending appeal, providing further incentive for employers to pay benefits voluntarily in appropriate cases.

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