Lost Time for Medical Appointments

The Workers’ Compensation Board’s Spring 2009 Monitoring, Audit & Enforcement Newsletter contains the following (emphasis added):

How Do I Report a Day or More of Sporadic Hours/Wages Lost (Without Looking Like the First Report is Late)?

Example 1 (Hours Lost): An employee who ordinarily works five 8-hour days (M-F) is injured on the job. The employee lost 3 hours from work each Monday for 3 weeks (3/23/09, 3/30/09 & 4/6/09) to attend medical appointments (9 hours lost, collectively).
Transmit a First Report to the Board via EDI as follows:
1. Box 43 “Date Of Incapacity” (DN56) = 3/23/09 (the initial date disability began);
2. Box 43 “Date Employer Notified” (DN281) = 4/6/09 (the date notified of a day or more collectively lost from work);
3. Box 47 (RTW Date) (DN68) = 3/24/09 (the initial return-to-work date).

Apparently, the Board (or at least the MAE Division) equates time spent at medical appointments with time lost for incapacity, but the employee in the example above is clearly not “incapacitated” within the meaning of 39-A MRSA §§212, 213 or 214— he is “able to work” within his limitations, the employer is making suitable work available to him, and the employee is doing the work.

In addition, many employers continue to pay the employee his wages when he attends medical appointments, making their reporting of that “lost time” even less appropriate. Many employees are willing and able to make their medical appointments before or after work hours, to avoid taking time away from work. In fact, some employees continue to get medical care even after being released to full-duty work with no limitations. Why pay “incapacity” benefits in cases with “no incapacity”? Furthermore, if the employee went to an appointment and returned to work that same day, would the Board accept the First Report if it listed the same date for the “Date of Incapacity” and “Return to Work”?

While we recognize that this issue is controversial, we recommend that employers recognize that they can decline to voluntarily pay “incapacity” benefits for work-time lost when employees go to their health care providers. The safest course, however, is for those employers to ask their insurers to file Notices of Controversy, because the Board may also equate the “known lost time” with a request for payment of lost time benefits— which it’s not, of course, especially if the employer continues paying full wages.

Kevin Gillis
Tom Getchell
Mike Richards
Dan Gilligan