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Legislative Changes The Maine Legislature passed two bills substantively changing workers’ compensation law effective 09/12/09:
1.LD 946 closed the loophole that existed in 39-A MRSA §205(9) since it became effective in 1993. As amended, it will now provide as follows:
B. (1) If no order or award of compensation or compensation scheme has been entered... benefits paid pursuant to section 212, subsection 1 or section 213, subsection 1 may be discontinued or reduced based on the amount of actual documented earnings paid to the employee during the 21-day period if the employer files with the Board the documentation or evidence that substantiates the earnings and the employer only reduces or discontinues benefits for any week for which it possesses evidence of such earning….
(2)If an order or award of compensation or compensation scheme has been entered... Upon the filing of a petition, the employer may discontinue or reduce the weekly benefits being paid pursuant to section 212, subsection 1 or section 213, subsection 1 based on the amount of actual documented earnings paid to the employee after filing the petition.The employer shall file with the Board the documentation or evidence that substantiates the earnings and the employer may discontinue or reduce weekly benefits only for weeks for which the employer possesses evidence of such earnings.
As the statute was originally written, if a previously-injured employee receiving incapacity benefits returned to work for a different employer, §205(9) required the employer to continue paying the ongoing level of incapacity benefits to that employee no matter how much the new job paid. If the employer was paying benefits voluntarily, the employer could file a 21-day letter reducing benefits-- but it had to continue paying undiminished benefits during those 21 days, with no means of recovering the overpayment. If the employer was paying benefits per a mediation agreement or decree,the employer had to continue paying the same level of benefits until the employer filed and litigated a Petition for Review to conclusion (including appeal), which could take years, again with no means of recovering the overpayment or penalizing the employee.
The Maine Supreme Court highlighted this problem in its 2003 decision in Grant v. CMP, but the Maine Legislature failed to correct it until this year. LD 946 now allows the employer to reduce benefits immediately, according to an employee’s current earnings at a different employer, upon filing a 21-day letter or Petition for Review. Getting the earnings information is the key, however, and that may prove difficult in some cases.
2.LD 1384 amended 39-A MRSA §354 and limited the application of the Court’s 2008 decision in Legassie v. Securitas, which allowed employers offsets for prior settled injuries:
There may be no reduction of an employee's entitlement to any benefits under this Act payable by an insurer based on a prior work-related injury that was the subject of a lump sum settlement approved by the board prior to the date of the injury for which the insurer is responsible.
Now, responsibility for incapacity or medical benefits for a prior settled injury can be effectively transferred to other past or future injuries, providing a double-recovery to employees at the expense of Maine employers.
Let us know if you have any questions on how these statutory changes apply to your cases.
Kevin Gillis
Tom Getchell
Mike Richards
Dan Gilligan
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