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MAE Newsletter Advice on Partial Incapacity and Waiting Periods In its Spring 2009 newsletter, the Workers’ Compensation Board’s Monitoring, Auditing, and Enforcement (MAE) Unit published its advice regarding the calculation of the 7-day and 14-day waiting periods of § 204 in partial incapacity cases.
Under the MAE Unit’s interpretation of § 204, "in the case of partial incapacity, the 7-day waiting period is met when ... an employee loses wages because of the injury which cumulatively equal or exceed the employee’s pre-injury AWW, or ... loses wages because of the injury that would otherwise require the insurer to pay one week of benefits." The 14-day waiting period is met, requiring incapacity benefits to be paid for the initial 7-day period, when the employee's lost wages because of the injury "cumulatively exceed 2 times the employee's pre-injury AWW," or the employee "loses wages because of the injury that would otherwise require the insurer to pay more than 2 weeks of benefits." The example provided by the MAE Unit shows that a "week of benefits," means an amount equal to the employee's weekly total incapacity rate.
Under this interpretation, if an employee normally works 8 hours per day, 5 days per week, but is restricted to working 6 hours per day because of the injury (i.e., the employee loses 10 hours of pay per week), the 7-day waiting period would not be met until 4 weeks of 6-hour days have passed (i.e., 40 hours of wages have been lost). If the employee continues to work 6-hour days for another 4 weeks (losing a total of 80 hours of wages), partial incapacity benefits would then become payable for the initial 4-week period.
There is some question whether this is a correct interpretation of the statute, but the MAE Unit advises that this method of calculating the waiting period is "acceptable for purposes of Board audits." Therefore, it represents a safe harbor for the avoidance of penalties.Please let us know if you have any questions.
Kevin Gillis
Tom Getchell
Mike Richards
Dan Gilligan
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