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Maine Workers' Comp Blog

The Preti Flaherty Maine Workers' Comp blog provides up-to-date news and discussion on issues and emerging trends in Maine workers' compensation law.

Recent Blog Posts

  • The Maine Workers’ Compensation Board recently addressed a case involving the time for payment of benefits, the statutory waiting period and the application of Rule 1.1, emphasizing the need to pay close attention to broken periods of lost time. 39-A MRSA § 205(2) provides: 2. Time for payment. The first payment of compensation for incapacity under section 212 or 213 is due and payable within 14 days after the employer has notice or knowledge of the injury or death,... More
  • In Somers v. S.D. Warren Co., WCB App. Div. No. 17-38 (November 13, 2017), the Employee appealed a decision granting S.D. Warren’s Petition for Review and request to discontinue payments due to the expiration of the 520-week durational limit on incapacity benefits. In a 2008 decree, the administrative law judge (ALJ) found the Employee’s knee condition resulted in 7% whole-body permanent impairment. The ALJ specifically declined to award any permanent impairment for the Employee’s adjustment disorder, a psychological sequela of... More
  • On November 14, 2017, the Maine Supreme Court will hear oral argument in the case of Flanagin v. Maine Department of Inland Fisheries & Wildlife. This case deals with the concept of “tolling” of the statute of limitations. Under Maine law, “the limitations period for a claim is tolled if payments made by the employer or insurer or a subsequent injury were made with ‘contemporaneous notice’ that the payments ‘were for treatment that was in part necessitated by’ the earlier... More
  • In St. Louis v. Acadia Hospital Corp., WCB No. 10002460 (April 14, 2017), the Maine Workers’ Compensation Board issued a decision dated March 4, 2015, finding the Employee had not refused an offer of suitable work and awarded partial incapacity benefits reduced by an imputed earning capacity of $300.00/week. The Employer appealed to the Appellate Division. A decision issued January 12, 2017, St. Louis v. Acadia Hospital Corp., App. Div. 17-3 (January 12, 2017), ordered that the case be remanded... More
  • Continuing with the case of Flaherty v. City of Portland, WCB Nos. 05032057 & 11036148 (June 22, 2017) from the previous post, the Board found the § 327 death presumption applied to the claims filed by Mrs. Flaherty under the traditional (non-occupational) Act. The Board found this presumption shifts the burden of proof to the Employer to demonstrate the nonexistence of the presumed fact. In other words, the Employer must demonstrate, on a more likely than not basis, that the... More
  • In Flaherty v. City of Portland, WCB Nos. 05032057 & 11036148 (June 22, 2017), Timothy Flaherty worked for years as a Portland firefighter. He was diagnosed with myelofibrosis, a rare cancer/disease of the bone marrow in August 2004. Mr. Flaherty retired from the fire department on February 28, 2005. He died from myelofibrosis on August 30, 2011.Pending before the Board were two Petitions for Award – Occupational Disease Law, filed by Theresa Flaherty. The first petition was filed in Ms.... More
  • Generally speaking, the petitioning party bears the burden of persuasion to establish all elements of a claim on a more probably than not basis. Fernald v. Dexter Shoe Co., 670 A.3d 1382 (Me. 1996). Establishing the compensability of an injury through a Petition for Award is no exception. Rowe v. Bath Iron Works Corp., 428 A.2d 71 (Me. 1981). Proof of a causal relationship between an employee’s work and his or her injury is an essential element of a Petition for... More
  • The Maine Workers’ Compensation Act provides, “[w]hen as a result of injury the employee is unable to perform work for which the employee has previous training or experience, the employee is entitled to such employment rehabilitation services, including retraining and job placement, as reasonably necessary to restore the employee to suitable employment.” Further, “[i]f employment rehabilitation services are not voluntarily offered and accepted, the board on its own motion or upon application of the employee, carrier or employer, after affording... More
  • Under§ 318 of the Maine Workers’ Compensation Act:. . . From the evidence or statements furnished, the administrative law judge shall in a summary manner decide the merits of the controversy . . . . The administrative law judge, upon the motion of a party made within 20 days after notice of the decision or upon its own motion, may find the facts specially and state separately the conclusions of law and file the appropriate decision if it differs from... More
  • Under the Maine Workers’ Compensation Act (§ 102(11)(A)), an “employee” is “every person in the service of another under any contract of hire, express or implied, oral or written.”Generally, volunteers are not covered under the Workers’ Compensation Act. In Harlow v. Agway, Inc., 327 A.2d 856 (Me. 1974), the Law Court held that “[a]n essential element in creating an employer-employee relationship, and consistent with the purposes for which the [Act] was enacted, is payment, or expected payment, of some consideration... More
  • For injuries on or after January 1, 2013, partial compensation is calculated using 2/3 of the difference between the employee’s average weekly wage and post-injury earnings subject to the maximum rates. An employee’s benefits are capped after receiving 520 weeks of partial compensation benefits. This cap may be extended in cases involving extreme financial hardship or as outlined below. For injuries on or after January 1, 2013, employees whose permanent impairment exceeds 18% may qualify for an extension of the 520... More
  • The Workers’ Compensation Board appoints Administrative Law Judges to conduct formal hearings. Formal hearings are scheduled after a petition is filed. At the hearing stage, the parties exchange information, including medical reports, and answer discovery questions relating to a claim. The parties also file a “Joint Scheduling Memorandum” which lists the witnesses who will testify and estimates the hearing time needed. At the formal hearing, witnesses for both sides testify and, usually, documentary evidence is submitted. In most cases, the... More
  • Under the “retirement presumption” (§ 223 of the Maine Workers’ Compensation Act), an employee who terminates active employment and is receiving nondisability pension or retirement benefits is presumed not to have a loss of earnings as the result of a compensable injury or disease. This presumption may be rebutted only by evidence that the employee is medically totally incapacitated.By way of background, the Maine Supreme Court has found, “[t]he retiree presumption is designed to assist fact-finders in determining when an... More