Three recent Maine Supreme Judicial Court decisions affect Maine workers' compensation:

1. Thompson v. Earle W. Noyes & Sons, Inc. Employees do not automatically forfeit wage loss benefits when they accept alternate employment at a lower pay than the existing post-injury employment.

• The employee resigned his post-injury position at Noyes and accepted full-time employment with a different employer that paid less than his position at Noyes. Noyes argued this constituted refusal of a bona fide offer disqualifying the employee from receiving additional benefits under Section 214(1)(A).
• The Court rejected Noyes' argument that accepting alternative employment earning less bars recovery of additional partial compensation. The Court sent the case back to the WCB to determine whether the employee had "good and reasonable cause" and thereby accepted an offer of reasonable employment.

The Lesson: Refusal of a higher paying suitable post-injury job by itself will not disqualify an injured employee from receiving additional wage loss benefits if the employee is found to have acted with good and reasonable cause.

2. Legassie v. Securitas, Inc. Employer responsible for injury-related incapacity to which a settled WC injury contributes is entitled to an offset for the portion of incapacity attributable to the settled injury.

• The employee settled a 1995 Maine WC back injury. He sustained another Maine WC back injury in 2003. The Maine WCB determined that 50% of the employee's post 2003 injury incapacity was due to the settled 1995 injury and ordered a 50% setoff of the employee's ongoing incapacity benefits.
• The Court upheld the decision reasoning the offset is appropriate to eliminate an employee double recovery.
• The Court also held that such an employee may be entitled to receive benefits based upon a higher average weekly wage attributable to the prior settled claim with proof that the subsequent AWW is lower because of the effects of the earlier injury.

The Lesson: Employers and insurers should obtain a complete history of an injured employee's prior workers' compensation claims and consider whether any settled claim involves an injury that may contribute to a current period of incapacity, in which case an offset may be available.

3. Wilson v. Bath Iron Works The Maine WCB two year statute of limitations runs from the date or injury or the filing of a First Report of Injury, whichever is later, even if there was no obligation to file the First Report at the time of injury.

• The employee was found to have sustained an injury July 1, 2000. She did not then miss time from work. She filed a petition seeking lost time benefits in 2004, at which time BIW filed a First Report.
• The WCB found that the claim was not barred by the two-year statute of limitations because the limitations period did not begin to run until the filing of the First Report in 2004.
• The Court agreed reasoning the plain language statute specifically uses the phrase "whichever is later", and makes no exception claims for which the Act does not require that a First Report be filed at the time of injury.

The Lesson: Even though not required by the Act, employers and insurers should consider filing the First Report with the WCB upon notice of an injury, even though lost time is not asserted.

Important Update:

The WCB has begun the process to adopt a new rule proposing a permanent impairment threshold of 11.7% for injuries occurring on or after January 1, 2006. The current threshold for injuries occurring on or after January 1, 2004 is 13.4%. The rule is not yet adopted.

If you would like additional detail, or would like to discuss any of the decision and their implications, please contact Evan Hansen, Nelson Larkins, or James Bush at Preti Flaherty by email at ehansen@preti.com; nlarkins@preti.com; or jbush@preti.com or call 207.791.3000.