May 2, 2018

Maine WC Update: New Rules Set to Go Before Workers' Comp Board

Maine Workers' Comp Update

The Maine Workers’ Compensation Board (WCB) Rules Task Force has worked on developing a set of rule proposals. These proposed rules will go before the WCB for a public hearing on May 8, 2018. The following are some highlights:

Notice to an out-of-business employer (WCB Rules c. 1, § 1-A)

The proposed rule provides that an employee can give notice of an occupational disease or injury to the Board when an employer is out of business and its insurer is unknown. Rule 1.1 is not triggered until a claim for benefits is received by the insurer, third-party administrator, or the employer’s self-insurance administrator.

Fringe benefit inclusion in average weekly wage (WCB Rules c. 1, § 5(1)(A)(3))

The proposed amendment provides that fringe benefits include the employer’s cost to provide pension benefits, including 401(k) matching funds, but excluding 401(k) matching funds which are reduced, but not completely discontinued.

Average weekly wage calculation (WCB Rules c. 1, § 5(2)(C))

The employer/insurer may adjust the average weekly wage once using a WCB-4 within 90 days after making the first lost-time payment to correct an error. The employee may dispute this if the adjustment decreases compensation. If greater than 90 days, the employer/insurer must use a WCB-8.

Medical only claims: First Report of Injury (WCB Rules c. 3, § 1-A)

Under the amendment, an employer must complete a First Report (WCB-1) within 7 days after the employer receives notice or knowledge of an injury that requires the services of a health provider but has not caused the employee to lose a day’s work. A copy of the First Report must be sent to the employee and the employer’s insurer within 24 hours after completion.

Section 312 Independent Medical Examiners (IMEs) (WCB Rules c. 4, § 4(1))

A proposed amendment provides that, in the event a § 312 exam is scheduled to determine apportionment responsibility between employers, the employer/insurer that requested the exam pays for the exam and report unless otherwise agreed between the parties. If any employee requests the exam, all employers/insurers that are parties to the proceeding must, unless agreed otherwise, split the cost equally.

Payment procedures (WCB Rules c. 8, § 11(2))

With respect to reductions or discontinuances pursuant to 39-A M.R.S.A. § 205(9)(A), under the proposed Rule, an employer may discontinue benefits regardless of actual earnings if:

  1. The employee is released to return to work without restrictions or limitations due to the injury for which benefits are being paid by the employee’s treating health providers;
  2. There are no conflicting medical records with respect to the lack of restrictions or limitations due to the injury for which benefits are being paid; and
  3. The employee, instead of returning to work, receives vacation pay, paid time off its equivalent, or holiday pay instead of regular wages.

Payment procedures (WCB Rules c. 8, § 18(1))

A proposed amendment would provide that parties will now be able to discontinue benefits during a period covered by a 21-day letter with a WCB-4A.

Coordination of benefits paid pursuant to paid time off or equivalent plans (WCB Rules c. 9, § 3(2)(2)(A-C))

The Rule would clarify how paid time off is to be treated and coordinated. The proposed Rule provides:

A. Paid time off or equivalent plan means an employer-paid benefit that covers both sick leave and vacation leave.

B. If a paid time off or equivalent plan designates a specific portion of the benefit as sick leave, an employer/insurer may reduce benefits, as set forth in 39-A M.R.S.A. § 221(3)(A)(2) by the amount designated as sick leave.

C. If a paid time off or equivalent plan does not designate a specific portion of the benefit a sick leave, an employer/insurer may reduce benefits, as set forth in 221(3)(A)(2), by 25% of the paid time off or equivalent plan payment received by the employee.

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