Under the Maine Workers’ Compensation Act, section 217, “When 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.” This section also provides:

If 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 the parties an opportunity to be heard, may refer the employee to a board-approved facility for evaluation of the need for and kind of service, treatment or training necessary and appropriate to return the employee to suitable employment. . . .

The amended Workers’ Compensation Rules, effective September 1, establish qualifications, performance standards, and a process for appointment and review of rehabilitation providers. Specifically, the amended Rules impose minimum qualifications, which provide that a rehabilitation provider must have at least five years of experience in employment rehabilitation services, certification as a Certified Rehabilitation Counselor (CRC), a Bachelor’s degree in rehabilitation or a closely related field, and/or a Master’s degree in rehabilitation counseling or a closely related field. Appointments are for two years. A provider may apply for reappointment at, or near, the end of appointment.

The Workers’ Compensation Board (WCB) recently approved as initial appointments or reappointments seven vocational rehabilitation providers who had active plans with the WCB. The seven providers are as follows: Stephen Crate, Martin Fitzpatrick, Susan Gatti, Eileen Kalikow, Carolyn Keller, Deborah Raymond, and Gina Temple.

An employee’s participation in WCB-ordered vocational rehabilitation has significant consequences. Section 217 was amended effective November 1, 2017, to provide that an injured employee participating in WCB-ordered vocational rehabilitation has a right to ongoing incapacity benefits at the rate received at the time entering WCB-ordered rehabilitation, except under only three circumstances where benefits may be reduced:

1. When the employee has returned to work with or received an increase in pay from the pre-injury employer;
2. When the employer has reduced benefits based on actual documented earnings of the employee; and
3. When the employee has reached the durational limit on partial incapacity benefits

Under the current version of section 217, there is no requirement that benefits be returned to the total rate if an employee has already been reduced to a partial rate, but benefits may not be reduced further except under the limited circumstances above. However, this is still significant because an employee’s compensation rate going into a WCB-ordered vocational rehabilitation plan cannot be modified unless one of the three narrow exceptions above applies.