February 24, 2020 Article

WC Alert: Recent Developments from Maine's Workers' Compensation Board

Maine Workers' Comp Alert

Frank A. Graf, MD, Reappointed to Approved List of § 312 Examiners

At the February 11 meeting of the Maine Workers’ Compensation Board, Frank Graf, MD, was reappointed to the list of approved § 312 examiners. Dr. Graf is one of four orthopedic specialists on the approved list. A § 312 examination is an independent medical examination performed by a doctor appointed by the Maine WC Board. The Board maintains a list of health care providers in specific fields of expertise to serve as independent medical examiners from each of the specialties the board finds most commonly used by injured employees. An independent medical examiner must be certified in the field of practice that treats the type of injury at issue.

Ultimately, an independent medical examiner “shall render medical findings on the medical condition of an employee and related issues. . . .” The independent medical examiner shall issue a written report stating the examiner’s medical findings on the issues raised by that case and providing a description of findings sufficient to explain the basis of those findings. The Board must adopt the medical findings of the independent medical examiner unless there is “clear and convincing” evidence to the contrary in the record that does not support the medical findings. The Board shall state in writing the reasons for not accepting the medical findings of the independent medical examiner. The Maine Supreme Court has interpreted the clear and convincing evidence to the contrary standard to require a showing “that it was highly probable that the record did not support the [independent medical examiner’s] medical findings” (Dubois v. Madison Paper, Co., 2002 ME 1). Further, where the administrative law judge (ALJ) adopts the § 312 examiner’s findings, the decision may only be reversed on appeal if the findings are not supported by any competent evidence of the records and shows no reasonable basis to support the decision. This is a high standard.

Maine Supreme Court Agrees to Take Appeal in Potter V. Cooke Aquaculture

In Potter v. Cooke Aquaculture (Me. WCB 19-37 [App. Div. October 18, 2019]), the insurer appealed a decision of an ALJ finding the employee’s claims do not fall under the exclusive jurisdiction of the Jones Act, 46 U.S.C. section 30104. The Workers’ Compensation Board’s Appellate Division found the employee’s claims not to be under the exclusive jurisdiction of federal law and that the claims were appropriately handled under the Maine Workers’ Compensation Act. The Law Court hears only discretionary appeals from the Workers’ Compensation Board Appellate Division, entertaining such appeals sparingly.