Maine Supreme Court Affirms Decision on WCB Rule 2 §5 Termination of Benefits Prior Notice Requirement
Notice Is Required Prior to Termination of Benefits for Durational Cap Under Former WCB Rule, Even When Discontinuance Is Sought by Petition
Weekly compensation for partial incapacity benefits under the Workers’ Compensation Act are generally capped at 520 weeks unless certain conditions apply. Per Workers’ Compensation Board Rule 2, §5 an employer can discontinue partial incapacity benefits at the expiration of the 520-week period, but only if the employer has first given the employee 21-days advance notice of the upcoming date of discontinuance and of the employee’s 30-day right to request a hardship extension.
However, the Rule was amended on September 1, 2018, by adding a subsection that shifts the burden to provide notice from the employer to the Board in cases where an order of compensation has been entered. In the meantime, for petitions filed before the amendment took effect, the case of Lorraine Somers v. S.D. Warren Co has significant implications.
In Somers, Administrative Law Judge Elwin found WCB Rule 2, §5 applies only if the employer uses a 21-day Certificate of Discontinuance; it does not apply on an employer’s petition when the decision is issued after the 520-week limit has expired because the employer could not pre-determine the future “date of discontinuance” required by the Rule. Judge Elwin held that applying the rule in these circumstances would be illogical; the date benefits are “due to expire” is unknown and depends on the future issuance of a WCB decision. To avoid an “absurd result,” Judge Elwin interpreted the rule to apply only when the employer seeks discontinuance through a 21-Day Certificate, when the termination date can be identified in advance. The Board entered a decree permitting S.D. Warren and its insurer to discontinue paying Somers partial incapacity benefits when those payments had reached the 520-week statutory limit.
Somers filed a petition to have her benefits reinstated, arguing that S.D. Warren failed to comply with Me. WCB Rule, ch. 2, 5(1) (the former Rule) by not providing her with notice that she could be eligible for an extension of weekly benefits. An ALJ denied the petition.
The WCB Appellate Division vacated that decision.
The Maine Supreme Judicial Court affirmed the judgment of the Appellate Division vacating the judgment denying Somers's petition to have her benefits reinstated, holding that the Appellate Division did not err. The Supreme Judicial Court held that S.D. Warren was required to give Somers notice pursuant to the former Rule before terminating her benefits. The Court affirmed the Appellate Division's decision that the pre-Sept. 1, 2018, version of WCB Rule ch. 2§5(1), requiring specific 21-day advance notice by the employer to the employee prior to termination of benefits paid under §213(1), was consistent with the statute, even when termination of benefits after 520 weeks was accomplished via decree on a contested petition for review.