February 21, 2019 Article

Maine WC Alert: Appellate Division Rules on Apportionment Relief in the Context of Self-Insurance and “Changed Circumstances” on a Petition for Review

Maine Workers' Comp Alert

The Appellate Division recently held that apportionment relief is equally available in cases involving a single self-insured employer whose claims are administered by multiple third-party administrators (TPAs) and that separation from employment is sufficient to find “changed circumstances” on a petition for review.

In Boulanger v. S.D. Warren (WCB App. Div. No. 19-01 [January 25, 2019]), there were three work injuries at S.D. Warren, each with a different TPA. At issue was whether the administrative law judge (ALJ) erred in finding that S.D. Warren/ESIS was not entitled to apportionment against S.D. Warren/CCMSI and S.D. Warren/Helmsman; and whether the ALJ erred when increasing the partial incapacity benefit when the employee did not file a separate petition for review.


S.D. Warren/ESIS argued that the ALJ erred in finding that it is not entitled to apportionment under 354, which provides, in part: “1. Applicability. When two or more occupational injuries occur, during either a single employment or successive employments, that combine to produce a single incapacitating condition and more than one insurer is responsible for that condition, liability is governed by this section.”

The ALJ interpreted the term “insurer” to refer only to the workers’ compensation insurer. The ALJ found there was a single, self-insured employer on the risk for all three dates of injury, each represented by a different TPA, and thus no separate entity to apportion against. The Appellate Division found “[t]hat a self-insured employer may employ one or more TPAs to sort-out its overall payment responsibilities under the [Maine Workers’ Compensation] Act through the use of various payment mechanisms such as excess insurance policies does not serve to diminish or foreclose the Board’s authority in this area.” “Here, all parties with potential rights and liabilities under the Act were before the Board, including TPAs. The ALJ erred when declining to apportion the respective risk responsibility between those entities in this successive injury case.” Section 354 is equally applicable to cases involving a single self-insured employer whose claims are administered by multiple TPAs.

Petition for Review

To increase or decrease the benefit level set by a previous decision, a party must first show a change in medical or economic circumstances. On the issue of the level of incapacity, the Appellate Division found that, despite the fact there was no employee petition for review pending, the issue was raised by the employer petitions because, “[T]he fact that the employer was the petitioner did not prevent the Commission . . . from concluding that the employee’s incapacity had actually increased.” On the merits, the Appellate Division noted that at the time of the prior Decree, the employee “had an employment relationship with S.D. Warren and an expectation that the relationship would continue.” However, at the time of this litigation he no longer worked for S.D. Warren. The Appellate Division found that a separation from employment since the last Decree issued constitutes a change in circumstances sufficient to modify the compensation payment scheme.

Firm Highlights


Maine WC Alert: Appellate Division Addresses the Issue of Timely Notice in Two Recent Decisions

For claims for which the date of injury is on or after January 1, 2013, unless otherwise provided by the Maine Workers' Compensation Act, proceedings may not be maintained unless notice of an injury...


Maine WC Alert: MAE Unit Publishes Guidance on Compliance with Recent Amendments

The Maine Workers’ Compensation Board’s Monitoring, Audit & Enforcement Unit has issued a document to provide guidance on complying with certain recent amendments to the Workers’ Compensation Act in P.L. 2019, c. 344 (LD...


Maine WC Alert: Latest Appellate Division Rulings on Health Insurance Payments, Social Security Benefits

The Maine Workers' Comp Appellate Division recently issued rulings in the cases of Rich v. Maine Turnpike Authority and Butler v. City of Portland. Health Insurance Payments Made by Self-Insured Employer for Health Insurance...


Maine WC Alert: Appellate Division Rules No Consequences Under 218 for Deferment of Receipt of Old-Age Social Security Benefits

In Pratt v. S.D. Warren (No. 19-3 [WCB App. Div. April 30, 2019]), S.D. Warren appealed a decision denying its Petition for Approval of Discontinuance of Incapacity Benefits. An employer may reduce incapacity benefits...


Maine WC Alert: Appellate Division Reiterates Requirement to Trigger Retirement Presumption

Maine Workers' Comp Appellate Division Reiterates That Working in Customary Job Until Retirement Constitutes “Termination of Active Employment” Sufficient to Trigger the Retirement Presumption In Capitan v. NewPage Paper (WCB 19-10 [App. Div. April...


Preti Flaherty Ranked Among U.S. News – Best Lawyers 2020 Best Law Firms

Preti Flaherty has been named among the 2020 Best Law Firms by the U.S. News – Best Lawyers rankings. To be eligible for ranking, a law firm must have at least one attorney named...


Maine WC Alert: Appellate Division Upholds Ruling on Reinstatement Provisions and Termination of Benefits

Maine WC Appellate Division Holds That Ongoing Noncompliance with Reinstatement Provisions in Section 218 Precludes Termination of Benefits for Expiration of Durational Cap Under 213 Section 218 of the Maine Workers’ Compensation Act provides...


Maine WC Appellate Division Addresses Refusal of Suitable Work and Notice

The Maine Workers' Compensation Appellate Division recently addressed cases dealing with refusal of suitable work and notice. Both decisions rely heavily on the specific facts of each case. In the context of a refusal...


Maine WC Alert: Updated Version of Notice of Controversy (WCB-9) Must Be Used Effective February 1, 2020

Following the recent statutory changes to the Workers’ Compensation Act, the Maine Workers’ Compensation Board has updated the language in Box 22 of the Notice of Controversy. This new version should be used as...


Maine WC Alert: New Legislation Brings Procedural Changes, Benefit Modifications

LD 756 (“ An Act To Improve the Maine Workers’ Compensation Act of 1992 ”), was signed into law by Governor Mills on June 17, 2019. LD 756 has an effective date of September...