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.

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