April 14, 2020 Article

Maine Workers' Comp Alert: Areas of Consideration Due to COVID-19

Maine Workers' Comp Alert

This alert addresses certain areas of concern with respect to the COVID-19 pandemic and Maine Workers’ Compensation. This alert touches upon new issues to consider, issues of concern for existing claims, and general concerns in the context of settlement and valuation of claims.

The Statistics to Date

  • As of the week of April 10, the Maine Workers’ Compensation Board reported that there have been 264 COVID-19-related cases reported, broken down as follows:
    • 208 lost time
    • 21 medical-only
    • 35 incident-only claims.

Issues of Concern For New Claims

  • If an employee develops COVID-19, this may prompt a formal claim under Maine’s Workers’ Compensation Act (the “Act”).
  • Coverage under the Act is limited to injuries or occupational diseases that “arise out of and in the course of employment.” 39-A M.R.S.A. § 201(1).
  • Most employees are likely to allege traditional workers’ compensation claims in the context of COVID-19 (rather than occupational disease claims).
  • An injury is not compensable if the employee was at no greater risk than the general public. The employee bears the burden of proof. When analyzing whether an injury arose out of and in the course of employment, injuries that are “a consequence of life in general” must be separated from injuries that are a “consequence of industrial activity” with only the latter being compensable. An injury arises out of and in the course of employment, “when there is a sufficient connection between the injury and the employment.”
  • Key questions: (i) was the development of the disease likely caused by the work environment?; and (ii) is it possible to know where an employee may have been exposed?
  • As with other injuries, an employee must meet his or her burden to prove that the employee acquired COVID-19 from some risk specific to employment, beyond that which the general public is exposed to.
  • Certain professions/work environments may be more directly linked with transmission of COVID-19. This must be reviewed depending upon the facts. Also, if COVID-19 becomes more widespread, it may be more difficult for an employee to prove a condition is work-related rather than an ordinary injury/disease of life to which the general public is exposed.
  • Fewer workers may make workers' compensation claims during stay-at-home orders, with less people working. On the other hand, there may be significant increases in claims associated with remote work.

Issues of Concern for Existing Claims

  • With increased job losses and layoffs there may be more claims for increased incapacity.
  • Because of extensive changes in the workplace, and the number of individuals out of work, identifying light-duty and modified work with existing employers may become more difficult.
  • There may be additional delays in litigation, scheduling of hearings, mediations, and settlement hearings. The system is attempting to adapt with phone mediations and remote hearings, but the State independent medical examination process has been stayed.
  • There may be delays in medical treatment for individuals with worker's compensation injuries. Injured workers might delay in-person medical treatment because of stay-in-place directives. Remote treatment options are being developed but they may create their own issues.
  • Economic loss claims may become more expensive. The labor market has deteriorated; it is uncertain when and how slowly the Maine labor market will recover.

Concerns and considerations with respect to resolution of claims

  • There will likely be less certainty in the context of settlement. Some employees may desire to have money at the current time, even if it reduces the value of a long-term claim. Employers and insurers may wish to settle based on current exposure projections. The value of settlement may be more expensive. The discount rate is changing. Earning valuations have generally decreased and will likely remain decreased until there is a recovery from this anticipated recession. This will likely make it more difficult to discount the value of a claim based upon an employee’s assumed earning capacity.

Looking forward

There are several considerations to keep in mind when dealing with COVID-19-related workers’ compensation claims. There are also many considerations for existing claims affected by this pandemic. We will continue to monitor the situation. Stay tuned for further updates on this evolving subject matter.

Firm Highlights


Attorney Evan Hansen Selected by Peers as “Lawyer of the Year” in Best Lawyers in America 2021

Preti Flaherty attorney Evan Hansen has been recognized in Best Lawyers in America 2021 as the “Lawyer of the Year” for the Portland region in the field of Workers' Compensation Law - Employers. Inclusion in...


U.S. News – Best Lawyers Ranks Preti Flaherty Among 2021 Best Law Firms

Preti Flaherty has been named among the 2021 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 Workers' Comp Alert: Appellate Division Affirms Notification Requirements for Occupational Disease Claims

WC Appellate Division Finds Timely Notice in Context of Occupational Disease Claim; No Independent Obligation to Notify Employer’s Insurer Where Not Required by Statute Timely notice is critical for a viable claim under the...


Maine Workers' Comp Alert: Update on Appellate Division Findings on Notice of Injury Requirements

Maine WC Appellate Division Affirms Decision Finding Untimely Notice of Injury; Reiterates Requirements for Timely Notice As background, the notice period is 90 days for dates of injury between January 1, 1993, and January...


Maine Workers' Comp Alert: Updates from the WCB October Monthly Business Meeting

The Maine Workers’ Compensation Board met remotely on October 13, 2020, for its monthly business meeting. Following are some developments with respect to reappointments, the appointment of a Section 312 examiner, and claims related...


48 Preti Flaherty Attorneys Selected by Peers for Inclusion in Best Lawyers in America 2021, Including 4 “Lawyers of the Year”

Forty-eight Preti Flaherty attorneys have been named to Best Lawyers in America 2021, including four recognized on the inaugural “Ones to Watch” list for attorneys earlier in their careers and four “Lawyer of the...


Maine Workers' Comp Alert: Appellate Division Affirms Burden of Proof in Death Presumption

WC Appellate Division Affirms Placement of Burden of Proof on Employer to Disprove Facts Presumed Under the Death Presumption A recent decision from the Appellate Division centers on the burden of proof in the...


Maine Workers' Comp Alert: Board Updates Fee Schedule

The Maine Workers’ Compensation Board has completed its annual update with respect to Appendix III (inpatient facility fees) for dates of discharge on or after October 1, 2020, in accordance with Title 39-A M.R.S.A...


Maine Workers' Comp Alert: WCB Announces Updates to Several Forms

The Maine Workers’ Compensation Board has revised several forms, which are now available here . The WCB-4 (Discontinuance/Modification) has been divided into two new forms, WCB-4D (Discontinuance) and WCB-4M (Modification). The Discontinuance, Modification, and...


Preti Flaherty COVID-19 Resources

In response to the ongoing COVID-19 pandemic, Preti Flaherty's attorneys have maintained a constant stream of the most up-to-date information and resources for our clients, business partners, and others struggling to navigate these complex...