Are you Properly Discontinuing Workers’ Compensation Benefits in Maine? Read on to Find out.

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Under Section 213 of the Maine Workers’ Compensation Act, employees are entitled to up to 520 weeks of lost time benefits when their incapacity is partial (they remain able to work) and their whole person permanent impairment does not exceed statutory thresholds. Once permanent impairment below the threshold is established and 520 weeks of benefits have been paid, an employer is entitled to unilaterally discontinue partial incapacity benefits being paid voluntarily or to seek a Board Order allowing it to discontinue benefits being paid under a Board-ordered payment scheme.

Before discontinuing benefits in either scenario, employers need to be aware that the Board’s Rule Ch. 2(5)(1) requires them to send written notice of the discontinuance to the employee at least 21 days before the expiration of benefits.

The Board requires that the following paragraph be included in the notice verbatim:

If you are experiencing extreme financial hardship due to inability to return to gainful employment, you may be eligible for an extension of your weekly benefits. To request such an extension, you must file a Petition for Extension of Benefits within 30 calendar days of the date that benefits expire, or, in cases where the expiration date is contested, within 30 calendar days of a final decree as to the expiration date.

Notice must be sent even if a decree finds that a discontinuance is in order! Please keep in mind that failure to send the required notice will automatically extend an employer’s obligation to pay lost time benefits for the period that the notice was not sent.

We urge employers and insurers to ensure that policies and procedures are in place to send the required notice to employees whenever benefits are discontinued due to the expiration of the Section 213 durational cap.

Moving forward: Always a win-win!

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“The secret of change is to focus all of your energy, not on fighting the old, but on building the new.” Socrates

While it may be difficult to know if in fact Socrates actually wrote those exact words, the concept they encompass certainly seems reasonable, if not inspired. Why spend so much time worrying about and focusing on the past, when you could, instead, find ways to move forward and make the best of a situation? Trying to change the past is like trying to fix a flat tire by rolling the car backwards to get off that nail…it just doesn’t work! The better solution is to get out the jack, get out the spare, and change the tire! Or find someone to help fix it. In short, focus on finding a solution to the problem at hand, rather than exhausting yourself trying to undo what can’t be undone.

How much time do we spend fretting and arguing, especially in the legal world, over what has happened? Some might say that, from a legal standpoint, that’s the majority of what we are doing…it’s what we are supposed to do. We are supposed to get to “the TRUTH.” Yet, in actuality, whatever has happened is water under the bridge, and often, the better approach is to focus on moving forward with solutions that make situations bearable or even better for all the parties.

For instance, a recent seminar discussed the creative methods utilized by the Maine Drug Courts, where they take a team approach to address somewhat competing issues of public safety and drug addiction. In those cases, defendants meet directly with the judge and other team members on a regular basis as part of a drug rehabilitation plan. As perpetrators, they are held accountable for their past actions, but as human beings they are treated with respect and a level of understanding moving forward. Defendants are supported through the process, with an eye towards recovery and hopefully a new life that doesn’t involve criminal activity. It’s a win-win for everyone when it works! Given the ever growing drug crisis in the state, these special courts are balancing the need to address serious criminal activity with the reality that addiction is often a major contributing factor to the behavior.

Someone mentioned at the seminar, “Wouldn’t it be great if all our courts could be like that?” Would we get different or better results if, in an ideal world, a supportive team could come in and help to resolve all litigated issues? Would people who felt wronged choose to forgive, rather than litigate? Would wrongdoers see the error of their ways and change their behavior? While such an approach is not likely to solve all legal woes, the concept of moving forward with solutions is always a winner. That’s why it doesn’t really matter whether Socrates actually wrote those words or not…the point is how we use them.

Reflections from a Trip to Oz

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“There’s no place like home, there’s no place like home.” Dorothy

In 2010, after practicing law in the Great State of Maine for 18 years, I had the brilliant notion of ditching my secure little life in Portland, selling everything I owned, with the exception of the few precious items that would fit in my trusty Subaru, quitting my profession, and heading off to live over the rainbow in the Southern California. For all intents and purposes, this was not such a bad idea. What it did, besides keep me warm and snow-free for a full five years, was to give me some much needed perspective. What did I confirm? Two things: 1) Change is almost always good; 2) There’s truly no place like home…especially when home is Maine.

The thing is, as Dorothy learned, paradise is wonderful, but all the sunny rays shining down on the world can’t make up for the warmth of people and places you love and that love you. I learned an entirely new business while in San Diego, met a boatload of people, and rediscovered the ability to effectively change my entire life…again. (This was not my first rodeo being a transplant.) But then I was watching a video in which a friend kept repeating, “We all need community.” It hit me hard. After five years of moving as far away from law and snow as I could get, I knew there was more to life than a sunny yellow brick road and emerald palm trees…and I was missing it.

I grew up in Hampden, graduated from the University of Maine in Orono, and still had multiple family members in the Bangor area. My 91 year old mother would only be around another, maybe 10 years? 5? 1? It was time to reconnect with that part of my life, and moving back to Bangor, where I had not lived for 26 years, was the perfect solution. No place had ever felt quite so much like home, and coming back seemed almost destined.

Fortunately, I had a variety of options regarding where to land professionally, but Tucker Law Group presented some compelling arguments for why they were the best choice. Having known these gentlemen from my prior workers’ compensation defense days, the decision was pretty much a no-brainer. While some might think it would be a challenge for a woman to enter an all-male firm, these guys are truly the best. They are smart, efficient, and occasionally quite humorous. And they play a mean softball game, to boot! As a bonus, the support staff is top-notch and a delight to be around. Frankly, I don’t think I could have found a better fit.

As for coming back to law? Well, in my world, there’s just no substitute for using your noggin on full-throttle. Having always been a problem solver, and a huge Perry Mason fan, law has been a natural fit. While the break was good…like an extra long working sabbatical…it feels even better to kick it back into gear.

Of course you’re asking, “What about the snow…are you crazy?”…I’ll update you in February. For now, I’m happy to say “Thanks for the memories, Oz!” and “Greetings, from Bangor, Maine!”

Carol McMannus

Is Medical Marijuana Compensable in Maine? Read on to find out!

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A Hearing Officer from the Maine Workers’ Compensation Board issued what is sure to be the first in a long line of decisions relating to the compensability of medical marijuana. In the case of Crandall v. University of Maine System, Hearing Officer Elizabeth Elwin applied DOJ guidelines  to determine whether, by paying for medical marijuana, the employer and insurer could be subject to criminal prosecution and ultimately ordered them to pay for Mr. Crandall’s medical marijuana.

After determining that Mr. Crandall’s medical marijuana use was having a positive impact on his shoulder injury management, the hearing officer reviewed a list of “enforcement priorities” issued to federal prosecutors by the Department of Justice to assess the whether or not the DOJ was likely to prosecute an insurer for, in effect, buying marijuana. Elwin pointed out that the DOJ has determined that unless the conduct in question implicates one or more of these “priorities”, it is not worth their resources to pursue prosecution, especially when it comes to seriously ill individuals and their caregivers. The DOJ’s priorities include the prevention of distribution to minors, diversion of marijuana from a state where it is legal to where it is not, violence in cultivation and distribution, and drugged driving. The Hearing Officer ultimately found that none of the priorities were implicated in the case and the employer/insurer was unlikely to be prosecuted for issuing payment.

It is virtually guaranteed that this case will make its way to the Board’s Appellate Division, and very possibly the Supreme Judicial Court. In the meantime, other hearing officers and parties across the state have a well thought out decision from which to compare their cases.

To read the full decision, click on the following link: Crandall decree 7-15-15

Peace of Mind and the Employer-Sponsored Athletic Event

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Spring is finally here in Maine. After a long and snowy winter, many are ready to spend as much time as possible outdoors. Employers too are welcoming the season. Many are organizing company athletic teams and sporting events, in sports ranging from softball and golf to ultimate frisbee.

Some employers worry that by holding sporting events, they could be exposing themselves to liability under the Workers’ Compensation Act. Fortunately, that is not necessarily the case. The Workers’ Compensation Act specifically excludes voluntary participants in employer-sponsored athletic events from the definition of “employee.” That means that employers can organize voluntary sporting events without excessive worry about risking a costly workers’ compensation claim.

So, from all of us here at Tucker Law Group, play ball!

Appellate Division Addresses Res Judicata

The Maine Workers’ Compensation Board Appellate Division’s recent decision in Gregory Traussi v. B&G Foods, Inc. could spell trouble for employers and insurers if the decision is not reversed on appeal.

In this case, an employee sustained work-related low back injuries in 2006, 2010, and 2011. A prior decree found that the employee had suffered a closed-ended period of earning incapacity related to the 2006 and 2010 dates of injury which ended on November 7, 2010. In the most recent round of litigation, the employee sought benefits for the new 2011 back injury and to reinstate benefits for the 2006 and 2010 injuries.

In the appealed decision, the hearing officer found that the 2011 injury was a temporary aggravation which had ended. She also found that the employee’s ongoing disability was related to his 2006 injury and reinstated benefits for that injury. However, she found that he failed to prove that the 2010 injury contributed to his ongoing incapacity after November 7, 2010 and denied reinstatement of benefits for that injury.

The employee appealed, arguing in part that because the previous decree had found that his closed-ended period of incapacity was related to both the 2006 and 2010 injuries, it is now res judicata (meaning “a matter already judged”) that his current incapacity was related to those injuries as well. A determination is res judicata when it was (1) actually litigated, (2) determined by a final and valid judgment, and (3) essential to the prior decision.

In a 2-1 majority decision, the Appellate Division agreed with the employee. It concluded that because the prior decree found the closed-ended period of incapacity that ended on November 7, 2010 was related to the 2006 and 2010 injuries, the issue of whether ongoing incapacity was related to those injuries could not be re-litigated.

One member of the panel dissented. He noted that the employee bears the burden of proof of incapacity on a petition to restore benefits. He also argued that the issue of whether any ongoing incapacity is related to the 2006 and 2010 injuries cannot be res judicata, because it would not have been “essential” to the prior decision: In the prior litigation, the employee failed to prove incapacity beyond November 7, 2010. The dissent also noted that, unlike a finding of whether an injury is work-related, the issue of whether an employee’s ongoing incapacity is related to a work injury is subject to change over time, and therefore should not be given res judicata effect.

This decision is troubling and arguably shifts the burden of proof on a petition for restoration from the employee to the employer. It allows the employee to use a finding that a work injury at one time caused incapacity to escape the burden of proving that the work injury continues to cause incapacity indefinitely. It is possible that the case will be appealed to the Maine Law Court. The attorneys at Tucker Law Group will be watching this case with interest and will post updates accordingly.