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

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medical marijuana

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

Your Employee is Out of Work for a Non Work-Related Injury: Do You Owe Workers’ Compensation Benefits? The Answer May Surprise You

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broken leg

In a pair of recent decisions, the Appellate Division of the Maine Workers’ Compensation Board has significantly restricted the availability of the “subsequent nonwork-related injury” defense to workers’ compensation claims. For the first time, Maine employees who are out of work for non work-related injuries or diseases sustained may be entitled to lost time benefits simply by soliciting after-the-fact medical restrictions from doctors hired by their attorneys.

For several years, the rule governing subsequent non work-related injuries in Maine was that a subsequent injury could not be used to increase the level of benefits to a disabled worker. See, Roy v. BIW, 2008 ME 94. However, in Michael Parent v. NewPage Corp. the appellate panel found that an employee who was working full time, earning his full wage at the time he suffered a totally disabling non work-related psychiatric illness was nevertheless entitled to lost time benefits on the basis of medical restrictions for a work injury that a doctor imposed on him after he was already out of work for the non work psychiatric illness. More recently in Pastula v. Lane Construction, the Appellate Division upheld a hearing officer’s finding that an employer who had been accommodating an employee without loss of income was responsible for total workers compensation benefits when that employee was no longer able to work as a result of a subsequent non work psychiatric injury.

This disturbing trend essentially makes employers and workers’ compensation insurers in Maine subsidizers of long-term disability insurance for all of their workers. Please feel free to call us for a consultation on how this and other recent developments in workers’ compensation may affect your business.

Peace of Mind and the Employer-Sponsored Athletic Event

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baseball

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

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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.

Maine Supreme Court “treadmill case” could signal trouble on the horizon for employers of work-from-home employees

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Considering how common it is for employees to work from home offices and check work phones at home, the Sullwold decision could mean trouble on the horizon for employers.

Considering how common it is for employees to work from home offices and check work phones at home, the Sullwold decision could signal the start of a troubling trend for Maine employers.

Recently the Maine Law Court upheld an award of death benefits to the estate of a Salvation Army portfolio manager who died from a heart attack while walking on a treadmill in his home office.   He was found dead on a work day near a running treadmill, with a TV tuned to a financial news channel and his work-issued smartphone nearby. Continue reading →

Maine Workers’ Compensation Appellate Division Addresses Statute of Limitations

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In the recent case Estate of Ralph Zeitman v. WW Osborne, a widow whose petition for death benefits against five employers was dismissed on statute of limitations grounds prevailed on appeal to the Appellate Division of the Maine Workers’ Compensation Board. The widow, Ms. Zeitman, filed her petitions against the employers twelve years after the death of her husband. The employers filed a joint motion to dismiss, raising the two-year statute of limitations period on death claims. Because he was asked to decide the issue on a motion, rather than after a hearing, the hearing officer made every inference in favor of Ms. Zeitman, including assuming that she was operating under a mistake of fact as to the reason of Mr. Zeitman’s death until shortly prior to the filing of the petitions. Despite the assumption of a mistake of fact, the hearing officer found that twelve years was not a “reasonable time” within which to file petitions and granted the motion to dismiss.

The Appellate Division reversed, finding that, in the event of a mistake of fact as to the cause of death, the two year statute of limitations did not begin to run until the widow’s mistake of fact was cured. The case was remanded to the hearing officer for further proceedings consistent with the decision.

This case provides employers and insurers with some additional clarity regarding the mistake of fact exception to the statute of limitations defense. It is now clear that the limitations period does not begin to run until the mistake of fact is cured, effectively entitling the claimant to the full limitations period after she becomes aware that she has a viable claim.

Maine Workers’ Compensation Board updates medical fee schedule with new fees

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This month the Maine Workers’ Compensation Board completed its annual update to the medical fee schedule.  The fee schedule governs the amounts employers and insurers must pay for physician, outpatient, and inpatient services.  Each year under Title 39-A §209-A the Board adopts the current CMS relative values and Current Procedural Terminology (CPT) codes, and applies the Board’s conversion factor to determine the new fee for each service.  In addition, the Board will vote on a new medical fee rule in January 2015 and issue the rule for public comment.

A spreadsheet of updated weights and fees may be found on the Maine Workers’ Compensation Board homepage.  For questions on the updated fee schedule, contact the attorneys at Tucker Law Group.

Discontinuing Workers’ Compensation Benefits Due to Expiration of 520 Week Cap

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DID YOU KNOW…

IF YOU ARE DISCONTINUING BENEFITS IN  A MAINE WORKERS’ COMPENSATION CASE DUE TO THE EXPIRATION OF THE 520 WEEK CAP YOU MUST:

File a 21 day discontinuance and provide the employee the following information at least 21 days in advance of the date benefits are due to expire :

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.

Failure to send this required notice will automatically extend the employee’s entitlement to lost time benefits for the period that the notice was not sent. Maine WCB Rules Ch. 2 §2.

Whether this notice must be provided when a 21 day discontinuance is not available because you are paying per Order or Decree of the Board is not clear-so we say, WHEN IN DOUBT, WRITE IT OUT!!!

Contact the attorneys at Tucker Law Group for more information on this and other topics in Maine Workers’ Compensation law.

Workers’ Compensation Exclusive Remedy Provisions are under Attack – Could Maine’s Be Next?

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One of the central features of Maine’s workers’ compensation statute is its tort immunity or “exclusive remedy” provision.  This provision represents a trade-off: In exchange for compensating work injuries regardless of employee fault, employers are exempt from civil suits involving injury or death arising out of and in the course of employment – and the high defense costs, high damage awards, and pain and suffering damages such suits can entail.  This “grand bargain” has been a defining feature of Maine’s workers’ compensation system since its inception nearly 100 years ago.

However, in other jurisdictions with similar provisions, this most basic feature of workers’ compensation law is now under fire.   Continue reading →