Introduction to the Seventh Edition

INTRODUCTION TO THE EIGHTH EDITION

This GUIDE has been written by ROBINSON, KRIGER & McCALLUM to assist our workers' compensation clients in navigating the maze of Maine workers' compensation laws, rules and practices. For situations beyond the scope of the GUIDE, or anytime you want more information, we invite you to call us at Robinson, Kriger & McCallum ((207) 772-6565). Any attorney in the Workers' Compensation Department will be glad to help.

Chapters in the GUIDE are arranged in the same order that topics generally arise during the administration of a claim. There is also an extensive subject matter index for finding topics associated with many key words.

RK&M updates the material covered in the Adjuster's Guide on a bi-monthly basis in COMP, The Maine Workers' Compensation Journal. This useful periodical covers case decisions, rule changes, proposed and final legislation, news about the Maine Workers' Compensation Board, and other matters. If you do not already receive COMP, please call our office and ask to speak with the COMP subscription coordinator.

We are always glad to get suggestions or comments about the GUIDE. Please call or write: Editor, Adjuster's Guide, Robinson, Kriger & McCallum, P.O. Box 568, Portland, ME 04112-0568. (Tel. (207) 772-6565; Fax 207-773-5001; E-mail attorneys@rkmlegal.com).

A. Effective Dates of Law Amendments

The Maine Workers' Compensation law was originally adopted in 1916, but has been amended many times since then. The entire law was repealed and replaced by the Workers' Compensation Act of 1992 (although many of the old provisions were included in the new Act). In adjusting claims, it is important to know which version of the law applies in a given case. Amendments always apply to any injuries occurring on or after the effective date, but do not necessarily apply to earlier dates. The Law Court has held that, generally speaking, amendments which pertain to procedure are retroactive, while amendments which pertain to benefits are not. As discussed below, the 1992 revision contains a provision that expressly spells out which of its provisions apply retroactively.

B. A Brief History Of Maine WC Amendments

There are two reasons to be aware of the changes in workers' compensation law prior to the 1992 Act. First, many important benefit provisions will apply to injuries that occurred while those laws were in effect (and will therefore be noted in the GUIDE). Second, an understanding of the earlier phases of the Workers' Compensation Act sometimes helps to clarify the meaning of the current law.

Maine workers' compensation law was significantly liberalized during the twenty years from 1965 to 1984, and has gradually become more conservative since that time. The most important amendments included during the years through 1984 are:

• Reducing the waiting period from seven to three days;

• Increasing the maximum weekly benefit in stages from 100% to 200% of the state average weekly wage (it was subsequently reduced slightly to 167% in 1981);

• Indexing weekly benefits for inflation;

• Deleting the "by accident" requirement, which facilitated claims for "gradual" injuries;

• Expanding the scope of reimbursable chiropractic treatment;

• Eliminating caps on the cumulative amount of weekly benefits and the maximum number of weeks of benefits that could be paid;

• Adding a benefit for permanent impairment separate from and in addition to the standard weekly benefit;

• Adopting the "Early Pay System" in 1984, which narrowed the circumstances when an employer could suspend or reduce benefits without advance authorization; and

• Requiring employers to pay the employee's reasonable attorney's fees.

During this same time frame, several important WCC Appellate Division and Law Court decisions added to the liberalizing trend by:

• Liberalizing the "work search" rules that allow partially disabled employees to receive total compensation;

• Adopting the "comparative medical evidence" rule, making it more difficult to reduce benefits in an improving job market;

• Holding that the combined effects of injuries that exacerbate pre-existing conditions to any extent are generally compensable;

• Expanding coverage of gradual mental stress injuries; and

• Including fringe benefits with average weekly wages in certain circumstances.

After 1984, the tide turned and the legislature began the process of shrinking the availability of benefits. Many of these reforms were retained by the "Blue Ribbon Commission" which drafted the 1992 Act following extensive public hearings. Some of the other provisions in the 1992 Act were taken from the Michigan Workers' Compensation Act. Key reforms included in the 1992 Act are:

• Increasing the waiting period back to seven days;

• Eliminating inflation adjustments of both total and partial benefits;

• Reducing the maximum benefit to 90% of SAWW;

• Reimposing a limitation on the maximum duration of partial compensation for less serious injuries (the earlier 11/20/87 amendment made it 400 weeks after MMI, and the 10/17/91 amendment made it 520 weeks after the date of injury);

• Adding the concept of "new wage earning capacity" after 100 weeks back on the job;

• Repealing the separate permanent impairment benefit, but granting minimum periods of weekly total disability benefits for certain scheduled losses (very similar to pre-1965 law);

• Adding procedures designed to manage and limit medical utilization;

• Giving employers and insurers greater discretion to pay "without prejudice," thus retaining the right to later reduce or terminate benefits without prior authorization;

• Expediting review and possible restoration of benefits when benefits are suspended;

• Requiring pre-hearing mediation; and

• Requiring employees to pay their own attorney's fees.

C. Effective Date and Retroactivity

The new Act became effective on 01/01/93. Thus, all injuries occurring on or after the effective dates are governed entirely by it. Some changes to the new Act have been introduced since that time, most of which apply only to injuries on or after the effective date of the particular legislation enacting the change.

Injuries before 01/01/93 are governed in part by the 1992 Act and in part by the law in effect on the date of the injury. Everything in the 1992 Act generally applies to all earlier dates of injury except for the following sections:

Sec. 211 - Maximum benefit;
Sec. 212 - Total incapacity;
Sec. 213 - Partial incapacity;
Sec. 214 - Determination of partial incapacity;
Sec. 215 - Death benefits;
Sec. 221 - Coordination of benefits;
Sec. 306 - Statute of limitations;
Sec. 325 - Attorney's fees.

The prior law in effect on the date of injury continues to apply in the substantive areas listed above. In addition, other topics covered under prior law sometimes continue to apply to earlier dates of injury because the topics listed above are dependent on those additional sections. For example, the prior law on inflation adjustments continues to apply to pre-1993 injuries because it relates to the amount of total or partial compensation payable (Section A-10).

Various provisions of the new Act provide greater benefits to employees, and (with the exception of the areas noted above) those provisions will apply to pre-1993 injuries. For instance, average weekly wage under the new Act may sometimes include fringe benefits. Generally speaking, all injuries (whether pre-dating or post-dating the new Act) will be entitled to this more favorable "average weekly wage" treatment.

Throughout the GUIDE, we will indicate which version of the law applies for each topic covered.

D. Citations in the GUIDE

Most explanations in the GUIDE are followed by a section number in parenthesis, which is a reference to the applicable statutory provision, either to the 1992 Act (Title 39-A, effective 01/01/93) or to prior law (Title 39). Where no citation is given, the explanation usually derives from case law.