Total Incapacity

Except for cases where petitions were pending before June 30, 1998, the law in effect on the date of injury controls the calculation of total and partial compensation (39-A M.R.S.A. §201(6)). The applicability of any inflation adjustment also depends on the law in effect on the date of injury (see INFLATION ADJUSTMENT).

A. Injuries Before 11/20/87

The weekly benefit amount is two-thirds of the fully inflated average weekly wage (see AVERAGE WEEKLY WAGE). There is no cap on the duration of benefits, and efforts to establish implied limitations (such as withdrawal from the workforce at the time of old age) have not proven consistently successful. A permanent total claimant is therefore generally entitled to lifetime benefits until the employer can establish actual recovery of full time earning capacity (39 M.R.S.A. §54). The retirement presumption under 39-A M.R.S.A. §223 may apply if the claimant was working at time of retirement.

B. Injuries From 11/20/87 to 12/31/92

The weekly benefit is two-thirds of the average weekly wage as defined at the time of injury. There is no cap on the duration of benefits provided the employee remains totally incapacitated (if not, see PARTIAL COMPENSATION) (39 M.R.S.A. §54-B, eff. 11/20/87 and as amended by statute eff. 10/17/91).

C. Injuries on and After 01/01/93

The weekly benefit is 80% of after-tax AWW (see AVERAGE WEEKLY WAGE). The Board publishes a "weekly benefit table" every year, the wage tables from 2003 to the present are available on the Board's web site at http://www.maine.gov/wcb/departments/publications.htm, and the table for the year the injury occurred is to be used. Benefits for total compensation continue to be unlimited in duration provided the employee remains qualified for benefits under §212 of the statute.

D. Presumed Total Incapacity

Total incapacity is presumed for 800 weeks in cases of incurable imbecility or actual loss of any combination of two eyes, hands, feet, arms or legs (under prior law, these types of injuries resulted in presumed lifetime total incapacity). Permanent and complete paralysis of both legs or both arms or one leg and one arm will also provide the protection of this section. After the 800 weeks, the employee is entitled to total compensation only if there is actual total incapacity. Under prior law, such conditions resulted in presumed lifetime incapacity (39-A M.R.S.A. §212(2)).

E. Specific Loss Benefits

In cases when there is an actual loss of body parts, total incapacity is considered to continue for a period specified in the schedule. These durations run from 16 weeks for loss of a little finger to 269 weeks for loss of an arm. This provision applies only to "actual" loss (i.e., amputation) rather than "functional" loss of use. The statute is silent about whether additional total compensation is available after the scheduled weeks expire but it has been established that if the Employee continues to be either partially or totally disabled beyond the specific loss time periods they could qualify for benefits under §212 or §213

The Law Court has held that an employee is not entitled to both specific loss benefits and incapacity benefits since both are reflective of the inability to earn. An employer can therefore offset the award of specific loss benefits by the amount of incapacity benefits already paid to the employee. If the Employee loses less time than is set forth under the relevant specific loss provision, he may be entitled to receive those additional weekly benefits. Should he suffer incapacity in the future, an offset should be applied against those specific loss benefits previously paid.