In nearly all circumstances, the law in effect on the date of injury controls the calculation of total and partial compensation.
A. Injuries Before 11/20/87
The employee is entitled to two-thirds of the difference between his AWW and what he is "able to earn after the injury" in partial compensation benefits. If the employee has not recovered any capacity for work, he may be entitled to benefits under the total section, 39 M.R.S.A. §54. If the employee can establish that he has performed a good faith work search and can demonstrate that the continuing effects of his injury prevent him from returning to work in the current labor market, he may be entitled to benefits for total incapacity (see WORK SEARCH). For nearly all dates of injury before November 20, 1987, there is no durational limitation on the employee's entitlement to benefits.
B. Injuries From 11/20/87 to 10/16/91
Once an employee has received 400 weeks of benefits for partial incapacity after the date of maximum medical improvement (MMI), he is no longer entitled to further benefits for partial incapacity. In order to terminate benefits, the employer must file a petition (see REDUCING OR TERMINATING BENEFITS). An employee who has recovered a full-time work capacity and who receives "total" by virtue of a good faith work search is actually receiving benefits for "100% partial" incapacity under section 55-B, not for total incapacity under section 54-B, and therefore is subject to the 400-week limitation (39 M.R.S.A. §55-B).
C. Injuries From 10/17/91 to 12/31/92
The 400-week cap was changed to a cap of 520 weeks of payment of compensation. A claimant is no longer entitled to partial compensation after receiving 520 weeks of either partial or total compensation, regardless of the date of MMI, provided the employer is paying compensation for partial incapacity at the expiration of the ten-year limitation period. The 520- week limitation specifically refers to benefit weeks paid and is not connected to MMI. An employee who has recovered a full-time work capacity and who receives "total" by virtue of a good faith work search is actually receiving benefits for "100% partial" incapacity under section 55-B, not for total incapacity under section 54-B, and therefore is subject to the 520-week limitation (39 M.R.S.A. §55-B). The work search rules were also revised (see Chapter 21 WORK SEARCH). See Chapter 31 REDUCING OR TERMINATING BENEFITS for procedures to be used in terminating benefits where the durational cap has expired.
D. Injuries on and After 01/01/93
The 1992 Act changed the durational cap once again. It also added new standards for job offers and return to work (see RETURN TO WORK). Under the 1992 Act, an employee is "partially" incapacitated if he has some ability to undertake work in the competitive labor market even if he fails to find work after a "good faith work search," (see WORK SEARCH). There exist several other situations in which the employee is owed partial benefits:
(a) If an employee is employed but earning less than the pre-injury, after-tax average weekly wage, the employer must pay 80% of the difference; or
(b) In certain circumstances, if the employee loses a post-injury job, but nonetheless retains some work capacity, the employer may be responsible for partial incapacity benefits.
The durational cap is now based on the employee's "whole body" permanent impairment. If permanent impairment exceeds a minimum percentage level, there is no cap on the duration of partial benefits. If permanent impairment does not exceed the threshold level, the employee is no longer entitled to partial compensation after receiving 260 weeks of benefits (presently adjusted to 364 weeks of benefits effective 1/1/00) for partial or total. The Board has authority, on application, to extend (without limitation) the 260/364 weeks for "extreme financial hardship."
The PI threshold must be adjusted by the Board annually to ensure that the proportion of cases over the threshold remain at 25%. The permanent impairment threshold was adjusted from 15% to 11.8% for dates of injury prior to January 1, 2002. The threshold was adjusted to 13.2% for dates of injury on or after January 1, 2002 and further adjustments in the PI threshold are expected which will apply to dates of injury after the effective date of the adjustment.
For dates of injury between January 1, 1993 and December 31, 1997, employers will be required to pay partial incapacity benefits beyond 260 weeks, even if the permanent impairment falls between 11.8% and 15%. Those employers may be eligible to receive reimbursement from the Supplemental Benefits Fund for all benefits paid beyond 260 weeks.
In addition to the changes in the durational limitation that hinge on the amount of PI an employee has sustained, there is another section of the Act providing for the extension of the number of weeks of partial that an employee can receive. Starting in 1998, the Board was required to determine whether the frequency of lost time cases in Maine is less than the national average; if so, the 260- week limitation must be extended by 52 weeks. The Board did not make such an extension in 1998, but did so in 1999 and 2000. Further extensions of the partial incapacity cap have not been enacted but are likely to occur. If the employee's entitlement to benefits had not expired by the effective date of an extension, that employee gains the benefit of the extension. For dates of injury after 01/01/93, the limitation applies to cases where an employee with full-time work capacity receives benefits for 100% partial incapacity, by virtue of a good faith work search. See REDUCING OR TERMINATING BENEFITS for procedures to be used in terminating benefits where the durational cap has expired.
E. Fixed Partial Compensation
Fixed partial is an estimate of average lost earning capacity or a reflection of actual incapacity, based upon post-injury earnings. Seventy-five percent fixed partial, for example, means that the employee has lost 75% of his pre-injury earning capacity and is entitled to a compensation rate of 75% of total. Fixed partial is usually the preferred method from the employer's standpoint because it does not require calculation of the benefit amount each week.
F. Varying Rates Partial Compensation
Varying rates partial is based on the difference between the AWW and actual earnings when earnings vary from week to week. Employees receive two-thirds of that difference for injuries before 01/01/93. The benefit for injuries after 01/01/93 is 80% of the difference between after-tax post-injury earnings (including the value of fringe benefits, if any, to the extent they are included in the pre-injury AWW) and the after-tax pre-injury AWW. Varying rates partial is usually most attractive short term to an employer only when wages are expected to increase, and most attractive to an employee when wages may decrease or even end, but see RETURN TO WORK. If an employee is receiving varying rates partial, the reason that the employee is out of work is irrelevant. This factor makes any long term varying rates compensation arrangement undesirable for employers.
