2000 COMP Index - Law Firm Robinson, Kriger & McCallum Attorneys Portland, Maine

14th Annual Index

Supplemental Index

to the 1994 Cumulative Index

Indexing and Summarizing:
All Maine Law Court Workers' Compensation Cases

(November 1999 - October 2000)

Selected Decisions of the Maine Federal Court, Superior Court,

and Workers' Compensation Board

(November 1999 - October 2000)

COMP^TM The Maine Workers' Compensation Journal is written by attorneys at Robinson, Kriger & McCallum for the benefit of its clients and subscribers throughout the workers' compensation community in Maine.

PUBLISHER Robinson, Kriger & McCallum, P.A.

EDITOR John M. McCallum, Esq.

ASSOCIATE EDITORS Lawrence Goodglass, Esq.

Thomas Kelly, Esq.

WRITER/INDEXER Jill Cournoyer

PRODUCTION COORDINATOR Dana Reynolds

COMP^TM The Maine Workers' Compensation Journal (ISSN#1041-8180) is published six times annually. Subscriptions: $175 per year; $28 per add-on subscription mailed to the same name and address. Business and editorial correspondence should be addressed to: COMP, Box 4793, Portland, ME 04112. Telephone: (207) 772-6565. Fax (207) 773-5001. Copyright 1998 by Robinson, Kriger & McCallum, P.A. No part of this publication may be reproduced in whole or in part without the Publisher's written consent. While every effort has been made to be accurate, readers should not substitute COMP for the advice of an attorney in specific cases.

COMP's
Annual Supplemental Index

Is Now Available -
Included with this issue

Medical Fee Rule Proposed

The Workers' Compensation Board has proposed several amendments to the current medical fee schedule (Board Rule Ch. 5). A public hearing on the proposal was held on December 16th.

First, insurers would have to pay for the purchase or rental of all durable medical equipment and all devices approved by the attending physician, at 120% of the provider's cost. Invoices from providers would be required for any item costing more than $25.00.

Secondly, reimbursement for services for hospitalized workers would be paid at 90% of the charge.

Finally, permanent impairment examinations would have a maximum charge of $450.00. All PI assessments would be governed by the 4th edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment."

Updated Forms Now Required

The Board has updated several workers' compensation forms: WCB-1 (First Report of Injury, ) WCB-2 (Notice of Controversy), and WCB-9 (Memorandum of Payment). The new forms must be used beginning January 1, 1999.

Maine is the first state in the nation to produce a First Report of Injury form that meets Occupational Safety and Health Administration standards. The report, revised with the assistance of the Department of Labor, now asks such questions as what equipment, materials, or chemicals the employee was using at the time of injury.

Late Filing Penalty

The Board has notified carriers by mail that a $100.00 penalty will be assessed for every First Report of Injury filed late. Employers must file the report within seven days of having notice or knowledge of one or more days lost work time due to injury.

The following items were taken from minutes of the Workers' Compensation Board meetings for the last several months.

Worker Advocates

Gov. King denied the Board's request to hire five short-term worker advocates to add to the current staff of 11 advocates. The Board did hire two paralegals to assist worker advocates in Portland and Lewiston. Of the approximately 1,400 open files in the advocate program, 65% of them are in the Portland and Lewiston offices.

Lack of Coverage

In September, the Board increased Abuse Unit lack-of-coverage hearings to four per month. On 11/3/98, the Board mailed a letter to 182 underwriting departments, advising them that their insureds might be notified that they lack coverage under the Act. The letter also recommended how to correct the problem. The staff's goal has been to reduce the number of lack-of-coverage notice letters to employers from three to one, before turning the cases over to the Abuse Unit. As a result, the number of cases referred to the AU has increased.

Legislative Proposals

In the upcoming legislative session, the Board will propose bills on the following topics:

Statute of Limitations: Petitions would still have to be filed within two years of the date of injury or date of a first report, or six years from the date of a payment made under the Act. If an injury were established without payments, the employee would have six years to file a petition. In case of death, the employee's decedents would have one year to file.

Audit Papers: All information acquired or prepared by the Board as part of an audit or investigation would be confidential.

Dependents: An employee's dependents living outside of the United States or Canada would be provided the same amount of benefits as other dependents (current law provides them one-half).

Wage Statements: It would be clarified that employers must file wage statements within 30 days of the date they have notice or knowledge of a compensation claim under sections 212 or 213 (partial benefits).

Apportionment: Board hearing officers would have jurisdiction to determine apportionment issues, a matter now addressed by the Bureau of Insurance through arbitration.

Extended Benefits: This rule would detail the criteria and procedures for extending benefits. Employees would have the burden of proof. No specific extension limits were proposed.

Personnel

WC Board Executive Director Paul Dionne was elected to the 10-member executive board of the International Association of Industrial Accident Boards and Commissions. Isabella Tighe, the Board's deputy director of medical/rehabilitation services, was chosen chair of the IAIABC's Occupational Health and Disability Committee. The IAIABC will hold its year 2000 conference in Portland.

Law Court

Wasowski v. Maine Medical Center
1998 ME 229 10/21/98
CLIFFORD

In investigation of delayed payments, WCB Abuse Unit violated principles of due process where it treated employer's letter as position paper, even though it was not identified as such and time for responsive pleading had not passed.

The Court rules that the Workers' Compensation Board failed to follow its own procedures for investigating a claim of delayed benefit payments.

Following a 1996 injury, the employee reached an agreement at mediation with her employer, Maine Medical Center. When MMC delayed payments, the supervisor of the Payments Division of the Workers' Compensation Board filed a petition for forfeiture and penalties, on the employee's behalf, pursuant to §324 (failure to timely pay benefits). The Abuse Unit set deadlines for position papers from the parties.

The employee filed her`position paper, without counsel, but she failed to send a copy to the employer. Meanwhile, in follow-up to a telephone call, MMC had sent the supervisor a letter explaining the reasons for its actions. The Abuse Unit considered MMC's letter to be its position paper in response to the employee's letter, although the deadline for the employer's position paper had not passed. It then found that MMC's reasons for delay -- miscommunications and technical difficulties -- were not due to "circumstances beyond [its] control." The Board ordered the employer to pay $2,950.00 in penalties. The employer appealed to the Law Court.

Justice Clifford held that the Abuse Unit's decision to treat the employer's letter as a position paper violated the WC Board's own procedural rules. Board rule Ch.15 §6.2.C states that in investigating petitions for forfeiture, the Abuse Unit requires all parties to submit written evidence, including position papers. The AU schedules the deadlines for receipt of the written testimony; no hearings are held. In this case, the Board had made a "rush to judgment" and erred in treating MMC's letter as a position paper. First, the employer's deadline for submission of its position paper had not passed. Secondly, MMC's letter was not addressed to the Board and was not identified as a position paper. Instead, it indicated that it was merely a follow-up to a telephone call with the supervisor of the Payments Division. Indeed, MMC had other arguments that it wished to put forth to the Board.

Justice Clifford thus vacated the Board's decision and remanded the case to allow MMC the opportunity to file a position paper, to show the type of "extraordinary circumstance"that justifies a delay in payments.

Reaser v. SAD #71
1998 ME 151
11/20/98 mem dec

Court summarily affirms decision of Kennebec County Superior Court, granting School District a declaratory judgment that the plaintiff was an employee and not an independent contractor of the district. The district exercised essential control and supervision over her work as a varsity cross-country coach. Thus, plaintiff's suit against the district for injuries received during track practice was barred by the exclusivity provisions of the Act. See Reaser v. SAD #71 (COMP Vol. 14, No. 3 ).

Tracy v. Hershey Creamery Co.
1998 ME 247 11/23/98
RUDMAN

Court affirms Board's holding that employee not entitled to specific loss benefits for eye injury where corrective surgery restored his vision to a less than 80% loss.

The Court looks at the specific loss benefits provision, §212, which allows employees a scheduled number of weeks of benefit payments for the actual loss of specific body parts.

Immediately following a work-related eye injury, the employee lost 95% of his vision in that eye. He had three subsequent surgeries, which involved removal of his natural lens, implantation of an artificial lens, and laser surgery. As a result, within six months of the injury his vision had improved to a 60-70% loss, without the use of glasses or contact lenses. He then filed a petition for specific loss benefits under §212(3)(M). Under §212, an employee with at least an 80% loss of vision is entitled to 162 weeks of specific loss benefits.

The Workers' Compensation Board acknowledged that before his surgeries the employee had a 95% vision loss. However, it found that §212(3)(M) required a determination of impairment following maximum medical improvement, thus it denied the petition. On the employee's appeal, the Law Court affirmed.

Justice Rudman first noted that Maine has always provided some type of specific loss benefits since the Workers' Compensation Act was enacted in 1915. In 1965, the Legislature first allowed scheduled loss benefits in addition to incapacity benefits, to compensate for the functional loss of a body part. The revised 1992 Act abolished these permanent impairment benefits for loss of bodily function, and the Act now compensates only for loss of earning capacity related to impairments. However, the specific loss provisions of §r12 address the "human factors" beyond wage loss that are attendant to catastrophic injuries resulting in the loss of a body part (see §212(1)). Under §212, the loss of 80% of the vision of an eye is held equal to loss of the eye.

At issue here was whether the employee's temporary 95% vision loss prior to his corrective surgeries invoked his employer's liability to pay specific loss benefits. Under the former Act, when permanent impairment benefits were paid for specific losses, vision loss was determined at the point of maximum medical improvement the date after which no further recovery could reasonably be anticipated. The new Act does not refer to maximum medical improvement, but it still makes reference to "total and permanent loss" and "actual loss." Justice Rudman thus held that an employee's vision loss for purposes of §212 should be determined when he has "reached a reasonable medical endpoint." In this case, within six months of his injury the employee's vision had been restored to a less than 80% loss; thus the Court affirmed that his loss did not fall within §212.

The employee argued that Title 39-A has a different standard than the previous statute, which measured the employee's impaired vision "with glasses." He stated that his implanted lens is analogous to a pair of glasses, and without it his vision loss would approximate 95%. The Court disagreed that a surgically implanted lens is comparable to glasses, as "glasses" have been understood to mean externally applied lenses since the term was first included in the Act in 1919. And with or without glasses, the employee's vision had been restored so that it did not involve the 80% loss required by §212.

Justice Rudman added that it would be contrary to legislative intent to allow specific loss benefits for the loss of an eye where the employee's vision was substantially restored. He found that the employee's temporary loss of vision was not comparable to amputation of a body part. Other employees, he concluded, also suffer extreme and traumatic injuries that do not warrant specific loss benefits because they do not include the loss of a body part.

Maine AFL-CIO v. Supt. of Insurance
1998 ME 257 12/04/98
DANA

AFL-CIO's case challenging rule on workers' compensation pilot projects was properly dismissed by Superior Court for lack of ripeness, as no projects have yet been proposed.

This case addresses §403 of Title 39-A, which allows employers to replace compensation insurance with a "health benefits pilot project" that would cover both work and non-work injuries. The Superintendent of Insurance may approve such plans only if they "confer benefits . . . to an employee that are equal to or greater than the benefits available" under the Act. The AFL-CIO argued that pilot projects cannot be approved if they reduce indemnity benefits. The Superintendent proposed rules permitting pilot projects if the "overall level of benefits" was greater or equal to benefits under the Act.

At a rulemaking hearing, the Superintendent of Insurance rejected the AFL-CIO's position. The Bureau subsequently approved a rule pertaining to §403, which stated that pilot projects could be approved if they did not reduce the "overall level of benefits" required by the Act. The AFL-CIO appealed the promulgation of the rule (Ch. 690) on the basis that it contradicted §403.

The Superior Court dismissed the case for lack of ripeness because no pilot project had yet been proposed. The Law Court affirmed. It first dismissed the AFL-CIO's argument that the Maine Administrative Procedure Act requires mandatory review of all appeals of agency rules. Justice Dana explained that the doctrine of ripeness precludes courts from "entangling themselves in abstract disagreements over administrative policies. . ." It also protects agencies from court action until their rules have had a concrete effect on a party. Justice Dana found that as no pilot projects had been proposed, Rule 690 had not affected anyone yet. He thus found that unless it was clear now that every pilot project would contradict §403, the issue was not ripe for adjudication.

Justice Dana also found no hardship faced by employees from the existence of Ch. 690 that warranted court intervention. The AFL-CIO argued that workers were harmed in proposing and challenging pilot projects, because of the wide gap in financial power between workers and management. Justice Dana dismissed this argument as speculative. Similarly, he rejected the AFL-CIO's argument that Ch. 690 potentially violated the Employee Retirement and Income Security Act.

Ed. Note: Interested parties will be forced to challenge individual pilot projects if they wish to challenge the reduction in benefits that purportedly might occur to individual employees.

Superior Court

Veilleux v. Furbush
Kenn.Super. 98-76 08/06/98
MARDEN

Civil suit by employee against coworker for negligence dismissed for lack of jurisdiction, as injury was work-related and exclusive remedy was through workers' compensation benefits

This case addresses the immunity of an employee from civil suit by a coworker for a work-related injury.

In 1994, several Colby College employees were engaged in shoveling and snow removal on the campus. Veilleux, the plaintiff, was one of these employees. He had finished shoveling one area, then he jumped into a coworker's truck to drive to another work area. Furbush, an employee operating a snowplow, hit the truck with the plow while the truck was waiting for Furbush to finish. Veilleux was injured and received partial workers' compensation benefits. He then sued Furbush for negligence. Furbush claimed immunity from suit under the Workers' Compensation Act.

The Act provides immunity from suit for work-related injuries to employers and "all employees" of an employer, including fellow employees. Veilleux argued that at the time of the accident he was on an unpaid break and so the accident did not occur during the course of employment. Noting that there was no evidence of such an "unpaid break," the court disagreed with this argument. Finding that the accident was work-related, the court dismissed the suit for lack of jurisdiction.

Hearing Officers

Smith v. Champion International
WCB 97011309 10/05/98
FLETCHER

Cap on maximum benefits in §211 is to be applied to the employee's benefits after they are calculated without regard to the cap.

This case addresses whether the maximum benefit cap in §211 is to be applied to the calculation of incapacity benefits, or to the weekly benefit amount. Section 211 states that "the maximum weekly benefit payable . . . is the higher of $441 or 90% of the state average weekly wage." The current maximum is $411.

In Smith, the question before the Board was how to calculate the four days of benefits for a highly paid employee. The employer divided the maximum benefit amount of $441 by seven days, which resulted in $63 a day. It then multiplied this amount by four to arrive at a maximum of $252 due the employee. The employee argued that his total benefit amount should be divided by seven, then multiplied by four, yielding $346.24, less than the maximum amount of $441. Hearing Officer Fletcher agreed with the employee, based on a recent Law Court decision, O'Neal v. City of Augusta (706 A.2d 1042, COMP Highlight Issue, Vol. 14, No. 2).

In O'Neal, the Court interpreted the term "weekly benefit amount" in §102(4)(H). The employer there argued that it referred to the compensation rate for total incapacity. However, the Court held that it meant the actual amount of benefits received by the employee after calculating total or partial benefits. Hearing Officer Fletcher followed this reasoning, as he found the terms "weekly benefit amount" from §102(4)(H) and "weekly benefit" from §211 nearly identical in language and in purpose, both intended to set the maximum benefit amount that can be received in any week.

Hearing Officer Fletcher pointed out that following the employer's argument would result in a weekly benefit amount that could never exceed $441. However, the Board's Weekly Benefits Table provides for weekly rates up to $1,200, based upon the employee's gross weekly wages and tax status. He thus held that the cap on maximum benefits is to be applied to the employee's benefits only after they are calculated under the Board's Weekly Benefits Table.

Mayo v. American Business Systems
WCB 94018059 10/20/98
FLETCHER

For purposes of whether the employee's permanent impairment exceeds the threshold amount for unlimited benefits, the PI assessment may be based on impairment from other conditions, not just the work injury at issue.

This case addresses §213, which states that employees with permanent impairment assessments that exceed 11.8% are eligible to receive partial incapacity benefits beyond the 260-week limit. Hearing Officer Fletcher affirmed that employees may "stack" impairments from different injuries or conditions to arrive at the 11.8% threshold.

Following a 1996 work injury, the employee underwent disk surgery. He was then asymptomatic until a second work-related back injury in 1994. Following two more back surgeries in 1995, he filed a petition to determine the extent of his permanent impairment.

In March 1997, the employee's surgeon evaluated him to have a 17% whole person permanent impairment. He based this on 12% from the two 1995 surgeries, 1% due to right leg disturbance, 2% due to right foot weakness, and 2% for back flexibility problems. The surgeon apportioned none of the PI to the 1986 surgery or to degenerative changes. At the employer's request, the employee was then evaluated by a neurology specialist in February 1998. The specialist assessed 25% whole person impairment. On further review at the request of the attorney, he assessed 10% impairment from a spine disorder and 13% from nerve root impairment. He attributed one-half of this impairment to the 1986 surgery and its consequences.

In 1998, the employer requested a §312 independent medical examination to clarify the degree and work-relatedness of the employee's permanent impairment. The examiner assessed a 13% whole person impairment based on the 1994 injury, and a 7% whole person impairment based on the 1986 injury. Finding that the 1994 injury contributed only 30% to the employee's incapacity, the examiner then reduced the 13% impairment to 9%. Hearing Officer Fletcher finally interpreted the examiner's opinion to mean that the combined effects of the two injuries produced a 13% PI, with 9% apportionable to the 1994 injury and 4% apportionable to the 1986 injury.

Hearing Officer Fletcher noted that the definition of permanent impairment does not make it clear whether PI under §213 is to be measured as impairment arising from only the work injury at issue, or from other conditions as well. Noting that impairment includes any anatomic or functional abnormality after the date of maximum medical improvement that results from a work injury, he found that "stacking" of PI benefits from different injuries is allowable where there is a causal connection between the work injury and the prior injuries leading to impairment. He argued that this fulfills the Legislature's intent to continue benefits for impairment that lasts beyond the 260-week limit, similar to the continuation of incapacity benefits even when they are apportioned among several injuries. He found no legislative intent to reduce whole body impairment assessment by the percentage of contribution from other conditions.

Hearing Officer Fletcher's request for full Board review of this issue was denied, by a tie vote. See Highlight Article, this`issue.

Federal Court

Faragher v. City of Boca Raton
__U.S.__ 06/26/98
SOUTER

An employer may be held automatically liable for the discriminatory hostile work environment created by a supervisor who has authority over an employee. To avoid liability, the employer must prove both that (1) it took reasonable measures to prevent and correct the misconduct (such as disseminating an effective anti-discrimination policy) and that (2) the employee unreasonably failed to avoid the harm by using any such remedial opportunities provided by the employer.

The Court addresses the controversial issue of the liability of employers for a discriminatory hostile work environment caused by their supervisory employees.

A former lifeguard sued the City of Boca Raton, Florida and her immediate supervisors for employment discrimination under the federal Civil Rights Act. She alleged that the supervisors had created a "sexually hostile atmosphere" at work by subjecting female lifeguards to uninvited touching, lewd remarks, and sexist comments. The District Court held that the supervisors' actions had created an abusive working environment. The Court held the City liable for the actions of the supervisors.

The Eleventh Circuit Court of Appeals upheld the award against the individual supervisors but reversed the award against the employer/city, rejecting three possible bases for municipal liability. First, it held that the supervisors were not furthering the city's purposes in harassing the plaintiff and were therefore acting outside the scope of their employment. Second, the city did not have actual or constructive knowledge of the harassment. Third, the supervisors did not invoke their authority over plaintiff as part of the harassment.

The U.S. Supreme Court reversed the appeals court. It held that an employer is vicariously liable for the discriminatory acts of a supervisor with immediate (or successively higher) authority over the employee, although the employer may present an affirmative defense justifying the reasonableness of its conduct.

Justice Souter, writing the opinion, established the Court's first specific guidelines in this area. Prior to this case, the only guidance that the Court had provided was its cursory statement that traditional agency principles are relevant, though not determinative, to employer liability in cases of hostile work environments, Meritor Savings Bank, FSB v. Vinson (477 U.S. 57).

Justice Souter reviewed and rejected strict application of common law agency principles as a basis for employer liability in hostile work environment cases. After criticizing the varying results and interpretations of the common law rules, Justice Souter noted that the primary purpose of discrimination law is to change the behavior of employers. Along these lines, the Equal Employment Opportunity Commission has enacted regulations that require employers to establish a complaint procedure for harassment and to inform employees of how to raise and address issues of harassment. Justice Souter held that a standard for employer liability should give credit to employers who make reasonable efforts to fulfill their duties.

The standard set forth by the Court applies specifically to hostile work environment cases. If a supervisor creates a discriminatory hostile work environment which affects the terms and conditions of employment, the employer itself will be liable unless it can prove two things. It must prove (1) that it took reasonable measures to prevent and correct the misconduct (such as disseminating an effective anti-discrimination policy), and (2) that the employee unreasonably failed to avoid the harm, by using any such remedial opportunities provided by the employer or by other means.

The facts of this case illustrate the burden placed upon employers by this rule. In this case, the city had enacted a sexual harassment policy, but the evidence showed that it "entirely failed to disseminate its policy . . .among the beach employees and that its officials made no attempt to keep track`of the conduct of supervisors . . . The record also makes clear that the City's policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints." Given these facts, the Court held that the city's efforts failed as a matter of law to fulfill the burden of proving "reasonable measures to prevent and correct the misconduct."As a result, both the city and the supervisors were found liable.

Benefits (Fringe)

Cap on maximum benefits in §211 is to be applied to the employee's benefits after they are calculated without regard to the cap. Smith v. Champion International WCB 97011309 10/05/98 FLETCHER

Compensation Rate

Cap on maximum benefits in §211 is to be applied to the employee's benefits after they are calculated without regard to the cap. Smith v. Champion International WCB 97011309 10/05/98 FLETCHER

Discrimination

An employer may be held automatically liable for the discriminatory hostile work environment created by a supervisor who has authority over the employee. Employer may avoid liability by proving it took reasonable preventive and corrective measures, which employee unreasonably failed to use. Faragher v. City of Boca Raton __U.S.__

06/26/98 SOUTER

Due Process

Employee

Court affirms Superior Court decision that plaintiff was an employee, not an independent contractor, as school district exercised essential control and supervision over her work as a track coach. Reaser v. SAD#71 1998 ME 151 11/20/98 mem dec

Exclusivity Provision

Suit by employee against coworker for negligence dismissed for lack of jurisdiction, as injury was work-related and thus covered strictly by the Act. Veilleux v. Furbush Kenn.Super. 98-76 08/06/98 MARDEN

Independent Contractor

Insurance

AFL-CIO's case challenging workers' compensation health insurance pilot projects properly dismissed by Superior Court for lack of ripeness, as no projects have yet been proposed. Maine AFL-CIO v. Supt. of Insurance 1198 ME 257 12/04/98 DANA

Jurisdiction

Permanent Impairment

Court affirms Board's holding that employee not entitled to specific loss benefits for eye injury where corrective surgery restored his vision to a less than 80% loss. Tracy v. Hershey Creamery Co. 1998 ME 247

11/23/98 RUDMAN

An employee's vision loss for permanent impairment purposes should be determined when he reaches a reasonable medical endpoint. Tracy v. Hershey Creamery Co. 1998 ME 247 11/23/98 RUDMAN

Under permanent impairment statute for vision loss, an implanted lens is not equivalent to a pair of glasses. Tracy v. Hershey Creamery Co. 1998 ME 247 11/23/98 RUDMAN

Pleadings

Procedure

Sexual Assaults and Harassment

06/26/98 SOUTER