ADJUSTER'S GUIDE
TO
MAINE WORKERS' COMPENSATION LAW
For The Clients Of
ROBINSON
KRIGER &
McCALLUM
207/772-6565
8TH Edition
ADJUSTER'S GUIDE
TO
MAINE WORKERS' COMPENSATION LAW
Written by the
ROBINSON, KRIGER & McCALLUM
WORKERS' COMPENSATION DEPARTMENT:
John M. McCallum
Richard F. van Antwerp
Lawrence B. Goodglass
Thomas Quartararo
Douglas J. Alofs
Darby C. Urey
Richard D. Bayer
Cara A. Lovejoy
COUNSEL TO EMPLOYERS AND INSURERS
STATEWIDE FOR OVER 30 YEARS
September 2006
Eighth Edition, Copyright ©2006
By Robinson, Kriger & McCallum
12 Portland Pier, P O Box 568
Portland ME 04112-0568
Page
FORWARD AND DISCLAIMER 1
INTRODUCTION TO THE EIGHTH EDITION 2
-
PUTTING THE CURRENT LAW IN PERSPECTIVE 2
- Effective Dates Of Law Amendments 2
- A Brief History Of Maine WC Amendments 2
- Effective Date And Retroactivity 4
- Citations In The Guide 6
-
ORGANISATION Of THE WORKERS' COMPENSATION BOARD 6
-
ADJUSTER LICENSING 7
-
COVERED EMPLOYEES 9
- Agricultural Employees 9
- Maritime Employees 10
- Certain Corporate Officers 10
- Household Workers 10
- Independent Contractors 11
- Prisoners 11
- Loggers 12
- Certain Shareholders - Waiver Of Coverage 12
- Maritime And Longshore Workers 13
-
FORMS 13
-
NOTICE 17
-
STATUTES OF LIMITATIONS 18
- Two-Year Statute ofLimitations 18
- Injuries Before 10/17/91-Ten-Year SOL 19
- Injuries on or After 10/17/91-Six-Year SOL 19
- Interplay of Two-Year And Six-Year SOL 19
- Successive Injuries Involving Multiple Carriers 20
- Protective Decrees 20
-
COMPENSABILITY 21
- Arising Out of and in the Course of Employment 21
- Going and Coming Rule 22
- Intentional Injuries and Intoxication 23
- Gradual Injuries 23
- Mental Stress 23
- Pre-Existing Non-Work-Related Conditions 23
- Temporary Aggravation 24
- Subsequent Non-Work Related Injuries or Disease 24
-
DISPUTING CLAIMS: NOTICES OF CONTROVERSY AND THE 14-DAY RULE 24
-
MEMORANDUM OF PAYMENT 26
-
WAITING PERIOD 27
-
AVERAGE WEEKLY WAGE 28
- Pre-Tax Average Weekly Wage 28
- After-Tax Average Weekly Wage 32
-
SETOFFS: WAGES, SOCIAL SECURITY, EMPLOYEE BENEFIT PLANS & UNEMPLOYMENT BENEFITS 32
- Earned Wages 32
- Social Security 32
- Employee Benefit Plans 33
- Exception For Scheduled Benefits 33
- Unemployment Benefits 34
-
RETIREMENT 34
-
MAXIMUM WEEKLY BENEFIT 34
-
DEATH BENEFITS 36
- Injuries Before 01/01/93 36
- Injuries On or After 01/01/93 37
- Compensation Unpaid at Death 37
- Statute of Limitations 37
- Presumption of Incapacity 37
-
INFLATION ADJUSTMENT 38
- Injuries Between 11/20/87 And 12/31/92: Difference Between 100% Total and 100% Partial Benefits: 39
- Varying Rates 40
- Successive Injuries Covered by Different Carriers 40
- Later Injury on or After 11/20/87 through 12/31/92 40
- Later Injury Occurs on 01/01/93 or Afterward 41
-
INTEREST AND PENALTIES 41
- Interest 41
- Penalties 43
-
TOTAL INCAPACITY 44
- Injuries Before 11/20/87 45
- Injuries 11/20/87 to 12/31/92 45
- Injuries On and after 01/01/93 45
- Presumed Total Incapacity 46
- Specific Loss Benefits 46
-
PARTIAL INCAPACITY 47
- Injuries Before 11/20/87 47
- Injuries 11/20/87 to 10/16/91 47
- Injuries 10/17/91 to 12/31/92 48
- Injuries On and after 01/01/93 48
- Fixed Partial Compensation 50
- Varying Rates Partial Compensation 50
-
WORK SEARCH 51
- Injuries Before 01/01/93 51
- Injuries On or After 01/01/93 52
-
PERMANENT IMPAIRMENT 53
- Injuries Before 09/23/71 53
- Injuries 09/23/71 to 10/02/73 54
- Injuries 10/03/73 to 06/29/85 54
- Injuries 06/30/85 to 11/19/87 54
- Injuries 11/20/87 to 10/16/91 54
- Injuries From 10/17/91 to 12/31/92 55
- Injuries On and After 01/01/93 55
-
REHABILITATION 56
- Overview 56
- Wage Credits 56
-
MEDICAL SERVICES & PROVIDERS 57
- Services Covered 57
- Initial Choice of Physician 58
- Employee's Change of Physician 58
- Treatment by Specialist 59
- Medical Records 59
-
MEDICAL FEES 60
- Payment Procedure 60
- Medical Fee Schedule 61
- Medical Fee Schedule--How To Use 61
- Utilization Review 62
-
INDEPENDENT MEDICAL EXAMINATIONS 62
- Section 312 Ime's 62
- Section 207 Examinations 63
-
MAXIMUM MEDICAL IMPROVEMENT 64
-
RETURN TO WORK -- INJURIES BEFORE 01/01/93 65
-
RETURN TO WORK -- INJURIES ON OR AFTER 01/01/93 66
- Benefit Amount 66
- Quitting After Returning to Work 67
- Termination for Fault 67
-
REINSTATEMENT AND REFUSAL OF JOB OFFERS 68
- Reinstatement Rights 68
- Refusal of Job Offer 68
- Resignation From Suitable Post-Injury Employment. 70
-
REDUCING OR TERMINATING BENEFITS 70
- General Principles 70
- Return to Work 71
- Job Offer Refused/Resignation 71
- Imprisonment 71
- Payments Without Prejudice--21-Day Notice 72
- Payments With Prejudice--Petition For Review 73
-
PETITIONS 73
-
DISPUTE RESOLUTION PROCEDURE 75
- Summary 75
- Troubleshooting 76
- Mediation 76
- Arbitration 77
- Apportionment Remedies 78
- Discovery Phase 78
- Evidence 80
- Appeals 80
- Payments Pending Appeal 82
-
SETTLEMENT 82
- Valuation 83
- Settlement Procedure 83
- Apportionment And Settlements 84
- Unilateral Petitions By Employee 85
-
APPORTIONMENT 85
- Procedure 85
- Calculation of Benefits 86
- Litigation Strategy Regarding Apportionment 88
-
ATTORNEY'S FEES 88
- Injuries Before 01/01/84 88
- Injuries From 01/01/84 to 06/29/85 88
- Injuries From 06/30/85 to 12/31/92: "Prevail Rule" 89
- Injuries From 01/01/86 to 10/16/91 89
- Injuries From 10/17/91 to 12/31/92 90
- Injuries On or After 01/01/93 90
-
DISCRIMINATION 90
-
IMMUNITY AND EXCLUSIVITY 92
- Legal Rationale 92
- Obtaining and Losing Immunity 92
- Proof of Immunity 93
- Exceptions to Immunity 94
- Suits by Third Parties for Indemnification 95
- A Cautionary Note 96
-
SUBROGATION AND THE EMPLOYER'S STATUTORY LIEN 96
- Principles and Procedure 96
- Scope of Lien With Respect to Tort Damages 98
- Uninsured Motorist Benefits 98
- Allocation of Lien Among Injuries 98
Index 100
For a consultation with Robinson, Kriger & McCallum, call (207) 772-6565 or contact us online. Maine Pre-Paid Legal Services Members should call us for assistance.