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Maine Court Holds That Firing an Injured Worker For Inability to Work is Not Equivalent to Retaliatory Discharge.  Lavoie v. Re-Harvest, Inc., 2009 ME 50; 2009 Me. LEXIS 48 (May 12, 2009).  An employer terminated an employer as soon as it became clear that, because of his work-related injury, he could not perform any work. A hearing officer (HO) for the Maine Workers' Compensation Board granted the employee's claim for discrimination under Me. Rev. Stat. Ann. tit. 39-A, §  353 (2008) of the Maine Workers' Compensation Act. The employer's petition for appellate review was granted.  The employee was unable to work at his old job after his injury. The employer designed a light duty job for him, but he was not able to perform it. Less than four weeks after the injury, the employer terminated his employment. Despite finding that the termination occurred because the employee could not work, the HO found discrimination because 1) the employer had no written policy regarding the termination of injured workers (although no provision of the Act or Board rule required such a written policy), and 2) at the time of the termination, it was not yet known how long it would take the employee to be able to return to at least light duty employment. The high court held that the decision to terminate an employee was not discrimination prohibited by §  353 where it was based on the employee's physical inability to return to work. Neither the Act nor the Board's rules established any time period during which an employer was required to maintain a totally incapacitated worker's employment status. As the employer complied in full with the Act and paid benefits to the employee on a timely basis, terminating him due to his complete inability to work did not violate §  353.  The decision of the Board's HO was vacated.  See generally Larson’s Workers’ Compensation Law § 104.07.

Remand Required Where Record Was Unclear as to Date Injury Manifested Itself and Whether, Therefore, Claimant Gave Adequate Notice.  Jensen v. S.D. Warren Co., 2009 ME 35; 2009 Me. LEXIS 37 (April 7, 2009).  An employer appealed the decision of a Maine Workers' Compensation Board hearing officer, which awarded an employee a closed-end period of partial incapacity benefits and ongoing total incapacity benefits for a 2004 gradual injury.  On appeal, the employer raised several issues. The appellate court found that it was unclear whether the date the injury manifested itself actually coincided with the employee's last day of work, which determined whether the employee gave adequate notice of the gradual injury pursuant to Me. Rev. Stat. Ann. tit. 39-A, §§ 301, 302 (2008) and whether the employee timely filed his petition pursuant to Me. Rev. Stat. Ann. tit. 39-A, § 306 (2008). Also, the hearing officer erred in foreclosing inquiry into attorney-client communications disclosed by the employee regarding his recognition that he suffered a work-related injury because the employee disclosed the most significant part of the attorney-client communication as the basis for his claim. Pursuant to Me. R. Evid. 510, when published by the employee, his attorney-client communication was no longer confidential, and the Me. R. Evid. 502 attorney-client privilege was waived. Finally, the hearing officer erred in awarding ongoing "total" incapacity benefits pursuant to Me. Rev. Stat. Ann. tit. 39-A, § 213 (2008) because his findings were internally inconsistent and inadequate to support an award of 100% partial or total benefits. The decision of the hearing officer was vacated and the case was remanded for reconsideration of the date of injury. The hearing officer was to determine the date of injury, i.e., the date on which the injury manifested itself, and then examine whether the statutory notice and limitations periods commenced on that date or whether they commenced at a later date based on a mistake of fact.  See generally Larson’s Workers’ Compensation Law § 126.01.

Workers’ Comp Fund Must Release Sensitive Information to Former Members.  Maine Health Care Assoc. Workers’ Comp. Fund v. Superintendent of Ins., 2009 ME 5, 2009 Me. LEXIS 4 (January 13, 2009). The Maine Health Care Association Workers' Compensation Fund (Fund) is a tax-paying trust established for the purpose of administering a workers' compensation group self-insurance program for certain long-term care facilities and nursing homes in accordance with the Workers' Compensation Act of 1992, 39-A M.R.S. §§ 101-409 (2006). Three former members terminated their participation in the Fund effective January 1, 2007. By both statute and administrative rule, each terminated member of was required to provide the group with capital necessary to fund that member's proportionate share of the group's exposure to the ninety-five per-cent confidence level. 39-A M.R.S. § 403(3)(C)(2) (2008); 6 C.M.R. 02 031 250-33 § III(E)(4) (1997).  Accordingly, the Fund made an actuarial determination of its workers' compensation liabilities and levied proportionate supplemental assessments against the three former members in November of 2006. Each former member was provided with a one-page actuarial table supporting the assessment. The Bureau approved the Fund's security calculation.

The former members challenged the order, contending that the Fund had not followed appropriate methodologies in calculating the supplemental assessments. The former members requested documentation from the Fund that would allow them to "verify the methodology followed and ascertain the appropriateness of the supplemental funding requested." This requested documentation included, among other things, financial records of other, current Fund members, all of which had been supplied to the Superintendent as part of the approval process.

The Fund objected, arguing that the documents were designated as confidential by section 403(15), that the information was protected as business or proprietary trade secrets, and that the former members had already received ample documentation allowing them to evaluate the accuracy of the assessments. A hearing officer issued an order compelling discovery of the requested documents under a protective order, concluding that section 403(15) did not prohibit disclosure. The order conditioned disclosure of "competitively sensitive" information to an "eyes of counsel and expert consultant only" basis.

The Fund filed a complaint with the Superior Court, appealing the hearing officer's discovery decision and seeking declaratory and injunctive relief. The Superior Court affirmed the hearing officer's order in all respects.  The Fund again appealed.  The state high court observed that the order accomplished three critical results.

• It prevented public disclosure of the records, thus effectuating the Legislature's directive that they are not public records.
• It limited access to the records to counsel and experts, thereby minimizing the disclosure of information among market competitors.
• It leaves open the opportunity on the part of the Fund to identify going forward information that is "competitively sensitive between present or former members of the Fund."

The court concluded that nothing in the hearing officer’s order violated the terms or the spirit of section 403(15).  See generally Larson’s Workers’ Compensation Law § 150.01.

Employer Not Responsible for 100% Partial Benefits Where Claimant Only Pursued Part-Time Jobs So As to Maintain Student Status.  Tucker v. Associated Grocers of Me., 2008 ME 167; 2008 Me. LEXIS 171 (November 6, 2008).  An employer appealed a decision of a Maine Workers' Compensation Board hearing officer (HO), which granted an employee's petition for review, and awarded the employee 100 percent partial benefits and ongoing partial benefits based on part-time earning capacity.  The state's highest court held that the HO properly held that the employee's economic circumstances had changed due to his job loss and the unanticipated, year-long period of unemployment that followed. The employee conceded that after he went back to school and he lost his job, he searched only for part-time work so that he could complete his course of study and improve his employment prospects. The employee acknowledged that he had the physical capacity to earn full-time wages. While efforts to improve employment prospects were among the factors that were relevant to whether the employee had demonstrated a good faith work search, 100 percent partial benefits, or partial benefits based on part-time earning capacity, were not authorized when an employee with full-time work capacity searched for only part-time work so that he could maintain a full-time school schedule. The employer was responsible only for loss of earning capacity related to the work injury, and was not required to pay 100 percent partial benefits or ongoing partial benefits based on a part-time earning capacity to the employee under under Me. Rev. Stat. Ann. tit. 39, §§ 213(1), 214(1)(B) (2007).  The hearing officer's decision was vacated. The case was remanded for recalculation of benefits imputing a full-time earning capacity to the employee.  See generally Larson’s Workers’ Compensation Law § 84.02.

Professional Baseball Player, Resident of Maine and Hurt in Tennessee, Allowed to File Comp Claim in Home State .  Cavers v. Houston McLane Co., 2008 ME 164; 2008 Me. LEXIS 166 (October 30, 2008).  The baseball player petitioned the Maine Workers' Compensation Board for workers' compensation benefits and the payment of medical and related services. The baseball team moved to dismiss the claim. A hearing officer found that the Board had subject matter jurisdiction over the claim and personal jurisdiction over the baseball team. The officer awarded the player the payment of medical bills. The baseball team petitioned for appellate review.  The baseball player was a resident of Maine who signed a minor league baseball contract with the out-of-state baseball team. While playing in a game in Tennessee , the player injured his shoulder. A doctor in Massachusetts performed arthroscopic surgery on the player. The baseball team contended that the exercise of personal jurisdiction in the case under Maine 's long-arm statute, Me. Rev. Stat. Ann. tit. 14, § 704-A (2007), violated due process because the only contact the team had with Maine was a visit by its director of scouting to negotiate and sign the player's contract. On appeal, the court noted that the baseball team did not argue that the player was not a resident of Maine . The court found that the baseball team had sufficient contacts with Maine to have reasonably anticipated a court or administrative action in Maine arising from the player's employment contract negotiated and signed in Maine . Moreover, the fair play and substantial justice element of the balancing test favored the acceptance of jurisdiction by the Workers' Compensation Board as consistent with the constitutional requirements of due process under Me. Const. art. I, § 6-A and U.S. Const. amend. XIV, § 1.  The decision was affirmed.  See generally Larson’s Workers’ Compensation Law § 140.02, 143.06.

AME Guides Allow Some Discretion in Use of " Range of Motion " Versus "Diagnostic Related Estimate" Models.  Sprague v. Lucas Tree Experts, 2008 ME 162; 957 A.2d 969; 2008 Me. LEXIS 168 (October 21, 2008).  An employee sought workers' compensation benefits arising from an injury suffered while working for his employer. The Workers' Compensation Board ( Maine ) determined that the employee suffered from 12 percent permanent impairment as a result of the work injury.  An independent medical examiner (IME) used the range of motion (ROM) model of the American Medical Association, Guides to the Evaluation of Permanent Impairment (Guides) to determine that the employee suffered 12 percent impairment. A second physician used the diagnostic related estimate (DRE) model and concluded that the employee suffered 10 percent impairment. The hearing officer held that the employee suffered 12 percent impairment. The employer argued that, because the Guides mandated use of the DRE method for spinal injuries, the hearing officer was required to reject the IME opinion based on the ROM method. The appellate court found that the Guides gave the evaluator discretion to use the ROM model to assess permanent spinal impairment when the injury did not fit within the categories of the DRE model. This approach violated neither the letter nor the spirit of the Guides. Me. Rev. Stat. Ann. tit. 39-A, § 213(1) and the board's rules did not compel a different result. The hearing officer committed no legal error in adopting the IME's opinion, and the other medical evidence was not so clear and convincing as to require a rejection of the IME's opinion.  The decision was affirmed.  See generally Larson’s Workers’ Compensation Law § 80.02.

Court Allows Specific Designation of Percentage Disability to Claimant's Depression.  Harvey v. H.C. Price Co., 2008 ME 161; 957 A.2d 960; 2008 Me. LEXIS 167 (October 21, 2008). The employee suffered an injury at work to her right leg. She lost a substantial amount of skin, and her treatment included a skin graft. She suffered chronic pain from the injury and was out of work. A psychiatrist diagnosed the patient as suffering from a major depressive disorder. An independent medical examiner, appointed under Me. Rev. Stat. Ann. tit. 39-A, § 312 (2007), diagnosed the employee as having a major depressive disorder related to the work injury, and determined that she suffered a seven percent permanent impairment as a result. The employer argued that it was error to assign a percentage of impairment to the psychological component of the injury. On appeal, the court found that the Board did not err in determining the employee's impairment under Me. Rev. Stat. Ann. tit. 39-A, § 213 (2007) by giving a numerical percentage rating to permanent impairment associated with the psychological component of the work injury, despite the fact that the American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed. 1993), did not assign numerical impairment percentages to non-neurological psychological conditions, as it did for other types of impairment.  See generally Larson’s Workers’ Compensation Law § 56.03.