An Act To Amend the Laws Governing Workers' Compensation
Sec. 1. 39-A MRSA §107, 3rd ¶, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
If the employee or the employee's beneficiary recovers damages from a 3rd person, the employee shall repay to the employer, out of the recovery against the 3rd person, the benefits paid by the employer under this Act , less the employer's proportionate share of cost of collection, including reasonable attorney's fees.
Sec. 2. 39-A MRSA §107, last ¶, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
If the employer recovers from a 3rd person damages in excess of the compensation and benefits paid or for which the employer has become liable, then any excess must be paid to the injured employee , less a proportionate share of the expenses and cost of actions or collection, including reasonable attorney's fees. Settlement of any such subrogation claims and the distribution of the proceeds therefrom must have the approval of the court in which the subrogation action is pending or to which it is returnable; or if not in suit, of the board. When the court in which the subrogation action is pending or to which it is returnable is in vacation, the judge of the court, or, if the action is pending in or returnable to the Superior Court, any Justice of the Superior Court has the power to approve the settlement of the action and the distribution of the proceeds therefrom. The beneficiary is entitled to reasonable notice and the opportunity to be present in person or by counsel at the approval proceeding.
Sec. 3. 39-A MRSA §151, sub-§1, as amended by PL 2009, c. 640, §1, is further amended to read:
The board consists of 3 representatives of management, 3 representatives of labor and the executive director appointed pursuant to subsection 1-A. All management representatives must be appointed from a list provided by the Maine Chamber of Commerce and Industry or other bona fide organization or association of employers. All labor representatives must be from a list provided by the Executive Board of the Maine AFL-CIO or other bona fide labor organization or association of employees representing at least 10% of the Maine work force. The Governor shall appoint one labor representative from a list provided by the executive board of the Maine AFL-CIO or other bona fide labor organization or association of employees. The remaining 2 representatives of labor are appointed at the discretion of the Governor. Any list submitted to the Governor must have at least 4 times the number of names as there are vacancies for the group represented by the vacancies.
A member of the board is not liable in a civil action for any act performed in good faith in the execution of duties as a board member.
A member of the board may not be a lobbyist required to be registered with the Commission on Governmental Ethics and Election Practices, a service provider to the workers' compensation system or a representative of a service provider to the workers' compensation system. In addition to the conflict of interest provisions in section 152, subsection 8, a member of the board may not take part in reaching a decision or recommendation in any matter that directly affects an insurer, self-insurer, group self-insurer or labor organization that the member represents.
Members of the board representing management and labor hold office for staggered terms of 4 years, commencing and expiring on February 1st, except for initial appointees and members appointed to fill unexpired terms.
Sec. 4. 39-A MRSA §153, sub-§2, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is repealed.
Sec. 5. 39-A MRSA §153, sub-§6, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Sec. 6. 39-A MRSA §153, sub-§8, ¶B, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Sec. 7. 39-A MRSA §153, sub-§9, as amended by PL 2005, c. 603, §3, is further amended to read:
Sec. 8. 39-A MRSA §153-A, sub-§2, as enacted by PL 1997, c. 486, §4, is amended to read:
Sec. 9. 39-A MRSA §201, sub-§5, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Sec. 10. 39-A MRSA §205, sub-§9, ¶B, as amended by PL 2009, c. 280, §1 and affected by §2, is further amended to read:
(1) If no order or award of compensation or compensation scheme has been entered, the employer, insurer or group self-insurer may discontinue or reduce benefits by sending a certificate by certified mail to the employee and to the board, together with any information on which the employer, insurer or group self-insurer relied to support the discontinuance or reduction. The employer may discontinue or reduce benefits no earlier than 21 days from the date the certificate was mailed to the employee, except that benefits paid pursuant to section 212, subsection 1 or section 213, subsection 1 may be discontinued or reduced based on the amount of actual documented earnings paid to the employee during the 21-day period if the employer files with the board the documentation or evidence that substantiates the earnings and the employer only reduces or discontinues benefits for any week for which it possesses evidence of such earning. The certificate must advise the employee of the date when the employee's benefits will be discontinued or reduced, as well as other information as prescribed by the board, including the employee's appeal rights.
(2) If an order or award of compensation or compensation scheme has been entered, the employer, insurer or group self-insurer shall petition the board for an order to reduce or discontinue benefits and may not reduce or discontinue benefits until the matter has been finally resolved through the dispute resolution procedures of this Act, any appeal proceedings have been completed and an order of reduction or discontinuance has been entered by the board by a decree issued by a hearing officer. The employer, insurer or group self-insurer may reduce or discontinue benefits pursuant to such a decree pending an appeal from that decree. Upon the filing of a petition, the employer may discontinue or reduce the weekly benefits being paid pursuant to section 212, subsection 1 or section 213, subsection 1 based on the amount of actual documented earnings paid to the employee after filing the petition. The employer shall file with the board the documentation or evidence that substantiates the earnings and the employer may discontinue or reduce weekly benefits only for weeks for which the employer possesses evidence of such earnings.
Sec. 11. 39-A MRSA §207, first ¶, as amended by PL 2001, c. 278, §1, is further amended to read:
An employee being treated by a health care provider of the employee's own choice shall, after an injury and at all reasonable times during the continuance of disability if so requested by the employer, submit to an examination by a physician, surgeon or chiropractor authorized to practice as such under the laws of this State, to be selected and paid by the employer. The physician, surgeon or chiropractor must have an active practice of treating patients. For purposes of this section, "active practice" may be demonstrated by having active clinical privileges at a hospital. A physician or surgeon must be certified in the field of practice that treats the type of injury complained of by the employee. Certification must be by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association or their successor organizations. A chiropractor licensed by the Board of Chiropractic Licensure , who has an active practice of treating patients may provide a 2nd opinion when the initial opinion was given by a chiropractor. Once an employer selects a health care provider to examine an employee, the employer may not request that the employee be examined by more than one other health care provider, other than an independent medical examiner appointed pursuant to section 312, without prior approval from the employee or a hearing officer. This provision does not limit an employer's right to request that the employee be examined by a specialist upon referral by the health care provider. Once the employee is examined by the specialist, the employer may not request that the employee be examined by a different specialist in the same specialty, other than an independent medical examiner appointed pursuant to section 312, without prior approval from the employee or the board. The employee has the right to have a physician, surgeon or chiropractor of the employee's own selection present at such an examination, whose costs are paid by the employer employee. The employer shall give the employee notice of this right at the time the employer requests an examination.
Sec. 12. 39-A MRSA §209, sub-§1, ¶A, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Sec. 13. 39-A MRSA §209, sub-§2, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Sec. 14. 39-A MRSA §209, sub-§3, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Sec. 15. 39-A MRSA §213, sub-§1, as amended by PL 2003, c. 52, §1, is repealed and the following enacted in its place:
(1) Fifty-two weeks, if there is no permanent impairment resulting from the injury or if the permanent impairment resulting from the injury is not in excess of 3%;
(2) One hundred and four weeks, if the permanent impairment resulting from the injury is in excess of 3% but not in excess of 6%;
(3) One hundred and fifty-six weeks, if the permanent impairment resulting from the injury is in excess of 6% but not in excess of 9%;
(4) Two hundred and eight weeks, if the permanent impairment resulting from the injury is in excess of 9% but not in excess of 12%;
(5) Two hundred and sixty weeks, if the permanent impairment resulting from the injury is in excess of 12% but not in excess of 15%;
(6) Three hundred and twelve weeks, if the permanent impairment resulting from the injury is in excess of 15% but not in excess of 18%;
(7) Three hundred and sixty-four weeks, if the permanent impairment resulting from the injury is in excess of 18% but not in excess of 21%;
(8) Four hundred and sixteen weeks, if the permanent impairment resulting from the injury is in excess of 21% but not in excess of 24%;
(9) Four hundred and sixty-eight weeks, if the permanent impairment resulting from the injury is in excess of 24% but not in excess of 27%; and
(10) Five hundred and twenty weeks, if the permanent impairment resulting from the injury is in excess of 27%.
For purposes of this paragraph, the permanent impairment resulting from the personal injury is determined according to subsection 1-A and the impairment guidelines adopted by the board pursuant to section 153, subsection 8.
Sec. 16. 39-A MRSA §213, sub-§2, as amended by PL 2001, c. 712, §3 and affected by §6, is repealed.
Sec. 17. 39-A MRSA §213, sub-§3, as amended by PL 2001, c. 448, §1, is repealed.
Sec. 18. 39-A MRSA §213, sub-§4, as amended by PL 2001, c. 448, §2, is repealed.
Sec. 19. 39-A MRSA §223, sub-§1, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Sec. 20. 39-A MRSA §306, sub-§1, as enacted by PL 1999, c. 354, §6 and affected by §10, is amended to read:
Sec. 21. 39-A MRSA §324, sub-§1, as amended by PL 2009, c. 129, §9 and affected by §13, is further amended to read:
Sec. 22. 39-A MRSA §324, sub-§2, as amended by PL 2009, c. 129, §10 and affected by §13, is further amended to read:
(1) The fine for each day of noncompliance must be divided as follows: Of each day's fine amount, the first $50 is paid to the employee to whom compensation is due and the remainder must be paid to the board and be credited to the Workers' Compensation Board Administrative Fund.
(2) If a fine is assessed against any employer or insurance carrier under this subsection on petition by an employee, the employer or insurance carrier shall pay reasonable costs and attorney's fees related to the fine, as determined by the board, to the employee.
(3) Fines assessed under this subsection may be enforced by the Superior Court in the same manner as provided in section 323.
Sec. 23. 39-A MRSA §325, sub-§4, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
(1) Medical examination fee and witness fee;
(2) Any other medical witness fee, including cost of subpoena;
(3) Cost of court reporter service; and
(4) Appeal costs; and
(1) Ten percent of the first $50,000 of the indemnity benefits of the settlement;
(2) Nine percent of the first $10,000 over $50,000 of the indemnity benefits of the settlement;
(3) Eight percent of the next $10,000 over $50,000 of the indemnity benefits of the settlement;
(4) Seven percent of the next $10,000 over $50,000 of the indemnity benefits of the settlement;
(5) Six percent of the next $10,000 over $50,000 of the indemnity benefits of the settlement; and
(6) Five percent of any amount over $90,000 of the indemnity benefits of the settlement . ; and
Sec. 24. 39-A MRSA §355-A, as enacted by PL 2001, c. 448, §5, is repealed.
Sec. 25. 39-A MRSA §355-B, as enacted by PL 2001, c. 448, §5, is repealed.
Sec. 26. 39-A MRSA §355-C, as enacted by PL 2001, c. 448, §5, is repealed.
Sec. 27. 39-A MRSA §356, as amended by PL 2001, c. 448, §6, is repealed.
Sec. 28. 39-A MRSA §358-A, sub-§1, as enacted by PL 1997, c. 486, §8, is amended to read:
The report must contain specific data regarding compliance, including benchmarks measuring individual insurer's, self-insurer's , or 3rd-party administrator's compliance with the provisions of this Act and any penalties assessed. Benchmarks must be developed by the board with input from insurers, self-insurers and 3rd-party administrators and other parties the board considers appropriate. The board shall also report on the utilization of troubleshooters, advocates and retained legal counsel, with correlating outcomes.
SUMMARY
This bill amends provisions of the Maine Workers' Compensation Act of 1992 and procedures of the Workers' Compensation Board.
1. It amends the law to provide for full reimbursement to an employer from proceeds paid by a 3rd party.
2. It amends the selection process for the Workers' Compensation Board. Under current law, the 3 representatives of labor on the board must be appointed from a list provided by a bona fide labor organization or association of employees. This bill instead requires that one of the 3 labor members be appointed from that list; the other 2 labor representatives must be appointed at the discretion of the Governor.
3. It repeals the troubleshooter program established under the Maine Revised Statutes, Title 39-A, section 153, subsection 2.
4. It amends the mediation provision to require that mediation be requested both by the employer and the employee.
5. It eliminates the board's audit and enforcement oversight of the Maine Insurance Guaranty Association.
6. It amends the law to address the decision in Roy v. Bath Iron Works, 2008 ME 94, to specifically provide that a subsequent nonwork injury, independent of any work-related injury, and unrelated to any work-related injury, that results in total disability results in a cessation of benefits for the duration of the disability.
7. It specifies that, if an award has been entered, the employer, insurer or group self-insurer may petition the board for a reduction and may not reduce or discontinue benefits until the issuance of a decree by a hearing officer, after which benefits may be reduced or discontinued pending an appeal from the hearing officer's decree.
8. It eliminates the requirement that a physician have an active practice in order to be qualified to conduct a medical examination.
9. It provides that if an employee chooses to have a physician present at an employer-required examination, the employee must pay the cost of that physician.
10. Under current law, in establishing standards, schedules or scales of maximum charges, the board is required to consider maximum charges paid by private 3rd-party payors. This bill requires the board to base those standards, schedules or scales on reasonably and customarily negotiated charges between health care providers and 3rd-party insurers and requires that if standards are not established by October 1, 2011, then charges customarily paid by MaineCare apply.
11. It amends the laws governing compensation for partial incapacity.
12. It repeals provisions of the law requiring the board to adjust the 15% impairment threshold, dates of injury and extension of the period of benefit limitation.
13. It provides that an employee who is otherwise retired is not presumed to have a loss of earnings or earning capacity regardless of whether the employee terminates active employment.
14. It amends the statute of limitations periods when no first report of injury is required to be filed.
15. It amends the law to address the decision in Larochelle v. Crest Shoe, 655 A. 2d 1245 (Me 1995) to specify that overpayments made during the pendancy of a motion for findings of fact and conclusions of law must be repaid.
16. It prohibits the board from assessing a fine against an employer or insurer in excess of $25,000 unless the employer or insurer intentionally and fraudulently failed to pay compensation.
17. It provides that, for injuries occurring after January 1, 2005, lump-sum attorney's fees are paid on the indemnity portion of a settlement.
18. It prohibits the assessment of an attorney's fee for the amount of any settlement intended to pay for current or future medical costs.
19. It repeals provisions regarding the Supplemental Benefits Fund, which was established to reimburse payments of compensation to employees under provisions governing extended benefits for partial incapacity that are repealed in this bill.