‘An Act To Amend the Laws Governing the Filing of Wage Statements and Other Laws under the Maine Workers' Compensation Act of 1992’
| SP0391 LD 1119 |
Session - 127th Maine Legislature C "A", Filing Number S-286, Sponsored by
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LR 1482 Item 2 |
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| Bill Tracking, Additional Documents | Chamber Status | ||
Amend the bill by striking out the title and substituting the following:
‘An Act To Amend the Laws Governing the Filing of Wage Statements and Other Laws under the Maine Workers' Compensation Act of 1992’
Amend the bill by striking out everything after the enacting clause and before the summary and inserting the following:
‘Sec. 1. 2 MRSA §6-E, sub-§6, as enacted by PL 1993, c. 145, §1, is amended to read:
Sec. 2. 39-A MRSA §105, sub-§4, as amended by PL 2013, c. 63, §5, is further amended to read:
Sec. 3. 39-A MRSA §152, sub-§5, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Sec. 4. 39-A MRSA §153, sub-§9, as amended by PL 2005, c. 603, §3, is further amended to read:
Within 180 days of notice of insolvency to the board or its designee and the Maine Insurance Guaranty Association, the executive director of the board or the executive director's designee shall meet with the Maine Insurance Guaranty Association, pursuant to rules established by the board, to review the insolvency.
Sec. 5. 39-A MRSA §205, sub-§9, ¶B, as amended by PL 2011, c. 647, §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 resolved by a decree issued by a hearing officer an administrative law judge. The employer, insurer or group self-insurer may reduce or discontinue benefits pursuant to such a decree pending a motion for findings of fact and conclusions of law or 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. 6. 39-A MRSA §206, sub-§2, 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 §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 an administrative law judge. 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. The employer shall give the employee notice of this right at the time the employer requests an examination.
Sec. 8. 39-A MRSA §213, sub-§1, as repealed and replaced by PL 2011, c. 647, §7, is amended to read:
Orders extending benefits beyond 520 weeks are not subject to review more often than every 2 years from the date of the board order or request allowing an extension.
Sec. 9. 39-A MRSA §303, as amended by PL 2013, c. 63, §8, is further amended to read:
§ 303. Reports to board
When any employee has reported to an employer under this Act any injury arising out of and in the course of the employee's employment that has caused the employee to lose a day's work, or when the employer has knowledge of any such injury, the employer shall report the injury to the board within 7 days after the employer receives notice or has knowledge of the injury. An insured employer that has notice or knowledge of any such injury and fails to give timely notice to its insurer shall reimburse the insurer for any penalty that is due as a result of the late filing of the report of injury. The employer shall also report the average weekly wages or earnings of the employee, as defined in section 102, subsection 4, together with any other information required by the board, within 30 days after the employer receives notice or has knowledge of a claim for compensation under section 212, 213 or 215, unless a wage statement has previously been filed with the board. The wage statement must report the earnings or wages of the employee on a weekly basis, unless the employee is paid on other than a weekly basis, in which case the employer may report the earnings or wages in the same manner as earnings or wages are paid. A copy of the wage information must be mailed to the employee. The employer shall report when the injured employee resumes the employee's employment and the amount of the employee's wages or earnings at that time. The employer shall complete a first report of injury form for any injury that has required the services of a health care provider within 7 days after the employer receives notice or has knowledge of the injury. The employer shall provide a copy of the form to the injured employee and retain a copy for the employer's records but is not obligated to submit the form to the board unless the injury later causes the employee to lose a day's work. The employer is also required to submit the form to the board if the board has finally adopted a major substantive rule pursuant to Title 5, chapter 375, subchapter 2-A to require the form to be filed electronically.
If an employee has had an incapacity beyond the 14-day period established in section 204 and subsequently returns to work and attends medical appointments related to the injury, the employer is not required to report the lost time for such appointments to the board if the employee did not lose wages for attending such appointments.
Sec. 10. 39-A MRSA §309, sub-§3, as amended by PL 2005, c. 99, §1, is further amended to read:
Depositions or subpoenas of health care practitioners who have submitted sworn written evidence are permitted only if the hearing officer administrative law judge finds that the testimony is sufficiently important to outweigh the delay in the proceeding.
The board may establish procedures for the prefiling of summaries of the testimony of any witness in written form. In all proceedings before the board or its designee, discovery beyond that specified in this section is available only upon application to the board, which may approve the application in the exercise of its discretion.
Sec. 11. 39-A MRSA §312, sub-§9, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Sec. 12. 39-A MRSA §315, first ¶, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Upon filing of the mediator's report indicating that mediation has not resolved all issues in dispute, the matter must be referred to the board, which shall fix a time for hearing upon at least a 5-day notice given to all the parties or to the attorney of record of each party. All hearings must be held before a hearing officer an administrative law judge employed by the board at such towns and cities geographically distributed throughout the State as the board designates. If the designated place of hearing is more than 10 miles from the place where the injury occurred, the employer shall provide transportation or reimburse the employee for reasonable mileage in traveling within the State to and from the hearing. The amount allowed for travel is determined by the board and awarded separately in the decree.
Sec. 13. 39-A MRSA §318, as amended by PL 2013, c. 63, §10 and affected by §16, is further amended to read:
§ 318. Hearing and decision
The hearing officer administrative law judge shall hear those witnesses as may be presented or, by agreement, the claims of both parties as to the facts may be presented by affidavits. If the facts are not in dispute, the parties may file with the hearing officer administrative law judge an agreed statement of facts for a ruling on the applicable law. From the evidence or statements furnished, the hearing officer administrative law judge shall in a summary manner decide the merits of the controversy. The hearing officer's administrative law judge's decision must be filed in the office of the board and a copy, attested by the clerk of the board, mailed promptly to all parties interested or to the attorney of record of each party. The hearing officer's administrative law judge's decision, in the absence of fraud, on all questions of fact is final; but if the hearing officer administrative law judge expressly finds that any party has or has not sustained the party's burden of proof, that finding is considered a conclusion of law and is reviewable in accordance with section 322.
The hearing officer administrative law judge, upon motion by the petitioning party, may include a finding in the decree that the employer's refusal to pay the benefits at issue was not based on any rational grounds developed between the claim and formal hearing. Upon such a finding, the employer shall pay interest to the employee under section 205, subsection 6 at a rate of 25% per annum from the date each payment was due, instead of 10% per annum.
The hearing officer administrative law judge, upon the motion of a party made within 20 days after notice of the decision or upon its own motion, may find the facts specially and state separately the conclusions of law and file the appropriate decision if it differs from the decision filed before the request was made. Those findings and conclusions and the revised decision must be filed in the office of the board and a copy, attested by the clerk of the board, must be mailed promptly to all parties interested. The running of the time for appeal is terminated by a timely motion made pursuant to this section and the full time for appeal commences to run from the filing of those findings and conclusions and the revised decision.
Clerical mistakes in decrees, orders or other parts of the record and errors arising from oversight or omission may be corrected by the board at any time of its own initiative, at the request of the hearing officer administrative law judge or on the motion of any party and after notice to the parties. During the pendency of an appeal, these mistakes may be corrected before the appeal is filed with the division and thereafter, while the appeal is pending, may be corrected with leave of the division.
Sec. 14. 39-A MRSA §320, as amended by PL 2013, c. 63, §§11 and 12 and affected by §16, is further amended to read:
§ 320. Review by full board
A hearing officer An administrative law judge may request that the full board review a decision of the hearing officer administrative law judge if the decision involves an issue that is of significance to the operation of the workers' compensation system. Except when a motion is filed to find the facts specially and state separately the conclusions of law, the request must be made within 25 days of the issuance of a decision. If a motion is filed to find the facts specially and state separately the conclusions of law, the request must be made within 5 days of the issuance of a decision on the motion. There may be no such review of findings of fact made by a hearing officer an administrative law judge.
If a hearing officer an administrative law judge asks for review, the time for appeal is stayed and no further action may be taken until a decision of the board has been made. If the board reviews a decision of a hearing officer an administrative law judge, any appeal must be from the decision of the board and must be made to the Law Court in accordance with section 322. The time for appeal begins upon the board's issuance of a written decision on the merits of the case or written notice that the board denies review.
The board shall vote on whether to review the decision. If a majority of the board's membership fails to vote to grant review or the board fails to act within 60 days after receiving the initial request for review, the decision of the hearing officer administrative law judge stands, and any appeal must be made to the division in accordance with section 321-B. If the board votes to review the decision, the board may delegate responsibility for reviewing the decision of the hearing officer administrative law judge under this section to panels of board members consisting of equal numbers of representatives of labor and management. Review must be on the record and on written briefs only. Upon a vote of a majority of the board's membership, the board shall issue a written decision affirming, remanding, vacating or modifying the hearing officer's administrative law judge's decision. The written decision of the board must be filed with the board and mailed to the parties or their counsel. If the board fails to adopt a decision by majority vote, the decision of the hearing officer administrative law judge stands and is subject to direct appellate review in the same manner as if the board had not voted to review the decision.
Sec. 15. 39-A MRSA §321-A, sub-§§2 and 3, as enacted by PL 2011, c. 647, §20, are amended to read:
Sec. 16. 39-A MRSA §321-B, as amended by PL 2013, c. 63, §§13 and 14 and affected by §16, is further amended to read:
§ 321-B. Appeal from administrative law judge decision
Sec. 17. 39-A MRSA §322, as amended by PL 2011, c. 647, §21, is further amended to read:
§ 322. Appeal from decision of appellate division or board
If the petition for appellate review is granted, the clerk of the Law Court shall notify the parties of the briefing schedule consistent with the Maine Rules of Civil Procedure and in all respects the appeal before the Law Court must be treated as an appeal in an action in which equitable relief has been sought, except that there may be no appeal upon findings of fact. The Law Court may, after due consideration, reverse, modify or affirm any decision of the board.
Sec. 18. 39-A MRSA §324, sub-§1, as amended by PL 2013, c. 63, §15, is further amended to read:
Sec. 19. 39-A MRSA §329, as enacted by PL 1999, c. 202, §1, is amended to read:
§ 329. Interpreter required
An employee whose native language is not English and who does not understand the English language to the degree necessary to reasonably understand and participate in proceedings that affect the employee's rights is entitled to have an interpreter present at all proceedings before the board or a hearing officer an administrative law judge relating to that employee's rights. The board shall provide and pay the cost of the interpreter. To the extent possible, the board shall seek advice from the Department of Labor in locating appropriate interpreters to meet the needs of employees in the workers' compensation system.
Sec. 20. 39-A MRSA §353, first ¶, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
An employee may not be discriminated against by any employer in any way for testifying or asserting any claim under this Act. Any employee who is so discriminated against may file a petition alleging a violation of this section. The matter must be referred to a hearing officer an administrative law judge for a formal hearing under section 315, but any hearing officer administrative law judge who has previously rendered any decision concerning the claim must be excluded. If the employee prevails at this hearing, the hearing officer administrative law judge may award the employee reinstatement to the employee's previous job, payment of back wages, reestablishment of employee benefits and reasonable attorney's fees.
Sec. 21. 39-A MRSA §355-C, sub-§3, as enacted by PL 2001, c. 448, §5, is amended to read:
Sec. 22. 39-A MRSA §358-A, sub-§1, ¶¶F and G, as enacted by PL 1997, c. 486, §8, are amended to read:
Sec. 23. 39-A MRSA §358-A, sub-§1, ¶H is enacted to read:
Sec. 24. Transition. A Workers' Compensation Board hearing officer serving on the effective date of this Act who is admitted to the practice of law in Maine becomes an administrative law judge on the same terms and conditions of employment as existed on the day prior to the effective date of this Act and has the same authority to hear and decide cases as existed prior to the effective date of this Act. A Workers' Compensation Board hearing officer serving on the effective date of this Act who is not admitted to the practice of law in Maine remains a hearing officer on the same terms and conditions of employment as existed on the day prior to the effective date of this Act and, notwithstanding any provision of law to the contrary, is considered an administrative law judge for all purposes under the Maine Revised Statutes, Title 39-A and has all of the rights, responsibilities, duties and authority that existed prior to the effective date of this Act. The term "hearing officer," as used in Title 39-A prior to the effective date of this Act, is coextensive with the term "administrative law judge," used subsequent to the effective date of this Act.’
summary
This amendment replaces the bill and makes various changes in the workers' compensation laws.
1. It maintains the provision in the bill that provides that an employer may report wages of an employee to the Workers' Compensation Board in the same manner as the employee is paid and adds that an employer is not required to report lost time to the Workers' Compensation Board beyond 14 days for an injured employee who has returned to work and subsequently attended medical appointments if the employee did not lose wages for attending such appointments.
2. It requires the Workers' Compensation Board to inform the Maine Insurance Guaranty Association of the association's responsibilities under the Maine Workers' Compensation Act of 1992 within 180 days.
3. It changes the job title of hearing officer to administrative law judge, except for any hearing officer currently serving who is not admitted to the practice of law in Maine.
4. It requires the Workers' Compensation Board to develop rules in regards to the timing and deadlines for independent medical examiner examinations and directs the Workers' Compensation Board to annually report data regarding these examinations to the Legislature.