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Proposed changes to Workers’ Compensation Law threaten access to benefits for Maine’s injured workers

LD 1571 is a bill sponsored by Assistant House Majority Leader Andre Cushing, R-Hampden that seeks to decimate Maine’s workers’ compensation law, making it harder for injured workers to receive lost time and medical benefits for on-the-job injuries.

The bill, which will be heard by the Legislature’s Labor, Commerce, Research and Economic Development Committee this spring, proposes sweeping changes to the existing workers’ compensation law, nearly all of which favor employers and insurance companies over injured workers. The proposed changes include:

• Instituting a scale of benefits based on the severity of an injury and reducing the overall number of weeks that benefits are paid to injured workers.

• Prohibiting the Workers’ Compensation Board from extending the duration of benefits for injured workers even in cases of extreme financial hardship.

• Reducing organized labor’s representation on the Workers’ Compensation Board.

• Eliminating the requirement that doctors performing insurance medical examinations have an active practice treating patients.

• Eliminating the requirement that the insurer pay for the employee to have his or her own physician present at insurance medical examinations.

• Curtailing injured workers’ access to mediation by requiring employer consent to participate.

• Eliminating the Workers’ Compensation Board troubleshooter program.

• Stopping benefits to injured workers with subsequent, non-work related, disabling illnesses and injuries.

• Limiting penalties for employers and insurers who intentionally or fraudulently fail to pay benefits within the required time limits.

• Providing for full reimbursement to employers from proceeds paid by a 3rd party rather than allowing an injured worker to reduce by the amount he or she paid an attorney to obtain the 3rd party recovery.

• Limiting injured workers’ attorneys’ fees.

Perhaps the most concerning proposal is the one instituting a scale of benefits based on the severity of an injury and reducing the overall number of weeks that benefits are paid to injured workers. Proponents argue that the current law is arbitrary in that two people with the same injury could receive different amounts in benefits based on when they are injured. However, the proposed scale of benefits and overall reduction of benefits further limits injured workers’ access to benefits at a time when they are already reduced, thereby preventing injured workers from getting back on their feet. This proposal also ignores the fact that many injured workers will never return to their field or earn what they earned before they were injured.

The proposal to eliminate the requirement that doctors performing insurance medical examinations have an active practice treating patients is also very concerning. Doctors that actually treat patients on an ongoing basis are more likely to listen and care about injured workers than doctors that make their living exclusively by performing insurance medical examinations. The proposal to make injured workers pay to have their own doctors attend these insurance medical examinations means that injured workers will not be able to avail themselves of this statutory right because most, if not all, simply cannot afford it. The statutory right of having your own doctor present exists to safeguard the injured worker’s rights during the examination.

Curtailing access to mediation also hurts injured workers because mediation brings both parties to the table and often results in agreements to pay, in addition to clarifying the issues in the case for the injured worker.

Eliminating the troubleshooter program hurts injured workers because the troubleshooter is often the first phone call the injured worker makes to the Workers’ Compensation Board to inquire about his or her legal rights. The troubleshooter can help the injured worker resolve payment and other issues with the insurance company, often without getting a lawyer involved. When there is a legal issue, the troubleshooter will encourage the injured worker to talk to an attorney.

Finally, limiting injured workers’ attorneys’ fees will narrow the pool of qualified lawyers willing to handle these types of cases. This proposal is made under the guise of helping the injured worker, but it is a ruse. Prior to 1992, the employer-insurer had to pay the injured worker’s attorneys’ fees. Since then, the injured worker has to pay out of his or her own pocket. If the employers and insurers are truly concerned about the injured worker having to pay, they should change the law back to the way it was before.

The proposed changes have received a lot of media attention recently, including a segment on Maine Watch with Jennifer Rooks. In response to a question from Rooks about labor’s opposition to the bill, Maine Workers’ Compensation Trust Administrator Joseph Edwards stated that the proposed changes “are not to be taken seriously.” The Workers’ Compensation Board Chair and Executive Director Paul H. Sighinolfi, Esq. stated that while there are some aspects of the current law that could be improved, many of the proposed changes are too extreme. Some have gone so far as to call it a “power grab” by the majority party.

The employer-insurer lobby’s attempt earlier in 2010 to revise the law, including eliminating benefits for mental stress injuries, died in committee after compelling testimony from firefighters and police officers stating that many in their field have suffered from post-traumatic stress disorder and other serious emotional disabilities for just doing their jobs. Mental stress injuries are already subject to a heightened burden of proof in Maine.

If you have been injured at work and need to speak with an attorney, call Adrienne S. Hansen at Maine Employee Rights Group, toll free 1-800-490-5218, for a free telephone consultation today.