Maine Employment Lawyer Blog

Sen. Susan Collins (R-ME) is sponsoring a bill that would, among other things, return roughly $11 billion to the U.S. Postal Service (USPS) from the Federal Employee Retirement System (FERS). According to Collins, the $11 billion is equal to the amount of money that USPS has overpaid in pension contributions. By returning this money to USPS, it could offer incentives to employees if they retired. The goal would be to reduce the USPS' workforce by about 100,000 through these incentives.

The bill would also reform the federal workers' compensation program. According to Collins, the bill "would bring federal benefits more in line with compensation levels offered under most states' laws, and encourage more employees who are able to work to return to the workforce."

Joe Lieberman (I/D-CT), Tom Carper (D-DE), and Scott Brown (R-MA) are also sponsoring the bill.

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.

Employers that hire through private temp agencies are not liable for discrimination under the Workers' Compensation Act, even if they fire an employee the very day after he asserts a work injury. To hold otherwise, says Maine's Supreme Judicial Court, would require such employers to purchase additional insurance coverage, which is inconsistent with the Legislature's goals of reducing costs to employers, attracting employers to the state, and cutting costs to the workers' compensation system as a whole.

In Doughty v. Work Opportunities Unlimited, a divided (6-3) Law Court decided that Charles Doughty, who worked at Poland Springs but was hired through Work Opportunities, a temp agency, and was fired the day after he asserted a work injury, did not have the right to sue Poland Springs for discrimination under Workers' Compensation Act because Poland Springs was not his employer. The court focused on the fact that Doughty's contract-for-hire was with Work Opportunities, even though he worked at the Poland Springs' bottling plant, performing Poland Springs' work, under Poland Springs' direction and control. In Doughty's case, he sought employment at Poland Springs by submitting an application to Work Opportunities. Poland Springs interviewed and hired him. He worked every day at the Poland Springs' plant, filling, capping and labeling bottles. Poland Springs controlled his schedule and provided all the equipment and machines he worked on. He was paid by the hour, supervised by Poland Spring, and not Work Opportunities. The next day after Doughty got hurt on the job, Poland Springs notified Work Opportunities that they were terminating Doughty.

The Workers' Compensation Act contains an anti-discrimination provision which states that an employee may not be discriminated against in any way for testifying in a workers' compensation proceeding or for asserting a claim under the Act. It provides remedies including reinstatement with back pay and benefits, and payment of attorneys' fees. However, it applies only to an employer against whom the employee has testified or asserted a claim. The court found that Poland Springs was not that employer.

Doughty argued that Poland Springs was in fact his employer because Poland Springs, not Work Opportunities, controlled his work. Doughty cited Marcoux v. Nichols Portland, a 2004 case where the court used the "control test" to determine whether Nichols Portland was Marcoux's employer for purposes of immunity from civil liability for negligence. Marcoux was a supervisor for a staffing company who was sent over to Nichols Portland to monitor temporary employees working there. While making her rounds at Nichols Portland, she slipped on grease and suffered debilitating injuries. Adrienne S. Hansen of Maine Employee Rights Group represented Marcoux in both her workers' compensation case against the staffing company she worked for and the negligence case against Nichols Portland. Adrienne convinced the court that Nichols Portland did not exert sufficient control over Marcoux's work to be her employer and therefore was not immune from civil liability for negligence. The Marcoux case was a reaffirmation of the "control test" as the proper way to determine the existence of an employer-employee relationship, regardless of what the parties said in a contract or just verbally.

Doughty involves an employer's immunity from liability for discrimination under the Workers' Compensation Act, as opposed to immunity from civil liability for negligence. In Doughty, the court rejected the "control test" and relied instead on the fact that Doughty did not have a contract-for-hire with Poland Springs. The court reasoned that if the "control test" governed in this instance, the outcome as applied to temporary workers, would be preordained because such workers almost always work under the control of the third party employer. Such an outcome would have significant unintended consequences, the court said:

"Because the Act requires every employer to secure the payment of compensation... with respect to all employees, two workers' compensation insurance policies would have to be acquired for a single employee: one by the temporary help service and the other by the third-party employer. This outcome is illogical and cannot be squared with the Legislature's goals in reforming the Workers' Compensation Act, which include reducing workers' compensation costs to employers and attracting employers to the state, as well as cutting costs to the system as a whole."

The court did say that although Doughty was barred from suing Poland Springs for discrimination under the Workers' Compensation Act, he can still sue Poland Springs for discrimination under the Maine Human Rights Act, which features broader remedies such as compensatory and punitive damages.

Critics of the court's decision say that it opens a loophole for Maine employers to avoid liability for discrimination under the Workers' Compensation Act by subcontracting out their Human Resources function to a temp agency, just as Poland Springs has done ever since the initial startup of its plant in Hollis ten years ago. These employers are not using temp agencies simply to supplement their workforce in situations such as employee absences, temporary skill shortages, and special assignments; they are using them to hire permanent staff. Further, critics say that the court appears to have been motivated by wanting to avoid increasing costs to employers rather than accurately interpreting the law. Finally, critics question whether the court's consolation, that temp-to-hire employees can still pursue discrimination claims against third party employers through the Maine Human Rights Act, is truly a viable option.

If you have been injured at work or wrongfully terminated, call Maine Employee Rights Group, toll free 1.800.490.5218, for a free consultation today.

Many employers in Maine and across the country engage in the practice of misclassifying employees as independent contractors. Misclassification is sometimes called "1099'ing" because of the 1099 tax form independent contractors receive instead of a W-2 form. While misclassification is illegal, it can save employers as much as 30% in payroll and related taxes that they would have to pay if they correctly classified their workers as employees. Employees who are misclassified as independent contractors can miss out on workers compensation insurance, unemployment insurance, fair pay, and other workplace protections.

The National Employment Law Project (NELP) has published a report which identifies the steps various states have taken in the past year to combat the problem of misclassification. The report identifies a new section of Maine's Workers Compensation Act which sets special rules for when employers can classify workers in the trucking and messenger service industries as independent contractors. Under this statute, workers in these industries are presumed to be employees and employers can only classify them as independent contractors if they can satisfy specific criteria. To illustrate, under this statute, if a worker is not covered by his employer's workers compensation insurance, and he does not own or lease the vehicle he uses for work, his employer cannot classify him as an independent contractor.

In addition to legislative action, the NELP report identifies some states that have stepped up enforcement of laws already on the books. For instance, in the past year, Massachusetts' Joint Task Force on the Underground Economy and Employee Misclassification has recovered nearly $6.5 million through its enforcement efforts--which included $2 million in unpaid unemployment insurance taxes. Recently, there have been reports of rising unemployment insurance tax rates in Maine. Increased enforcement actions against employers who misclassify their workers as independent contractors could help eliminate the need to raise these tax rates. If employers who are violating the law are forced to pay the taxes that the law requires them to pay, the rates can be lower for all employers.

If you believe that your employer has misclassified you as an independent contractor, you should contact an experienced employment attorney for advice.

In Michaud v. Fraser Paper Limited, the Maine Workers' Compensation Board ruled that a 66 year-old mill worker with Reactive Airway Disease from workplace chemical exposure was ineligible for workers' compensation benefits because he accepted an early retirement package that was offered by the mill, despite the fact that his light duty office job was slated for elimination as part of a company-wide downsizing.

Raymond Michaud is a 66 year-old paper mill supervisor from Frenchville. He worked for Fraser Paper Limited in Madawaska for 30 years. In 2000, he suffered a chemical exposure at work that injured his lungs and had a long-term effect on his pulmonary health. He was medically restricted from working in the mill, as he could not be exposed to fumes and dust and could not exert himself. In 2002, the mill gave him a light duty office assignment, which was less than full-time, and which he performed for approximately one year.

In 2003, due to financial difficulties, the mill announced it would lay off 190 employees. Supervisory employees over the age of 55, including Michaud, were given the option to take early retirement, with certain incentives. Michaud accepted the early retirement package, assuming that as an older worker on a less than full-time light duty assignment, his position would be eliminated during layoffs.

Out of work, with permanent lung injuries, Michaud asked the mill to pay weekly workers' compensation benefits. The mill refused, invoking the retiree presumption under the Workers' Compensation Act, which states that an employee who terminates active employment and is receiving retirement benefits is presumed not to have any loss of earnings or earning capacity as a result of his compensable work injury.

The hearing officer found that Michaud had voluntarily retired which put the burden on Michaud to show that he was physically unable, because of his work-related injury, to perform any work suitable to his training and experience. Where Michaud had extensive work restrictions due to his pulmonary condition, but was not totally medically disabled from any job and had been actively working in the office for the last year, the hearing officer found that he had not overcome the presumption of voluntary retirement, and was not entitled to further weekly benefits.

While disappointing for Michaud, the hearing officer's ruling is consistent with the Law Court's opinion in Costales v. SD Warren, which set the standard for rebutting the retiree presumption, and with the legislative intent of Section 223 to limit recovery of workers' compensation and retiree benefits at the same time from the same employer. It was not clear from the opinion whether Michaud would have received any severance pay had he declined to take early retirement and let the mill lay him off in the downsizing. This is an example of a decision that is legally correct, but just feels wrong.

If you have been injured at work, call Adrienne Hansen at the Maine Employee Rights Group for a free telephone consultation at 1-800-490-5218.

In Johnson v. True North Salmon, the Maine Workers' Compensation Board emphasized the importance of performing a good faith work search when seeking 100% partial incapacity benefits under Section 213. A 50 year-old laborer in a fish processing plant, Johnson suffered a repetitive stress injury to his elbow from "pin boning" several hundred fish a day at work. Johnson did not have a high school diploma and had worked in jobs requiring heavy or repetitive use of both hands for his entire life. Prior to his injury, Johnson earned $480 a week at True North Salmon. Subsequently, his doctor diagnosed him with epicondylitis causing swelling and pain and gave him work restrictions of no heavy or repetitive work with his right hand.

Because he could not return to pin boning and the company had no light duty work for him, Johnson asked the Board to award 100% partial incapacity benefits under Section 213. To obtain 100% benefits for only partial incapacity, Johnson had to show, through work search or other vocational evidence, that work was unavailable within his local community as a result of his work injury. Johnson produced evidence of a work search conducted over the course of five months, but the Board declined to award 100% benefits because Johnson listed several employers repeatedly, week after week, most of which were not actually advertising job openings, and he did not use help wanted ads or other employment resources. Instead, the Board found that Johnson could earn $225-250 per week and reduced his benefits accordingly. The Board did take into account Johnson's limitations with respect to the use of his right hand as a result of the work injury, his age, lack of education, lack of experience, training or transferable skills, and the fact that he lives in an isolated geographic area of the State with a poor labor market, finding that these factors, combined with his work injury, made it unlikely that he would be able to find steady, full-time employment. However, the Board felt that Johnson had not met his burden of proof to show that he looked for work in good faith.

This decision emphasizes the importance of a good faith work search for all partially disabled claimants seeking 100% benefits and shows the degree to which the Law Court's decision in Monaghan v. Jordan's Meats influences the hearing officers in their decisions. In Monaghan, the Law Court gave a thorough analysis of the work search rule in workers' compensation cases. The Court explained that whether an injured employee receives total or partial incapacity benefits depends on the extent to which the employee retains the ability to earn incomes after a workplace injury. The employee's post-injury earning capacity is based on both the employee's physical capacity to earn wages, and (2) the availability of work within the employee's physical limitations. An employee who retains some ability to earn may nevertheless be entitled to receive the full amount of workers' compensation benefits, with no deduction for earning capacity, if the persisting effects of the work-related injury prevent the employee from engaging in any regular paying work.

There are three ways in which an injured employee can show entitlement to the full amount of workers' compensation benefits. First, an employee who demonstrates a total physical incapacity, that is, the medically demonstrated lack of the physical ability to earn, can prove entitlement to "total" incapacity benefits pursuant to Section 212 without a showing of any work search or other evidence that work is unavailable.
Second, in limited situations, an employee suffering only partial incapacity to earn may be entitled to total benefits pursuant to Section 212 if the employee can establish both (1) the unavailability of work within the employee's local community, and (2) the physical inability to perform full-time work in the statewide labor market, regardless of availability. Employees who are totally medically disabled under Section 212 are not subject to the 10-year time limit on receiving benefits.

Third, a partially incapacitated employee may be entitled to 100% partial incapacity benefits pursuant to Section 213 based on the combination of a partially incapacitating work injury and the loss of employment opportunities that are attributable to that injury. In order to obtain the 100% benefit, it must be established, pursuant to the "work search rule" that work is unavailable within the employee's local community as a result of the work injury. When the employee is the petitioning party, the employee has the ultimate burden of proof to show that work is unavailable as a result of the work injury within the employee's local community.

When an employee attempts to show the unavailability of work through work search evidence, the work search must be adequate as a matter of law. An adequate work search should disclose that the worker has made a reasonable exploration of the labor market in his community for the kind of work he has regained some ability to perform, and that he was unable to obtain such work for pay, either because no stable market for it existed or, if there was a stable market, the work was not available to him because of his continuing limitations from the work injury which prevented him from doing it. There are a number of factors the Board will consider when deciding whether an employee has proven his entitlement to 100% benefits for a partial injury claim:
(1) The number of inquiries made or applications submitted by an employee

(2) Whether the search was undertaken in good faith

(3) Whether the search was too restrictive

(4) Whether the search was limited solely to employers who were not advertising job openings or whether the employee also made appropriate use of help wanted ads, career center services or other job resources

(5) Whether the search was targeted to work the employee is capable of performing

(6) Whether the employee over-emphasized work restrictions when applying for jobs

(7) Whether the employee engaged in other efforts to find employment or increase prospects for employment such as taking classes or volunteering

(8) The employee's personal characteristics such as age, training, education, and work
history

(9) The size of the job market in the employee's geographic area.

Partnering with Maine Employee Rights Group will give you the best chance of proving there is no work for you in your community as a result of your injury and getting top compensation to help you and your family get by until you get better. If you have been injured at work, call Adrienne Hansen at the Maine Employee Rights Group for a free telephone consultation at 1-800-490-5218.

Matthew Doucette, a 29 year-old Sysco warehouse worker, injured his back in April 2004. He was on light duty for two weeks but lost no earnings as a result of the injury. Sysco terminated his employment for reasons unrelated to his injury in May 2004 and Doucette had no further problems with his back until 2008, when he reinjured it while working for a different employer. In January 2009, Doucette filed a petition seeking compensation from his April 2004 date of injury to the present and continuing. The hearing officer found that Doucette was entitled to the protection of the Act for the 2004 injury even though he lost no earnings because of it. Due to a procedural glitch, the insurance company failed to file the Notice of Controversy contesting the claim within the required 14 day time period. The insurance company filed the Notice on the morning of the 15th day. The hearing officer found that the insurance company had violated the "14 day rule" requiring insurance companies to pay or contest claims within 14 days and ordered the insurance company to pay total incapacity benefits from the original date of injury, April 2004, forward, even though Doucette lost no earnings as a result of that injury. The result was a $140,000 award to Doucette. The Court acknowledged that while the result may be unfair to the insurance company, it had no authority to void the penalty.