An Act To Amend the Maine Workers' Compensation Act of 1992
Maine Legislature, Session 126, LD 0001
Committee: Labor, Commerce, Research and Economic Development
Amends: 39-A MRSA §102, 39-A MRSA §105, 39-A MRSA §217, 39-A MRSA §218, 39-A MRSA §303, 39-A MRSA §318, 39-A MRSA §320, 39-A MRSA §321-B, 39-A MRSA §324

Legislative Document 
No. 1 
S.P. 9 
In Senate, January 8, 2013 
An Act To Amend the Maine Workers' Compensation Act of 1992 
Reported by Senator John L. Patrick for the Workers' Compensation Board pursuant to the 
Maine Revised Statutes, Title 39-A, section 152, subsection 11. 
Reference to the Committee on Labor, Commerce, Research and Economic Development 
suggested and ordered printed pursuant to Joint Rule 218. 
DAREK M. GRANT 
Secretary of the Senate 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  39-A MRSA §102, sub-§1, as enacted by PL 1991, c. 885, Pt. A, §8 and 
affected by §§9 to 11, is amended to read: 
1.  After-tax average weekly wage.  "After-tax average weekly wage" means 
average weekly wage, as defined in subsection 4, reduced by the prorated weekly amount 
that would have been paid under the Federal Insurance Contributions Act, 26 United 
States Code, Sections 3101 to 3126, state income tax and federal income tax calculated 
on an annual basis, using as the number of exemptions the disabled employee's 
dependents plus the employee, and without excess itemized deductions.  Effective 
January 1, 1993 and each January 1st thereafter until and including January 1, 2012, the 
applicable federal and state laws in effect on the preceding July 1st are used in 
determining the after-tax weekly wage.  Each December 1st until and including 
December 1, 2011, the board shall publish tables of the average weekly wage and 80% of 
after-tax average weekly wage that will take effect on the following January 1st.  These 
tables are conclusive for the purpose of converting an average weekly wage into 80% of 
after-tax average weekly wage. 
Sec. 2.  39-A MRSA §102, sub-§8, ¶A, as enacted by PL 1991, c. 885, Pt. A, §8 
and affected by §§9 to 11, is repealed and the following enacted in its place: 
A.  A spouse of the deceased employee who was living with the employee at the time 
of the employee's death, who was living apart from the employee for a justifiable 
cause or because the spouse had been deserted by the employee or who was actually 
dependent upon the employee at the time of the injury.  A spouse living apart from 
the employee must produce a court order or other competent evidence as to 
separation and actual dependency; and 
Sec. 3.  39-A MRSA §102, sub-§8, ¶B, as enacted by PL 1991, c. 885, Pt. A, §8 
and affected by §§9 to 11, is repealed. 
Sec. 4.  39-A MRSA §105, sub-§3, as amended by PL 2009, c. 569, §1, is further 
amended to read: 
3.  Predetermination submission.  A party may submit, on forms approved by the 
board, a request for predetermination regarding the status of a person or job description as 
an employee, construction subcontractor, as defined in section 105-A, subsection 1, 
paragraph B, or independent contractor.  The status requested by a party request is 
deemed to have been approved if the board does not deny or take other appropriate action 
on the submission within 14 30 days. 
Sec. 5.  39-A MRSA §105, sub-§4, as amended by PL 1993, c. 120, §1 and 
affected by §6, is further amended to read: 
4.  Hearing.  A hearing, if requested by a party within 10 days of the board's decision 
on a petition, must be conducted under the Maine Administrative Procedure Act.  The 
board's ruling under this subsection is final and is not subject to judicial review. 
Sec. 6.  39-A MRSA §217, sub-§1, as enacted by PL 1991, c. 885, Pt. A, §8 and 
affected by §§9 to 11, is amended to read: 
1.  Services.  If employment rehabilitation services are not voluntarily offered and 
accepted, the board on its own motion or upon application of the employee, carrier or 
employer, after affording the parties an opportunity to be heard, may refer the employee 
to a board-approved facility for evaluation of the need for and kind of service, treatment 
or training necessary and appropriate to return the employee to suitable employment.  The 
board's determination under this subsection is final. 
Sec. 7.  39-A MRSA §218, sub-§3, as enacted by PL 1991, c. 885, Pt. A, §8 and 
affected by §§9 to 11, is amended to read: 
3.  Time period; discrimination prohibited.  The employer's obligation to reinstate 
the employee continues until one year 2 years, or 3 years if the employer has over 200 
employees, after the date of the injury.  An employer who reinstates an employee under 
this section may not subsequently discriminate against that employee in any employment 
decision, including decisions related to tenure, promotion, transfer or reemployment 
following a layoff, because of the employee's assertion of a claim or right under this Act.  
Nothing in this subsection may be construed to limit any protection offered to an 
employee by section 353. 
Sec. 8.  39-A MRSA §303, as amended by PL 2003, c. 471, §1, 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.  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. 
Sec. 9.  39-A MRSA §318, last ¶, as enacted by PL 1991, c. 885, Pt. A, §8 and 
affected by §§9 to 11, is amended to read: 
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 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 docketed in filed with the Law Court division and thereafter, while 
the appeal is pending, may be corrected with leave of the Law Court division. 
Sec. 10.  39-A MRSA §320, 2nd ¶, as amended by PL 2011, c. 647, §19, is 
further amended to read: 
If a hearing officer asks for review, the time for appeal to the Appellate Division 
pursuant to section 321-B 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, 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. 
Sec. 11.  39-A MRSA §320, 3rd ¶, as amended by PL 2003, c. 608, §13, is 
further amended to read: 
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 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 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, reversing remanding, vacating or modifying the 
hearing officer'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 stands and is subject to direct appellate 
review in the same manner as if the board had not voted to review the decision. 
Sec. 12.  39-A MRSA §321-B, sub-§1, ¶B, as enacted by PL 2011, c. 647, §20, 
is amended to read: 
B.  At the time of filing an appeal under this section, the appellant shall file with the 
division a copy of the decision, order or agreement appealed.  The failure of an 
appellant who timely files an appeal in accordance with paragraph A to provide a 
copy of the decision, order or agreement does not affect the jurisdiction of the 
division to determine the appeal on its merits unless the appellee shows substantial 
prejudice from that failure. 
Sec. 13.  39-A MRSA §321-B, sub-§3, as enacted by PL 2011, c. 647, §20, is 
amended to read: 
3.  Action.  The division, after due consideration, may reverse affirm, vacate, remand 
or modify a decree of a hearing officer and shall issue a written decision.  The written 
decision of the division must be filed with the board and mailed to the parties or their 
counsel. 
Sec. 14.  39-A MRSA §324, sub-§1, as amended by PL 2011, c. 361, §1, is 
further amended to read: 
1.  Order or decision.  The employer or insurance carrier shall make compensation 
payments within 10 days after the receipt of notice of an approved agreement for payment 
of compensation or within 10 days after any order or decision of the board awarding 
compensation.  If the board enters a decision awarding compensation, and a motion for 
findings of fact and conclusions of law is filed with the hearing officer or an appeal is 
filed with the division pursuant to section 321-B or the Law Court pursuant to section 
322, payments may not be suspended while the motion for findings of fact and 
conclusions of law or appeal is pending.  The employer or insurer may recover from an 
employee payments made pending a motion for findings of fact and conclusions of law or 
appeal to the division or the Law Court if and to the extent that the hearing officer, 
division or the Law Court has decided that the employee was not entitled to the 
compensation paid. The board has full jurisdiction to determine the amount of 
overpayment, if any, and the amount and schedule of repayment, if any. The board, in 
determining whether or not repayment should be made and the extent and schedule of 
repayment, shall consider the financial situation of the employee and the employee's 
family and may not order repayment that would work hardship or injustice.  The board 
shall notify the Commissioner of Health and Human Services within 10 days after the 
receipt of notice of an approved agreement for payment of compensation or within 10 
days after any order or decision of the board awarding compensation identifying the 
employee who is to receive the compensation.  For purposes of this subsection, 
"employer or insurance carrier" includes the Maine Insurance Guaranty Association 
under Title 24-A, chapter 57, subchapter 3. 
Sec. 15.  Application.  Notwithstanding the Maine Revised Statutes, Title 1, 
section 302, those sections of this Act that amend Title 39-A, sections 318, 320 and 
321-B apply to actions and proceedings that are pending on the effective date of this Act. 
SUMMARY 
This bill: 
1.  Clarifies that the board will no longer publish average weekly wage tables after 
December 1, 2011.  Publication of the tables is no longer necessary because, pursuant to 
Public Law 2011, chapter 647, compensation for employees injured on and after January 
1, 2013 is based on 2/3 of gross average weekly wage as opposed to 80% of after-tax 
average weekly wage; 
2.  Makes the presumption of dependency consistent for spouses; 
3.  Extends the time within which the board must take action on a predetermination 
request from 14 to 30 days; 
4.  Establishes that review of a predetermination request is final within the board; 
5.  Establishes that a request for evaluation of the need for employment rehabilitation 
is not subject to review outside of the agency; 
6.  Extends to 2 years the period within which an employee can petition for 
reinstatement to an employer with 200 or fewer employees; 
7.  Establishes that an employer is required to reimburse its insurer if the employer is 
responsible for the late filing of a first report of injury; 
8.  Clarifies procedures relating to the Appellate Division within the Workers' 
Compensation Board by: 
A.  Providing that clerical mistakes in decrees may be corrected when a matter is 
pending before the Appellate Division; 
B.  Specifying that an appellant must file a copy of the hearing officer's decision and 
not an order or agreement; and 
C.  Specifying that the Appellate Division may affirm, vacate or remand a decree of a 
hearing officer; 
9.  Clarifies procedures relating to the review of a decision by the board pursuant to 
the Maine Revised Statutes, Title 39-A, section 320 by: 
A.  Stipulating that appeals of decisions issued by the board pursuant to section 320 
must be filed with the Law Court, not the Appellate Division; 
B.  Providing that a hearing officer decree can be appealed to the Appellate Division 
if the board declines review; and 
C.  Permitting the board to remand a hearing officer decree; and 
10.  Clarifies that benefits must be paid while an appeal is pending before the 
Appellate Division and that benefits paid while a case is pending before the Appellate 
Division are subject to repayment in the same manner as when the Law Court decides an 
employee is not entitled to compensation.