Advocacy Corner

Work Search – What You Need to Know

If you are an injured worker who is not totally disabled (you have some capacity to work), it is important to know that in a contested claim, you must perform a work search in order to receive the full amount of workers’ compensation benefits owed to you.

What exactly does this mean?  This means that if your case goes to a hearing, in order for the Administrative Law Judge to award you the full amount of weekly compensation, you must prove to the judge that as a result of your work injury, there is no work available to you within your community.

To do this, the judge will evaluate your work search based on a number of established factors – these factors include, but are not limited to:

1) The number of places you apply – a good rule of thumb (even in this economy) is 10-15 applications per week.

2) The geographic area of your search – if you have transportation, your work search should include employment opportunities outside of your town.  If you have no restrictions on sitting, you need to be willing to drive 30-45 minutes each way.

3) Whether you applied in good faith (you’re actually trying to get hired) – the judge wants to see that you have spent time looking for work that you can do (that your effort was real).

4) Whether you applied at places that are actually hiring – it is far better to apply for positions that are either advertised or known to be hiring.  For the purposes of the work search, it is not helpful to apply with employers who are not hiring.  We recommend using online resources where job listings are posted.

5) Whether you applied for jobs that are appropriate given your education and work history – it is important for you to apply for jobs that you have reason or hope to believe that you could get with your background.

6) Whether you applied for jobs that are appropriate given your work restrictions – to do this, find out what the physical requirements of the job that you are considering.  If the job’s physical requirements are outside of your work restrictions, ask the employer if the job can be modified to accommodate your work restrictions. 

What happens if you do not perform a work search?  The judge will determine how much money they think you can earn each week with your injury and will then subtract that amount from the full amount of weekly compensation.

The work search process is often the most litigated part of a workers’ compensation claim. You should not hesitate to contact an attorney if you have work capacity, because failure to perform a good faith work search can significantly affect your weekly benefits. Please give us a call at 207-874-4771.

Social Security Retirement and Workers’ Compensation Benefits

It’s common for a disabled worker to receive both weekly benefits under the workers’ compensation system (a state benefit), in addition to social security disability benefits (a federal benefit). While you can receive both benefits simultaneously, the social security disability benefits are reduced while receiving workers’ compensation.

Under 39-A M.R.S. § 221, when you receive “old-age” social security benefits at the same time as receiving weekly benefits under the workers’ compensation system, the workers’ compensation insurer can reduce the amount paid to you by fifty percent of the amount you receive for social security retirement benefits. The insurer, however, is not allowed to reduce weekly benefits if you were receiving social security retirement benefits prior to the work injury. The insurer also cannot reduce weekly benefits for this reason if your spouse receives social security retirement benefits.

For example, a worker receives $500.00 per week from the workers’ compensation insurer. The worker also begins receiving $1,000.00 per month in social security retirement benefits, or $250.00 per week. The workers’ compensation insurer can reduce the weekly benefits by $125.00 per week (50% of $250.00) when the worker begins receiving retirement benefits.

While you are eligible to receive social security retirement benefits at 62 years of age, there are good reasons to delay receipt of those benefits. First, your retirement benefit will increase the longer you wait to receive the benefits. Additionally, if you delay receipt of retirement benefits, you can continue to receive your normal weekly benefits under the State Act.

This offset rule applies to cases under the Maine Workers’ Compensation Act, and not Longshore. If you live in another state, there may be different rules regarding social security retirement benefits and receipt of weekly workers’ compensation benefits. If you have questions about the effect of retirement benefits on your weekly benefits, don’t hesitate to call us.

Effects of COVID-19 on Maine Workers’ Compensation Claims

Previously, we’ve touched on the types of workers’ compensation cases that have already or will arise because of COVID-19. These include COVID-19 diagnoses, injuries because of poor ergonomic at-home workstations, and mental stress claims for first responders. Just as any other workers’ compensation claim, however, if the insurer denies coverage, the case will enter the same workers’ compensation system as other cases. First a mediation occurs, and then if no resolution is reached at mediation, the parties are scheduled for a hearing before an Administrative Law Judge. The Workers’ Compensation Board experiences the same administrative delays as other court systems, so even before COVID-19, it was not uncommon to wait several months for a hearing to be scheduled. No special treatment or “fast-track” option has been created to address COVID-19 cases any faster than other workers’ compensation cases.

Another hidden COVID-related issue is the change in how the Workers’ Compensation Board is conducting fact-finding. Unfortunately, like many other offices in Maine, the Workers’ Compensation Board offices have been closed to the public for several months to protect the health of its employees. Hearings and mediations are no longer conducted in-person and instead, are either conducted telephonically or using video conferencing mechanisms. In-person hearings are not likely to occur for several more months. Even when those are conducted in-person, it is hard to imagine a situation where witnesses and other parties are not wearing masks during a hearing. From my perspective, as an attorney who represents employees, the hearing is usually a great opportunity for the Administrative Law Judge to judge my client’s credibility and in many cases, assess how “employable” they are. That becomes much more difficult, if not impossible, to accomplish if my client is wearing a mask. Over the past few months with mask-wearing becoming more and more commonplace – if not required – we now seem to realize how much we communicate with more than just words, but also facial expressions and intonation. For example, I’ve often caught myself telling people that “I’m smiling” as I speak with them because my mask hides my expression.

In cases where a client is not receiving benefits, the difficult choice must be made to whether to ask for a continuance to allow for an in-person hearing thereby further delaying the process, or proceeding with a telephonic or video hearing and accounting for a less than personable experience. It is certainly a decision that none of us anticipated, but it appears to be a new reality that we will be grappling with for the foreseeable future.

Injured at Work – Where Can I Get Medical Treatment (under the Maine Workers’ Compensation Act of 1992)

If you’ve been injured at work – where your injury occurred within the course of your employment, you are entitled to reasonable and proper medical care, paid for by your employer.  Depending on your injury, reasonable and proper medical care could include a trip to the hospital, a visit to the doctor’s office, surgical care, and nursing services.  Reasonable and proper medical care could also include medicines prescribed related to your work injury, mechanical or surgical aids, and a vast array of other therapeutic treatments.

Initially, your employer has the right to select a health care provider to treat your injury (so long as they are authorized to practice as such under the laws of Maine).  But after 10 days from the inception of health care related to your work injury, you have the right to select a different health care provider – one of your choice (please note that you may seek medical care from your preferred provider at any point, but your employer may end up disputing the payment of such treatment if it occurred outside the rules’ applicable time frames).  

Your employer has a right to object to you seeing a particular health care provider.  If they do so, your employer must file a petition with the Maine Workers’ Compensation Board (the Board) objecting to the named health care provider that you selected, and included in such they must state the reasons for their objection.  If this occurs, the Board will first hold a mediation between you and your employer on this issue.  If not resolved during mediation, the Board will schedule a prompt hearing on the issue, and an Administrative Law Judge will decide whether your employer has shown cause on why you shouldn’t get medical care from your medical provider of choice.  If the Judge rules in your favor, they will order your employer to pay for treatment received from the particular health care provider at issue.  If the Judge rules in the favor of your employer, the Judge will order that you are responsible to pay for treatment received from the particular health care provider at issue from the date the Judge’s order is mailed.

It is important to note that once you receive treatment from a health care provider of your choice, you may not change health care providers more than once without approval from your employer or the Board.  

Lastly, the rules regarding doctor choice do not limit your right to be treated by a specialist when a referral is made by your health care provider.  But it is important to note that once you have begun treatment with a certain type of specialist, you may not seek treatment from a different specialist in the same specialty without prior approval from your employer or the Board.

The above rights do not apply if your work injury claim arises under the Longshore Act.  If you’ve been injured at work and have questions about what rights you have regarding medical treatment, or are wondering what rights are applicable in your situation (including questions about the Longshore Act), please do not hesitate to contact us.    

Worker’s Health and COVID-19​

In the past several months, we have been faced with perhaps the greatest global health crisis that we will see in our lifetime. COVID-19 has drastically changed nearly every aspect of our lives. One of the biggest changes has been on the employment front. Some workers transitioned to working remotely from home. Others were directed by their employers to stagger their work schedules. Essential workers such as grocery store employees and health care workers have not been so lucky. These front line workers have been called upon to provide essential services. As of April 15, the Maine Workers’ Compensation Board had seen over 200 filed claims asserting rights under the Act. We are likely to see at least three categories of injury claims as a result of COVID-19: (1) COVID-19 diagnoses; (2) orthopedic or soft-tissue injuries as a result of poor ergonomic at-home workstations; and (3) mental stress claims. 

Some states have taken action to create a presumption that an employee’s COVID-19 diagnosis arose out of and in the course of employment for the purpose of obtaining workers’ compensation benefits. Maine workers, as of today, do not have such a benefit. Therefore, it is imperative for Maine workers who are diagnosed with COVID-19 to confirm the diagnosis with a medical professional through testing. Once confirmed, the worker should immediately contact an attorney for assistance in processing the claim. Only after confirmed testing can the process be started to gather evidence that the worker was exposed to the illness through their employment. 

Besides the obvious work-related injury of a COVID-19 diagnosis, we’re likely to see an increase in claims filed as a result of poor ergonomic conditions as many workers cobble together workstations at their dining room tables and couches. Most workers won’t have the benefit of an ergonomic evaluation in light of COVID-19 circumstances. Workers should not hesitate to see a physician if they are experiencing symptoms related to poor ergonomic conditions. 

Finally, the COVID-19 crisis has created stress for all individuals, but especially healthcare workers who have been on the front lines of caring for people who have contracted the disease. Please know first responders who are diagnosed with post-traumatic stress disorder are entitled to a rebuttable presumption in Maine that their diagnosis arose out of and in the course of employment – clearing a path towards workers’ compensation benefits. 

Whether you have suffered an injury as a result of COVID-19 or not, we are likely to see the effects of the pandemic continue to impact workers in the months and years ahead.