Category: Workers’ Compensation

It had been determined by the Board that the employee sustained a gradual occupational injury to his right elbow on October 29, 2000.  Several years later the employee filed a Petition for Award alleging a second gradual injury to the same portion of the body occurring on May 8, 2009.  There was conflicting medical evidence...

When parties reach agreement at mediation and the issues agreed to are reflected in the record, the record is fully binding upon the parties and has the effect of a final Board determination.  However, when no agreements are reached and the mediation is considered unresolved, the record itself has no res judicata effect. In Karimova...

In its final decision of 2017 an en banc panel of the Appellate Division consisting of seven ALJs unanimously denied an appeal brought by an employee in a case in which a claim of a gradual mental injury had been denied.  In Henderson v. Town of Winslow, Me. W.C.B. No. 17-46 (App. Div. 2017), the...

In its second workers’ compensation opinion of the year, the Law Court has addressed determination of employment status in a unique factual context.  In Huff v. Regional Transportation Program, 2017 ME 229 (December 12, 2017), the petitioner volunteered as a driver for a non-profit agency which provided transportation services to disabled and low-income clients.  At...

In Bailey v. City of Lewiston, 2017 ME 160, 168 A.3d 762, the Law Court ruled that after a PI determination has been made by the Board, an employer cannot seek to lower the assessment in a subsequent proceeding based upon a change in medical condition.  However, in its opinion the Court in the broadest...

Shortly after the Law Court’s landmark decision in Bailey v. City of Lewiston, 2017 ME 160 (July 20, 2017), the Appellate Division has had an opportunity to apply the holding of that decision in a claim involving an attempt to revise a prior PI determination.  The Bailey decision is extremely significant, as the Court held...

It has long been recognized that when the amount of entitlement to benefits for incapacity has been established by Board decree, that determination may later be revised based upon evidence of a change of economic circumstances.  A recent decision of the Appellate Division addressed the issue of whether work search evidence, without more, can be...

Incapacity benefits are based upon the pre-injury average weekly wage, which in most cases is the average of the employee’s earnings received during the 52-week period preceding the injury. In the vast majority of cases earnings received during this period are simply averaged together and the resulting figure is deemed to reflect what the employee’s...

Section 214(1)(A) provides employers with a strong mechanism for controlling costs in compensation claims.  Specifically, if an employer extends an offer of reasonable employment to an injured employee who is out of work due to an injury, and if the employee refuses that offer without good cause, the employee “is no longer entitled to any...

It has long been established that when an issue is litigated to a final conclusion before the Workers’ Compensation Board, the matter may not be re-litigated in a subsequent proceeding. This doctrine is known as res judicata, which literally means “thing adjudged”, and although the concept arose in courts of general jurisdiction it has been...

In Richards v. D.P. Industries, Inc., Me. W.C.B. No. 17-24 (App. Div. 2017), the employee sustained a compensable injury in 2001 which resulted in significant continuing work restrictions. Ultimately a vocational rehabilitation plan was prepared by a representative of the Department of Labor’s Division of Rehabilitation Services in November 2014. The employer did not agree...

When a determination of incapacity has been made by decree, either party may file a Petition for Review to establish a different level of entitlement, but to do so the moving party must show a change of circumstances since the prior decree either through comparative medical evidence or demonstrating a change in economic circumstances. In...