2010 Legislative Activity

LD 1528 (An Act An Act To Enhance Cooperation between the Workers' Compensation Board's Abuse Investigation Unit and Other State Agencies and To Ensure Equal Application of the Requirement To Obtain Coverage)

              This  bill was submitted by the Maine Workers’ Compensation Board.  It allows the Abuse Investigation Unit to share information with other state agencies so that they can enforce their laws, which grew out of the Employee Misclassification Task Force.  It also has a provision which places Limited Liability Companies (LLC’s) on an equal footing with respect to corporations in terms of being subjected to penalties for not having appropriate coverage.

L.D. 1529 (An Act To Amend the Maine Workers' Compensation Act of 1992 Regarding Coordination of Benefits) 

              This  bill was submitted by the Workers’ Compensation Board and has been signed into law.  It deals with the coordination of life insurance and workers’ compensation benefits in the Nichols case. It was passed, as amended, and limits it to situations where the benefit resulted from collectively bargaining. 

LD 1566 (An Act Relating to the Membership of the Workers' Compensation Board)

              This bill morphed from an attempt to define the term service provider, which could have eliminated most qualified candidates for Management positions on the WCB, to an elimination of term limits for board members of the WCB.  Language to resolve any conflicts of interest already exists in the statute.  When the bill went to the Senate, it  retained  the conflict of interest language,  but the Senate added an amendment which eliminated the maximum number of terms a board member can serve.  There was strong objection that there was never an opportunity for public comment.   By the time it was discussed at the WCB, it was a fait accompli. The Governor can continue to appoint the same people indefinitely as long as the names are submitted by the Maine Chamber or AFl/CIO.

LD 1565 (An Act To Amend the Laws Governing the Knowing Misclassification of Construction Workers)

              LD 1565 deals with Stop Work Orders by the Workers’ Compensation Board.   As originally drafted, the  Stop Work Order process would occur for those individuals who “knowingly” failed to obtain coverage and/or misrepresented who they are covering.   It authorized the WCB Executive Director to issue such Orders, after investigation. Once issued, the Stop Work Order would give the affected party 10 days to file an appeal and, if one were filed within 48 hours, the matter would be scheduled for a hearing.  Moreover, that employer  would be precluded from working on any State projects for a period of three years. 

              There was concern that the original bill did not allow for sufficient due process andthat the improved predetermination process would provide for adequate enforcement.   The language changed so that   the WCB would need to give 48 hours notice to the potentially-affected parties that they are going to be seeking a Stop Work Order and then there would be a hearing before the Board at which point there would be no need for an appeal. At one point, there was language broadening the WCB  power to issue Stop Work Order to all businesses using any kind of contractor, but that was pulled back to just applying to the Construction Industry.  The debarment language was dropped.

              The bill includes a fiscal note for an additional Auditor and Management Analyst for the MAE program for the fiscal note of $167,000.  For the time being, this money comes from the WCB Reserves, so it “doesn’t cost anything.”

              Employers who have been “going bare” or not reporting their employees properly will have 48 hours to obtain a policy and avoid a Stop Work Order even though they may still be subject to penalties for not having had prior coverage.

L.D.  1815, (An Act To Clarify the Construction Subcontractor Status of the Maine Workers' Compensation Act of 1992)

              This bill  was drafted as Emergency Legislation to resolve problems that resulted from the Predetermination Bill (LD 1456) which had been passed in the 1st Session.  Legislators had constituents up in arms over the extensive form and burdensome requirements  that had been developed by the WCB to satisfy the numerous facets of LD 1456.  LD 1815 made the predetermination process portable and annual ( i.e. the same determination can be taken to all contractors for one year).   The bill does not require a worker, an employer or workers' compensation insurance carrier to request predetermination. The bill directs the Workers’ Compensation Board to update (simplify) the predetermination application, within existing resources, and submit it for review by the Joint Standing Committee on Labor. The bill allocates $21,769 to enhance enforcement of laws prohibiting the misclassification of workers by the Workers' Compensation Board Abuse Investigation Unit for a range change from 24 to 27 for 2 Workers' Compensation Specialist positions and reclassifying one Secretary Legal range 13 position to a Paralegal range 20 position.  The funds come from the WCB Reserve Account. It was enacted on March 25, 2010.

              Note: there is an exception being considered a Construction Contractor if an individual owns and operates a vehicle that weighs 7,000 pounds or more and is hired to use that 7,000 pound vehicle by the hiring agent. 

2009 LD’s

LD 27 An Act To Amend the Definition of Employment for Purposes of Unemployment Compensation

SUMMARY

Under current law, an employment relationship exists and unemployment insurance coverage is required unless all three parts of the so-called “ABC test" can be demonstrated. This bill limits application of the ABC test to situations in which the individual has performed services for a total of no less than 16 hours.

Work Session February 5, 2009:  ONTP

The WCCC took no position on this bill, but  the definition of employment relates to workers’ compensation.

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LD 176 An Act To Equitably Adjust the Workers’ Compensation Board’s Assessment (Presented by Senator BARTLETT of Cumberland. Cosponsored by Representative TUTTLE of Sanford and Senators GERZOFSKY of Cumberland, JACKSON of Aroostook, MILLS P of Somerset, President MITCHELL E of Kennebec, Representatives CLARK H of Millinocket, DRISCOLL of Westbrook, WATSON of Bath.)

Be it enacted by the People of the State of Maine as follows:

 SUMMARY

This bill requires the Workers’ Compensation Board to use collections that exceed the maximum assessment by more than 10% to reduce the assessment on insured employers.

Public Hearing :  March 12, 2009

Work Session:  March 23 1:00 PM  voted Ought to Pass

Passed to be enacted 5/5/09

The WCCC supported this bill.

LD 322 An Act to Clarify the Prohibition on Pyament for Health Care Facility Mistakes or Preventable Adverse Events. (Presented by Representative CROCKETT P of Augusta. Cosponsored by Senator BOWMAN of York and Senators RAYE of Washington, SIMPSON of Androscoggin, Representatives BLANCHARD of Old Town, JONES of Mount Vernon, MILLER of Somerville, PERRY A of Calais, PRIEST of Brunswick, WHEELER of Kittery)

This bill clarifies that an employer, as defined under the Maine Workers' Compensation Act of 1992, may not be charged by a health care facility to correct a mistake or preventable adverse event caused by that health care facility.

Public Hearing March 3, 2009  Work Session March 4, 2009  U-OTP

The WCCC testified in favor of this bill.

PL 2009 Ch 31 as of 4/16/09

http://www.mainelegislature.org/legis/bills/bills_124th/billtexts/HP025801.asp

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LD 578: An Act Regarding Repayment of Subrogation or Lien Claims in Workers’ Compensation Actions  (Rep. Watson)

http://www.mainelegislature.org/legis/bills/bills_124th/billtexts/HP041601.asp

Sec. 1. 39-A MRSA §107,   as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended by adding after the 3rd paragraph a new paragraph to read:

When recovery from a 3rd party is compromised or limited such that repayment of any lien or subrogation interest would constitute a hardship on the employee, that lien or subrogation interest must be reduced in the proportion that the settlement or judgment bears to the evaluation of the employee’s total cognizable damages at law. Any such reduction must be based on a determination that the reduction would be equitable.

SUMMARY

This bill amends the laws governing workers’ compensation to provide for the reduction of any lien or subrogation interest when recovery from a 3rd party is so limited that repayment of the lien or subrogation interest would constitute a hardship on the employee.

Public Hearing :  March 12, 2009

Work Session:  March 23 1:00 PM  voted Ought Not to Pass

The WCCC is concerned about this bill.

LD 579 An Act To Provide Wraparound Medical Coverage in the Workers’ Compensation System (Rep Elizabeth Miller of Somerville) )

CONCEPT DRAFT SUMMARY

This bill is a concept draft pursuant to Joint Rule 208.

This bill proposes to establish an integrated health insurance program that incorporates health coverage provided by Dirigo Health into the workers’ compensation system.

Public Hearing :  March 12, 2009

Work Session:  March 23 1:00 PM  voted Ought Not to Pass

WCCC :  Until the bill is developed, there are many unanswered questions. 

LD 617: An Act To Amend the Maine Workers’ Compensation Act of 1992 To Remove Independent Medical Examiners  (Presented by Senator GERZOFSKY of Cumberland. Cosponsored by Speaker PINGREE of North Haven and Senators BARTLETT of Cumberland, JACKSON of Aroostook, MARRACHE of Kennebec, Representative BERRY of Bowdoinham.http://www.mainelegislature.org/legis/bills/bills_124th/billtexts/SP023201.asp

This bill removes the independent medical examiner system from the Maine Workers’ Compensation Act of 1992.

Public Hearing :  March 12, 2009

Work Session:  March 23 1:00 PM  TABLED

4 /15/09   Senate   Pursuant to Joint Rule 310.3 Placed in Legislative Files (DEAD)

The WCCC:  the IME system should be improved but not eliminated.

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LD 620: An Act To Ensure the Workers' Compensation Board's Regulatory Oversight of the Maine Insurance Guaranty Association  (Presented by Senator BARTLETT of Cumberland. Cosponsored by Representative TUTTLE of Sanford and Senators BRYANT B of Oxford, JACKSON of Aroostook, President MITCHELL E of Kennebec, Representatives BUTTERFIELD of Bangor, DRISCOLL of Westbrook, Speaker PINGREE of North Haven.)http://www.mainelegislature.org/legis/bills/bills_124th/billtexts/SP023601.asp

This bill ensures that the Maine Insurance Guaranty Association is responsible for all penalties under the Maine Workers’ Compensation Act of 1992 and any rules adopted pursuant to the Maine Workers’ Compensation Act of 1992 with the exception of the penalty under the Maine Revised Statutes, Title 39-A, section 359, subsection 2.

Public Hearing :  March 12, 2009

Work Session:  March 23 1:00 PM  Tabled to April 6, 2009 when Seantor Mills suggested an amendment  that improved the bill.  Voted Ought to Pass pending review of the language.

The WCCC supported MIGA’s concerns about suggestions that were omitted in the language of the bill.

Apr 21, 2009, OTP-AM

The amendment specifies that the Maine Insurance Guaranty Association, or "association," must employ Maine licensed adjusters in the handling of claims. The amendment prohibits the imposition of penalties if the association is unable, in the exercise of reasonable diligence, to obtain the records of an insolvent insurer or was prevented from complying with the Maine Workers' Compensation Act of 1992 through no fault of its own. The amendment also makes clear that any acts or omissions by the association prior to the effective date of this legislation are not governed by the provisions of this legislation.

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LD 621 An Act Allowing Workers' Compensation Benefits for Firefighters Who Contract Cancer (Presented by Senator BARTLETT of Cumberland. Cosponsored bySpeaker PINGREE of North Haven and Senators COURTNEY of York, JACKSON of Aroostook, MCCORMICK of Kennebec, Representatives CAMPBELL of Newfield, FLETCHER of Winslow, LAJOIE of Lewiston, PRATT of Eddington, RUSSELL of Portland.)

This bill creates a rebuttable presumption under the Maine Workers' Compensation Act of 1992 that a firefighter who contracts cancer contracted the disease in the course of employment as a firefighter if the firefighter, during the time of that firefighter's employment, received a test for cancer that failed to detect the cancer. This bill makes the last employer for whom the firefighter worked at the time of the last exposure to the risk of cancer and that employer's insurer liable for the cancer.

 Public Hearing:  March 19, 2009

Work Session:  April 6, 2009  Tabled to allow Sen. Mills and Rep. Cushing to draft an amendment.

VOTED, 4/28/09 Majority OTP-AM)

              There is a fiscal note.

Final amendment that was adopted by the Senate 5/12 and the House 5/19:  : This amendment amends the committee amendment. Like the bill as amended by Committee Amendment "A," this amendment maintains the rebuttable presumption under the Maine Workers' Compensation Act of 1992 that a firefighter who contracts cancer contracted the disease in the course of employment as a firefighter if the firefighter, during the time of that firefighter's employment, received a test for cancer that failed to detect cancer. Unlike the bill as amended by Committee Amendment "A," this amendment limits the definition of "cancer" and adds a definition of "test" to the list of definitions and specifies that the firefighter must have been a firefighter for at least 10 years and have been directly exposed to heat, smoke and radiation in at least 200 fires, must show that the diagnosed cancer is not prevalent among the firefighter's parents, grandparents and siblings and must show that the firefighter has not had substantial lifetime exposure to carcinogens associated with the cancer outside of firefighting.

The amendment clarifies that substantial exposure to the risk of cancer arises from having fought at least 30 fires requiring the firefighter's direct exposure to heat, smoke and radiation. The amendment reduces the time limit in which the presumption arises from 20 years from the firefighter's last active employment as a firefighter to 10 years.

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LD 639:  An Act Regarding the Computation of Workers' Compensation Rates Based on Past Claims

SUMMARY

Under current law, an employer is placed in a high-risk pool if the employer has at least 2 lost-time claims, each greater than $10,000 of incurred loss during the previous 3-year experience rating period. This bill increases the incurred loss amount from $10,000 to $40,000.

Public Hearing April 23, 2009

Work Session May 4, 2009  ONTP

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LD 946:  An Act to Reverse the Effect of Grant. v. Central Maine Power, Inc. on Workers’ Compensation: sponsored by Representative Andre Cushing

http://www.mainelegislature.org/legis/bills/bills_124th/billtexts/HP064901.asp

The purpose of this bill is to address the issue identified in Grant v. Central Maine Power, Inc., 2003 ME 96, 828 A.2d 800 by amending the Maine Workers' Compensation Act of 1992 to permit an employer to reduce weekly benefits by the amount of earnings paid by an employer that is not liable or responsible for paying the weekly benefits.

The WCCC supports this bill.

Public Hearing April 23, 2009

Work Session:  May 4, 2009, May 7 and May13.  OTP –A (employer must have proof of earnings, and, if the job doesn’t work out, indemnity payments resume.)

The Labor Committee turned to interested parties to work through this bill in conjunction with LD 1384.  The final products are satisfactory.

This amendment clarifies that earnings may be discontinued or reduced by the actual substantiated amount paid to the employee during the 21-day period if the employer files the evidence of payment with the Workers' Compensation Board for the time during which an employee was actually paid by the employer.

Adopted by the House on May 26, and by the Senate May 28.  Passed to be enacted June 2, 2009.

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LD 1004: "An Act Relating to Self-insurance" Sponsored By: Representative RICHARDSON of Warren; Cosponsored By: Representative BECK of Waterville; Senator BOWMAN of York; Representative FOSSEL of Alna ; Representative GOODE of Bangor; Senator McCORMICK of Kennebec

http://www.mainelegislature.org/legis/bills/bills_124th/billtexts/HP069201.asp

This bill amends the laws relating to group self-insurance reinsurance accounts to clarify that individual self-insurers authorized under Maine law and group self-insurers authorized under the laws of other states may participate in the account.  This relates to re-insurance.

Public Hearing Insurance and Financial Services:  March 31, 2009

Work Session:  April 7, 2009 (Interested parties have met with the governor, and he will not oppose this bill.)  OTP-A

The amendment makes changes to the laws relating to group self-insurance reinsurance accounts to:

1. Authorize individual self-insurers authorized under Maine law to participate in an account; and

2. Authorize the formation of a protected cell mechanism under which group self-insurers authorized under the laws of other states may participate in an account, similar to the structure currently provided for in the National Association of Insurance Commissioners Protected Cell Company Model Act and in the Maine Revised Statutes, Title 24-A, section 784-A.

The amendment also adds an appropriations and allocations section.

Passed to be enacted 5/26/09

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LD 1109:   An Act to Prohibit the Reduction of Benefits under the Maine Workers’ Compensation Act of 1992 for Certain Prior Injuries.

http://www.mainelegislature.org/legis/bills/bills_124th/billtexts/HP076401.asp

This bill is in response to the Maine Supreme Judicial Court's decision in Legassie v. Securitas, Inc., 2008 ME 43, 944 A.2d 495. The decision in that case authorized a reduction to an injured worker's wage replacement and medical benefits because of a previously settled workers' compensation claim. This bill specifies that reducing an injured worker's benefits because of a prior settled injury is direct apportionment against the employee and is prohibited.

This bill also clarifies the applicability of the Maine Supreme Judicial Court's decision in Cust v. University of Maine, 2001 ME 29, 766 A.2d 566. This bill specifies that when an injured worker's permanent impairment rating under the Maine Revised Statutes, Title 39-A, section 213, subsection 1-A is above the applicable threshold on account of a single injury or the sum of multiple injuries, all of the worker's weekly benefits under the Maine Workers' Compensation Act of 1992 are exempt from the durational limit of Title 39-A, section 213, subsection 1.

[The difference between LD 1109 and LD 1384 is that LD 1384 makes the change retroactive. ]

LD 1109 has been withdrawn.  DEAD

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LD 1384: An Act To Clarify Apportionment of Benefits for Multiple Work InjuriesSponsored by Sen Gerzofsky; co-sponsored by Rep Watson, Sen. Bartlett, Sen. Jackson, Rep. Clark, and Rep Driscoll.

http://janus.state.me.us/legis/LawMakerWeb/summary.asp?ID=280032528

This bill is in response  to the Maine Supreme Judicial Court's decision in Legassie v. Securitas, Inc., 2008 ME 43, 944 A.2d 495. The decision in that case authorized a reduction to an injured worker's wage replacement and medical benefits because of a previously settled workers' compensation claim. This bill specifies that reducing an injured worker's benefits because of a prior settled injury is direct apportionment against the employee and is prohibited.

This bill also clarifies the applicability of the Maine Supreme Judicial Court's decision in Cust v. University of Maine, 2001 ME 29, 766 A.2d 566. This bill specifies that when an injured worker's permanent impairment rating under the Maine Revised Statutes, Title 39-A, section 213, subsection 1-A is above the applicable threshold on account of a single injury or the sum of multiple injuries, all of the worker's weekly benefits under the Maine Workers' Compensation Act of 1992 are exempt from the durational limit of Title 39-A, section 213, subsection 1.

This bill also clarifies that Title 39-A, section 354 applies to all injuries no matter when the injury occurred.  [LD 1384 is like LD 1109 except that it adds retroactivity.]

Public Hearing:  4/23/09

Work Sessions:  5/4/09, May 7 and May 13  OTP-A

The Labor Committee turned to interested parties to work through this bill in conjunction with LD 946.  The final products are satisfactory.

Passed to be enacted June 2,  2009

The amendment clarifies that there will be no reduction of an employee's entitlement to any workers' compensation benefits based on the lump sum settlement of a prior work-related injury.

It was adopted by the Senate on May 26 and the House on May 27.

LD 1456 An Act To Ensure That Construction Workers Are Protected by Workers' Compensation Insurance (sponsored by Rep. John Martin. Of ‘Eagle Lake.  Also Sen. Jackson, Aroostook, Sen. Mills, Sen. Simpson, Rep Cushing, Speaker Pingree.

SUMMARY

This bill provides that, beginning January 1, 2010, a person performing construction work on a construction site for a hiring agent presumed to be an employee of the hiring agent for purposes of workers' compensation, unless the person either meets the definition of "construction subcontractor" or carries workers' compensation insurance.

Public Hearing May 6 at 1 PM.

Work Session:  May 11, 2009 also May 13, May 14 and May 20, 2009 and May 27, 2009  OTP- Amended  (amendment not available on the website at this time.) The first amendment requires a general contractor on a project undertaken with public funds to provide the public agency with a list of independent contractors and subcontractors on the job site and the names of their workers' compensation insurers. The list must be posted on the contracting agency's publicly accessible website and updated as needed. The amendment establishes penalties for noncompliance with this provision.

The amendment provides an exception from the employee presumption for a person who owns or leases equipment and operates that equipment on a construction site. The amendment also requires a report from the Workers' Compensation Board and the Department of Labor, by December 15, 2009, to the Joint Standing Committee on Labor. Upon review of the report, the committee may report out a bill to the Second Regular Session of the 124th Legislature.
(The WCB report will include the fiscal impact on the WCB since coverage issues are handled by WCB staff, and the demand on staff time has increased dramatically. )

The other amendment changes "curb weight" to "gross vehicle weight rating" for a truck that is used for construction work in determining whether the person using the truck is considered the owner for purposes of workers' compensation insurance.

June 10 passage.