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WCB Appellate Division on Changed Economic Circumstances and Brand-Name Drugs

The Maine Workers’ Compensation Board’s Appellate Division has just issued a decision affirming a finding of changed economic circumstances warranting an increase in the employee's benefits, but vacating the order to pay for brand-name drug prices when generic drugs were available.

In Rebecca Belanger v. Miles Memorial Hospital, Ms. Belanger was a nurse who injured her hands and arms at Miles causing her partial incapacity. In 2003 decree, the Board found she had job opportunities in the health profession and was capable of earning $800 per week. Some years later, Ms. Belanger filed a Petition for Review, resulting in a 2012 decree found that she had proven no change in her medical or economic circumstances, nor had she proven that her anxiety and depression increased her incapacity for work.

Ms. Belanger then filed another Petition for Review and a Petition for Payment of Medical Bills. Judge Knopf issued another decision, this time finding no change in Ms. Belanger's medical circumstances, but finding a change in her economic circumstances since the 2012 decree which reduced her earning capacity to $400 per week. Judge Knopf ordered an increase in her partial incapacity benefits accordingly, and she also ordered payment of the medical bills including the brand-name prescriptions. Miles appealed both parts of the decision, and the Appellate Division panel sustained Judge Knopf’s finding of increased incapacity but vacated her decision regarding payment of the brand-name drugs.

The Appellate Division determined that Judge Knopf had properly found a change in economic circumstances sufficient to overcome the res judicata effect of the 2012 decree: Ms. Belanger had performed an insufficient work search, she had engaged in vocational rehabilitation, she had undergone surgery followed by a period of total incapacity, she was total incapacitated from a psychological condition, she started and lost a job, she had not worked in nursing for over 10 years, and she was now 65 years old.

Unfortunately, the Appellate Division panel did not specify how these factors differed from the factors present in 2012, when the last decree was issued, or why these factors would support an increase in her incapacity benefits regarding her hand injuries. The majority opinion criticizes Miles because it "cites no authority to support its contention" that an insufficient work search cannot be considered as evidence of changed circumstances. The majority, however, "cites no authority" for its proposition that an insufficient work search is relevant to anything. Thus, employers may want to get labor market surveys even when the employee’s work search appears inadequate.

The panel also considered 39-A MRSA §206 (11) that requires payment for generic drugs when they are available. The panel agreed with Miles that Ms. Belanger had the burden of proof on this issue and that she failed to meet her burden. Panel member Stovall dissented on that point, suggesting that the employer should have the burden of proof of the availability of generic drugs. Although his view did not prevail in this case, other ALJs may agree with him, so employers would be well-advised to obtain and present proof of the availability of generic drugs in similar cases.

If you have any questions, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law