WC Board Rule 2, §5 provides that an employer can discontinue partial incapacity benefits at the expiration of the 520-week period, but only if the employer has first given the employee 21-days advance notice of the upcoming date of discontinuance and of the employee’s 30-day right to request a hardship extension. Administrative Law Judge Betsy Elwin has just issued a decision holding that this rule applies only if the employer uses a 21-day Certificate of Discontinuance; it does not apply on an employer’s petition when the decision is issued after the 520-week limit has expired, as the employer could not pre-determine the future “date of discontinuance” the rule otherwise requires.

In Lorraine Somers v. S.D. Warren Co., Somers injured her knee at work, and Warren was paying Ms. Somers 100% partial benefits under a 2008 decision that also found 7% permanent impairment, well below the 11.8% threshold for lifetime partial benefits. Because of the prior decree, Warren filed a petition for review in 2013 seeking to discontinue benefits under the 520-week durational limit; Somers’ attorney litigated the case on her behalf. S.D. Warren had not sent Ms. Somers the WCB-mandated notification, but Judge Elwin granted S.D. Warren’s petition, allowing the discontinuance, which Somers has appealed. In addition, five months after getting the order of discontinuance, Somers’ attorney filed a petition for reinstatement, arguing that, because Warren did not comply with Rule 2, §5, it must immediately recommence payment of partial benefits.

Warren first argued that WCB Rule 2, §5 is ultra vires (beyond the Board’s authority to create) as it directly conflicts with 39-A MRSA §205 and §213 by continuing benefits eligibility beyond 520 weeks and adding requirements for implementing the durational limit. Judge Elwin held that the rule was not ultra vires, given the Board’s broad authority to promulgate rules, but she also held that Rule 2, §5 applies only to situations in which benefits will cease prospectively on a date certain, as the rule requires the notification to include the date benefits are “due to expire.”

She held that applying the rule in Somers’ circumstances would be illogical, as the date benefits are “due to expire” is unknown and depends on the future issuance of a WCB decision. In order to avoid an “absurd result,” Judge Elwin interpreted the rule to apply only when the employer seeks discontinuance through a 21-Day Certificate, when the benefit termination date can be identified in advance. Somers may appeal this decision, and employers may want to provide the 21-day notice in every 520-week case, if only to avoid litigating the issue later.

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Thomas Getchell
Daniel F. Gilligan