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WCB App Div's Causation and Offset Decisions

During the last week of October, 2016, the Maine Worker’s Compensation Appellate Division issued 2 new decisions; the first is understandable, but the second is confusing.

In Torrey v. Island Nursing Home(Decision No.16-34), Torrey was a CNA who, at the employer’s suggestion, received a vaccination against the hepatitis B virus, administered at the workplace by a nurse. Torrey developed symptoms diagnosed as complex regional pain syndrome and incurring medical bills and lost time. Torrey filed a petition, but INS controverted it, arguing that Torrey got the shot for her own sake, not to help her employer, so her vaccination reaction did not “arise out of” her employment.

Judge Hirtle granted Torrey’s petition and INS appealed. The panel reviewed the Comeau factors in detail and affirmed the underlying decision, giving “significant deference” to the Judge’s ruling, correctly noting the limitations of appellate review, and pointing out that Torrey’s immunization clearly benefited her employer because it would have allowed Torrey to safely manage patients with hepatitis B.

In Urrutia v. Interstate Brands (Decision No.16-35), Urrutia injured his back legs and arms in 2009 when he slipped on a catwalk and grabbed a ladder to catch himself. Interstate paid Urrutia total incapacity benefits starting in December 2010, and apparently without knowing that Urrutia had started receiving Social Security retirement benefits in August 2010. From December 2010 until November 2013, Urrutia received both full SS retirement benefits and total incapacity WC benefits without any setoff.

In November 2013, Interstate began taking its 50% social security offset pursuant to §221, but Interstate filed a petition asking the Board allow it to stop benefit payments entirely until it recovered $24,000 in past setoffs it should have taken. Judge Stovall interpreted §221 to allow a retroactive offset because of the statutory language covering Social Security benefits “received or being received” at the same time WC benefits were also received.

Urrutia appealed, and the Appellate Division panel vacated the decision, holding that §221 does not permit a retroactive offset. The panel’s reasoning, however, is difficult to follow. The statutory language in §221(3)(A)(1) expressly refers to Social Security retirement benefits “received” in the past, and Urrutia received both benefits during “the same time period,” yet the panel held that Interstate could not take a “holiday” now for SS retirement benefits Urrutia previously received when he was simultaneously getting total WC benefits.

In letting Urrutia keep his double recovery, the panel noted that the Maine WC Act contains no statutory provision for recovering an “overpayment,” outside of §324 when a decision awarding benefits is reversed by factual findings or on appeal. In this case, however, Interstate argued that the authority comes from the “received” language of §221(3)(A)(1), which the panel failed to address.

This case seems ripe for appeal to the Maine Supreme Court or for a legislative correction of §221. In the meantime, employers should remain alert to WC recipients who are nearing retirement age and should obtain timely releases and benefit information as §221 provides.

If you have any questions about this or any other case, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law