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New Employment Definitions & Reforms

by Molly O'Connell

The following has been reprinted with permission from Jay Martin, Small Business Advocate, Office of the Secretary of State.

 

 

New Employee vs. Independent Contractor Definitions

On December 31, 2013, new “employee” vs. “independent contractor” definitions went into effect.

 

Workers’ Compensation Insurance System Reform: Summary

The new law was effective in part on August 30, 2012 and the balance became effective on January 1, 2013.

 

The 125th Maine Legislature enacted LD 1913, An Act to Review and Restructure the Workers’ Compensation System which was signed into Public Law, Chapter 647 on April 18, 2012 by Governor LePage.  The Act requires that the Workers’ Compensation Board report, at least annually, to the Legislature, on costs to employers associated with long-term partial incapacity benefits and permanent impairment ratings.  In addition, the Act makes the following changes to our Workers’ Compensation Act effective August 30, 2012:

1. Eliminates the requirement that an employer, insurer or group self-insurer continue paying benefits to an employee pending a motion for findings of fact and conclusions of law or pending an appeal of a hearing officer decree by the employee;

2. Adds a presumption that work is unavailable for an employee participating in a rehabilitation plan ordered by the Workers’ Compensation Board for as long as the employee continues to participate in vocational rehabilitation;

3.  Establishes the time from which the statute of limitations for filing a petition begins from either 2 years from the date an employer is required to file a first report of injury, or the date of the injury if no first report is required;

4. Creates a new Appellate Division made up of panels of no fewer than 3 full-time hearing officers and gives the board authority to adopt routine technical rules of procedure for any review made by the newly created Appellate Division; and

5. Eliminates the permanent impairment threshold index from an adjusted impairment threshold, based on an actuarial review of cases receiving permanent impairment ratings to a threshold of greater than 12% whole body for injured employees with partial incapacity for injuries on or after January 1, 2006 and before January 1, 2013.

6. The Act also made several changes for injuries on or after January 1, 2013:

A. Shortens the time in which a notice of injury must be given from 90 to 30 days;

B. Increases the percent of the state average weekly wage calculation from 90% to 100% for the maximum benefit level computation;

C. Changes the calculation for determining the weekly compensation for total incapacity, partial incapacity, and death benefits from 80% of the injured employee’s net average weekly wage, but not more than the maximum benefit level, to 2/3rds of the injured employee’s gross average weekly wage, but not more than the maximum benefit level;

D. Establishes 520 weeks as the end date of benefit eligibility for permanently partially incapacitated injured employees and changes the eligibility requirements for the extension of benefits for permanently partially incapacitated injured employees.  In order to qualify for an extension, the following requirements must be met:

  • The injured employee must have a whole person permanent impairment rating resulting from an injury in excess of 18%.  The injured employee must have worked 12 of the last 24 months.  The injured employee’s earnings over the most recent 26 week period must be 65% or less of the pre-injury average weekly wage;
  • The injured employee’s actual earnings must be commensurate with the injured employee’s earning capacity which includes consideration of the injured employee’s physical and psychological work capacity as determined by an independent medical examiner.

In addition, while the injured employee is receiving extended partial incapacity benefits, the injured employee must complete and provide quarterly employment status reports and tax returns. If an injured employee’s weekly earnings over the most recent 26-week period are equal to or greater than the injured employee’s pre-injury weekly earnings, the extension of benefits is terminated permanently. Finally, if an injured employee does not qualify for an extension at the end of 520 weeks, the injured employee’s benefits expire.

For more information about Workers’ Compensation, visit the Maine Workers’ Compensation Board’s Website(Look to the column on the right for link to WCB Rules/Regulations.)

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