Mending Walls in Workers’ Comp

At the behest of Teddy Roosevelt, state worker’s compensation laws were created around 1915, the year Robert Frost published “North of Boston,” including the poem “Mending Wall,” which begins, “Something there is that doesn’t love a wall.”

The comp laws abrogated civil tort law, under which most employees lost their cases because their own negligence caused their injuries, leaving them incapacitated and dependent on state welfare. Under comp law, the employee’s negligence is irrelevant— the primary substantive question is whether his injury was caused by his work or by something else; the secondary question concerns the extent of his disability.

In resolving these questions, time is often of the essence, especially when the employee remains unable to earn a living and his medical bills are mounting. Laborers (and attorneys) often live hand-to-mouth, dependent on each paycheck to buy the week’s groceries and pay the rent or mortgage. Injured employees are left to borrow from their friends and family to keep body and soul together, as they wait for their claims to be adjudicated.

In 1992, the Maine legislature, under pressure from worker’s comp insurers threatening to leave the State, enacted the 1992 Workers’ Compensation Act, which substantially amended existing law, reducing employer costs (i.e. employee benefits), and creating a Board of Directors comprised of labor and management representatives to establish policy and procedural rules.

Chief among the changes was the elimination of employer-paid attorneys’ fees for employees, who were now required to pay their own attorneys out of the accrued benefits they obtained from the employers. Former employee attorneys were naturally reluctant to take small cases, and employees required to conduct discovery and hearings pro se. Given the complexities of worker’s comp, the Legislature’s vision of “reducing attorney involvement” has proven chimerical, and the Act was subsequently amended to provide employees with free advocates (well, free to the employees: the employers pay an annual assessment to fund the advocate division).

Although in the initial stages of a claim (up to mediation), employers and insurers often represent themselves; at hearing, employers are usually represented by attorneys. At mediation, the employee is required to present his claim, including his unpaid medical bills. Because the advocates handle so many claims, however, they often meet their employees first at mediation and thus arrive at the mediation conference without the unpaid medical bills or the medical records to support their compensability.

It’s fine for the Board to require prompt mediation of disputed claims, but it should require prior submission of relevant information, to give the parties a better chance to resolve the claim at that stage. Yes, the Board has Claims Resolution Specialists” who encourage the parties to exchange relevant information before mediation, but their activity is largely ministerial and ineffective.
In civil practice, discovery (interrogatories and depositions of the parties, at least) precedes mediation; as a result, most cases are mediated successfully or otherwise settled before trial. In WC practice, mediation precedes discovery— in fact, the Board expressly discourages the employer from ‘conducting discovery’ at mediation. Thus, if the employer is withholding WC benefits because the employee is withholding information about his condition, mediation won’t help.

If the mediation is “unsuccessful” in resolving the claim, the employee is allowed to proceed to formal hearing upon the filing of a petition. WCB hearings officers developed procedural rules, later adopted formally by the Board of Directors, which discarded the prior “multiple hearings” format and required “unitary hearings” at which the parties must present all of their witnesses and evidence, similar to a trial in civil court.

The rules also limit the discovery each side is allowed and provided a truncated time-line to hearing. The Board devised 13 general questions for the employee and 10 general questions for the employer. The employer and employee discovery responses are due 30 days after mediation, and a “Joint Scheduling Memorandum” (JSM) must be filed 45 days after mediation, listing all prospective witnesses and defenses, which in turn prompts the Hearing Officer to schedule a case for a unitary hearing.

The goal of these rules is to reduce the length of time between an employee’s claim for benefits and a decision on the merits. The problem for employers is that the Board actively limits them from discovering the facts of the case, yet it simultaneously requires a unitary hearing at which all evidence must be presented.

This puts employers the unenviable position of trying to figure out how the rebut a hearing the testimony of the employee’s witnesses without knowing in advance with they will say. Indeed, without adequate pre-hearing discovery, the employer cannot know even what witnesses to list on the JSM or bring to the hearing or what other evidence to present, depriving them of procedural due process of law.

“Spring is the mischief and me, and I wonder if I could put a notion” in the Board’s collective head: why prevent a full exchange of information between the parties? “Before I built a wall I’d asked to know what I was walling in or walling out, and to whom I was like to give offense. Something there is that doesn’t love a wall, that wants it down.”

Two of the most pernicious problems in worker’s comp are the 90-day period within which an employee must report a work injury, and the 14-day period within which an employer must file a Notice of Controversy (NOC). The employee does not report his injury on time (within 90 days after he realizes he has a work injury), his claim is forever barred, regardless of the merits of his claim; if the employer does not file a NOC on time (within 14 days of a claim for incapacity benefits), the employer must automatically pay all of the benefits requested to date, regardless of the merits of the claim.

Although the Board has devised dozens of forms the employer is required to complete and file (or be fined!), it has never devised a “Notice of Injury” form which would help eliminate notice issues, and it has never devised a “Notice of Claim for Benefits” form which would help eliminate 14-day issues, in spite of my repeated suggestions that they do so. Instead, these decisive procedural issues are left to fester and bedevil the parties— and the Hearing Officers who must resolve them. These are procedural “gaps even two can pass abreast.”
Worker’s comp practice is largely the gathering of medical records and interviewing prospective witnesses. The 1992 Act (39-A M.R.S.A. §208) laudably eliminated the need for written releases to get medical records pertaining to treatment the employee claims to be compensable under the Act, and it required the doctors to send employers copies of records within 10 days of a request. It also eliminated the statutory requirement for employee to sign a release within 20 days of the employer’s request.

With the advent of substantial HIPAA penalties for unauthorized disclosure of medical information, however, many doctors are understandably reluctant to send records without a release, even though HIPAA expressly exempts worker’s compensation cases from its ambit. So now we have employees who won’t sign releases and doctors who won’t send records without one. (“Oh, and hurry up, employer, because we want a hearing soon.”)

In order to differentiate between a work injury and a pre-existing or subsequent condition, employers must gather all medical records relating to the condition. (Indeed, to determine whether the employee’s incapacity is caused by the work injury, employers need medical information on other potentially disabling conditions, but that’s another story.) As the statutory elimination of releases applies only to “compensable” treatment, employers must have releases to get records relating to “non-compensable” treatment of the same body part.
The Board therefore created a release form and promulgated a rule requiring an employee to sign one “within a reasonable time.” The release itself ostensibly requires the employee to sign it within 20 days (“or activity on your claim, or your benefits, may be suspended!”), but the Board does not enforce that provision, so employers sometimes wait months to get releases to get relevant medical records.

The Board’s release is expressly “limited” to written information only and “does NOT authorize oral communication with or by any health care provider.” Thus, the employer cannot call the doctor to ask about the treatment, not that one would often need to, but one wonders what the Board is “walling in or walling out.” Is the Board afraid the employer will learn the truth about the employee’s claim?
The Board’s pre-packaged 13 interrogatories to the employee include questions on occurrence of the injury, notice to the employer, prior treatment of the same condition, average weekly wage, and a summary of the expected testimony from the employee and his witnesses. Employee advocates and attorneys (who prepare and sign the answers for their clients) typically provide cryptic answers: “I hurt myself at work, I notified my employer right away, I never had a prior injury like this, I haven’t calculated my wage yet, and I and my witnesses will testify about my injury and incapacity.” Okay, then, ready for trial?

I am a royal pain. Ask any employee’s attorney. Given these answers, I always ask them for further information. If it is not forthcoming, I file a Motion to Compel Discovery and object to the employee filing the JSM. Usually the Hearing Officers grant my motions, but they often decline to extend the deadline for filing the JSM.

In recent complicated case, I asked the Hearing Officer (as the Board rules require) to let me depose the employee to find out how and where he thinks he was exposed to “dangerous fumes” in my client’s enormous facility. “Denied,” said the Board. I guess we’ll find out at hearing, but I have 1,500 prospective witnesses and don’t know who to call.
I suppose I am one of Frost’s hunters, “Where they have left not left one stone on a stone, But they would have the rabbit out of hiding, To please they yelping dogs.” But I vaguely recall one of my law school professors announcing that, given ample discovery, “trial by ambush” was no longer cachet. In civil litigation that may be true, but the Workers’ Compensation Board, “like an old-stone savage armed,” has resurrected this Neanderthal concept and enshrined it in its amber rules. “He moves in darkness as it seems to me,” as creating a legal bottleneck for relevant information only creates additional litigation, with its attendant costs for the Board and the parties, and delays the resolution of claims, precisely the bogeymen the Legislature tried to dispel in the 1992 Act. “There where it is we do not need the wall.”

We should not be surprised, as the Board of Directors is still largely dysfunctional. At its February 26th meeting (the last minutes posted on its website), all three management members left before the meeting started—over an hour late, because the three labor representatives were busy ‘caucusing’ in private. Not to worry: the Executive Director is now a voting member of the Board and made the quorum of four, so the meeting went along smoothly, albeit in labor’s direction. The Board is like Frost’s neighbor, “He likes having thought of it so well He says again, ‘Good fences make good neighbors.’”