Partial-Incapacity Workers’ Compensation

In recent years the state of Maine’s legislature has quietly passed laws that changed the Maine Workers’ Compensation Act in several ways. Perhaps most importantly, a couple of legislative enactments capped partial-incapacity compensation (cash) benefits at ten years (520 weeks, to be precise) in most cases. This, of course, is distinct from total-incapacity compensation and applies only when the employee has some earning capacity after an injury but cannot earn what he or she made before the injury.

A couple of mechanisms for extending partial-incapacity provide a safety net of sorts, but both of these are difficult to qualify for. One mechanism is to petition for an extension based on “extreme financial hardship due to inability to return to gainful employment.” Such petitions are rare. The other is a claim for extended partial-incapacity benefits. Confidentiality rules prevent us from learning how common or rare this kind of extension is, but an injured employee must have a fairly high permanent impairment rating and an earning capacity within a relatively narrow range to qualify. For everyone else, you’re done after ten years.

This change represents a significant departure from the wage replacement goal or concept behind workers’ compensation: an arbitrary limit of ten years has been placed on cash benefits, unless the employee can demonstrate either “extreme financial hardship” or a set of detailed circumstances that is probably rare. Someone who is permanently and partially disabled with a low skill level and, therefore, a low ability to earn after a major injury is told, in effect, to accept the prospect of permanent poverty. Someone else who is permanently and partially disabled with a higher education and, therefore, a boatload of student loan debt is saddled with repayment regardless of his or her ability to attain and maintain decent employment.

This situation calls for a legislative amendment, but I don’t see any such thing happening unless people get past the myth that most injured workers are exaggerating symptoms, fabricating medical conditions, or simply lacking the necessary work ethic. Workers’ compensation law is built on the premise of a quid pro quo between companies and their employees, but legal changes like this one undoubtedly tilt in favor of the companies’ insurers.