Failure to Follow Notice Rule Curbs Effort to Cut Benefits

23 Dec, 2020 Frank Ferreri


Portland, ME ( – When it comes to terminating an employee’s workers’ compensation benefits, employers should heed state notice requirements and the timelines they include.

That was the lesson a company learned in Somers v. S.D. Warren Company, No. WCB-20-60 (Me. 12/15/20), when its failure to send a required notice to a worker upended it’s push to end the worker’s benefits and drew criticism from the court about the company’s math skills.

520-week Cap

The worker experienced a knee injury on the job. Although she returned to work, her symptoms worsened, and the company later terminated her. The state’s workers’ compensation board determined that the injury was compensable and that the worker was entitled to ongoing 100 percent partial incapacity benefits.

About five years later, the company petitioned to discontinue the worker’s benefits, arguing that her entitlement to them had ended pursuant to a 520-week statutory cap under state law. The board found in the company’s favor.

Roughly two years later, the worker petitioned for a reinstatement of benefits, claiming that the company didn’t send the notice for terminating benefits required under state regulations.

The board denied the petition, prompting the worker to appeal. The appellate division vacated the board’s decision, which caused the company to appeal to Maine’s top court, arguing that the notice rule didn’t apply.

The regulation at issue contained a rule spelling out that before an employer could cease benefits, it had to notify the employee that the benefits were due to expire. This notice was required to be sent at least 21 days before the expiration date.

Notice Requirements

The court held that the company couldn’t escape this rule, and it upheld the appellate division’s ruling in the worker’s favor.

The court rejected the company’s argument that the rule didn’t matter because the board had already issued a decree allowing the company to terminate benefits.

According to the court, the “plain language” of the rule at issue did “not give an employer an automatic right to immediately cease paying benefits without giving notice to the employee.”

The court explained that the regulations give employees the right to pursue a hardship exception to the discontinuation of benefits and such provisions “would be rendered meaningless if the employee’s rights were cut off before receiving notice of those rights.”

Additionally, the court rejected the company’s argument that it couldn’t know when it was supposed to send the notice to the worker.

The company could have met the rule’s requirement to notify the worker “by applying basic math and sending the notice 21 days before reaching the presumptive 520-week benefit limit,” the court wrote.

The court explained that doing this calculation would have allowed the rule to operate as intended.

“Had [the company] done so, [the worker] would have known exactly when her petition for an extension of benefits was due,” the court pointed out.

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law.

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