Maine Workers’ Compensation Alert: Maine WCB Appellate Board Rules Vocational Rehabilitation Presumption is RebuttableNovember 6, 2015
In Axelsen v. Interstate Brands Corp., App. Div. Dec. No. 15-27 (October 22, 2015) the Workers’ Compensation Board Appellate Division found the presumption in section 217 of the Workers’ Compensation Act is rebuttable. Section 217 provides: “If an employee is participating in a rehabilitation plan ordered pursuant to subsection 2, there is a presumption that work is unavailable to the employee for as long as the employee continues to participate in employment rehabilitation.”
Employees argued the presumption is 'conclusive', entitling an employee to receive 100% partial during the pendency of a WCB ordered vocational rehabilitation plan.
Axelsen establishes the presumption is rebuttable. The employer can seek to rebut the presumption and establish the extent of incapacity is less than 100% while a WCB ordered vocational rehabilitation plan is in effect by proving that work is available through labor market evidence. Factors to be considered in determining whether the presumption is rebutted include the practical effect participation in the plan has on the employee’s availability for work, including the amount of time participation in the plan requires and whether the plan requires homework or onsite training.