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December 10, 2018 Article

Maine WC Alert: Appellate Division Addresses Overcoming an Ongoing Refusal of Suitable Work

Maine Workers' Comp Alert

The Appellate Division recently issued a decision on the issue of refusal of suitable work, addressing overcoming an ongoing refusal. Section 214(1)(A) of the Maine Workers’ Compensation Act provides:

If an employee receives a bona fide offer of reasonable employment from the previous employer or another employer or through the Bureau of Employment Services, and the employee refuses that employment without good and reasonable cause, the employee is considered to have voluntarily withdrawn from the work force and is no longer entitled to any wage loss benefits under this Act during the period of the refusal.

A refusal ends “when the employee communicates to the employer a willingness to accept the offer previously rejected” by “some affirmative step” (Loud v. Kezar Falls Woolen Co., 1999 ME 118). In Loud, the Law Court found a refusal was not ended by speaking “informally and in generalities” with a former supervisor during a happenstance encounter in public. There, “[[t]he employee] never contacted her employer at its place of business or at any other location where applications for work are customarily made. Neither in writing, nor by telephone, did she request a job or accept the offer previously rejected” (Id.). Under these circumstances, the employee failed to take the kind of affirmative steps that the statute requires to end a period of refusal.

In Tiner v. Oak Grove Center (No. 18-30 [November 20, 2018]), the Appellate Division affirmed a decision finding that the employee did not terminate the period of refusal because, when contacting her employer, she “never identified herself as a former employee of Oak Grove who was trying to return to work after an injury there.” The employee’s failure to identify herself to the employer as a former employee seeking to return to work after an injury “fell short of the level of communication required by section 214(1)(A).”

Tiner confirms that some written or oral communication by an employee, specifically requesting a return to work or accepting a pending job offer, is required before an ALJ will find that a period of refusal has ended. An anonymous inquiry or one in passing outside the workplace will generally not suffice.

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