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May 12, 2017 Article

Maine WC Board Appellate Division Revisits Refusal of Suitable Work in the Context of Ongoing Employment

Maine Workers' Comp Alert

WORKERS’ COMPENSATION BOARD APPELLATE DIVISION REVISITS REFUSAL OF SUITABLE WORK IN THE CONTEXT OF ONGOING EMPLOYMENT

In Shaw v. Cumberland County Sheriff’s Department, Me. WCB App. Div. 17-14 (March 22, 2017), Shaw appealed from a decision granting her Petition for Award, awarding total incapacity benefits for two closed-end periods, but declining to award ongoing incapacity benefits. The Employee argued that the Judge erred by not awarding ongoing benefits on the grounds that: (1) she unreasonably refused a bona fide offer of reasonable employment pursuant to 39-A MRSA § 214 when she resigned from her position with the County on April 23, 2010; and (2) the period of refusal had not ended.

Section 214(1)(A) provides that if an employee receives a “bona fide offer of reasonable employment” and refuses that employment “without good and reasonable cause, the employee is considered to have voluntarily withdrawn from the work force and is no longer entitled to any wage loss benefits . . . during the period of refusal.” An existing employment relationship implicitly constitutes an ongoing “offer” of employment, thereby obviating the need for an employer to make a formal, affirmative “offer” of employment. Shaw did not dispute that the corrections officer position was a bona fide offer of reasonable employment.

The Judge found no doctor had restricted or limited Shaw in any way as of April 23, 2010; that she did not tell anyone at the County that she could not perform her duties because of her ankle injury; and that her resignation letter did not say she was resigning because she was unable to perform her duties due to an ankle problem. The Appellate Division found competent evidence in the record to support those findings.

Regarding the period of refusal, Shaw argued that it ended as early as May 4, 2010, because her reliance on her treating doctor’s opinions regarding work capacity constituted good and reasonable cause to justify continued refusal. However, in finding that the period of refusal had not ended, the Judge concluded that Shaw did not take some affirmative step to communicate to the employer a willingness to return to employment so that suitable work could be provided. The ALJ also noted that Shaw’s failure to end her refusal deprived her employer of the opportunity to mitigate its obligation to pay benefits by offering her alternative employment. The Appellate Division found this finding not to be erroneous and consistent with section § 214.

Shaw also argued that the Judge erred by not evaluating whether her reliance on her physician’s opinions that she was unable to return to work or her regular job justified “continued” refusal. However, the Appellate Division found that the Judge carefully considered the issue of the actual extent of incapacity and determined that Shaw had a partial ability to return to work at all times, contrary to some medical reports.

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