Maine WC Alert: Appellate Division Affirms Finding of Waiver on Pending Petition for ReinstatementMaine Workers' Comp Alert May 29, 2018
In Ornberg v. Pineland Potato Co., Inc., WCB App. Div. No. 18-17 (May 10, 2018), a pro se employee appealed a decision denying her Petition for Reinstatement. The Petition was denied after finding the employee did not request reinstatement at the hearing or in closing argument.
The Appellate Division found that, while the employee testified she wanted to return to work for Pineland Farms, “in the absence of specific requested relief in closing argument or a motion for further findings of fact, it was not reversible error for the administrative law judge (ALJ) to find that the claim for reinstatement had been abandoned and deny it.” Further, “Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”
Section 218, governing reinstatement, provides, “Upon petition of an injured employee, the board may require, after hearing, that the employee be reinstated as required by this section.” It also provides, “the employer must make reasonable accommodations for the physical condition of the employee unless the employer can demonstrate that no reasonable accommodation exists or that the accommodation would impose an undue hardship on the employer.” Section 218 also states, “The petitioning party has the burden of proof on all issues regarding claims under this section except that the employer always retains the burden of proof regarding the availability or nonavailability of work.” Given the ultimate burden on the employer/insurer on the availability or nonavailabilty of work, it seems the ALJ should have addressed the merits of the petition.