April 17, 2014 Article

Maine Workers' Compensation Board Appellate Division Updates

Maine Workers' Compensation Alert

Handicapped-accessible housing as a "physical aid" under 39-A M.R.S. § 206(8)
In Chapman v. VIP, Inc., Me. WCB App. Div. No. 14-9 (March 10, 2014), at issue was the payment of rent premium due to an asserted need for handicapped-accessible housing on account of severe work injuries. The employer and insurer appealed a decision (Goodnough, HO) finding the housing constituted a "physical aid" under § 206(8), and awarding payment for additional costs as compared to the cost of regular non-handicapped housing.  The Appellate Division reversed, finding the employee failed to meet her burden of proof. First, the increased cost was primarily because the employee no longer had a roommate to share costs. Second, the apartment was federally subsidized with rent calculated based on income. No evidence was adduced to establish that the apartment cost any more than similar non-accessible apartments in the same complex or area, or that any portion of current rent was specifically attributable to adaptations.

Chapman suggests that payment for handicapped housing could be ordered under the right set of circumstances: "[a]lthough we do not reach the issue whether a rent premium could be deemed payable by an employer under section 206, we do conclude as a fundamental matter that reimbursement cannot be awarded absent some evidence of the portion of the rent that is attributable to a unit's accessibility."

Discrimination
In Bellefleur v. Fraser Paper, Ltd., Me. WCB App. Div. No. 14-10 (March 17, 2014), an employee appealed a decision (Pelletier, HO) denying a Petition to Remedy Discrimination. The employee sustained injuries in 2007 and 2008, following which, his restrictions increased. The employer continued to accommodate him. In the interim surveillance evidence revealed the employee performing activities inconsistent with his restrictions. Thereafter, the employee was terminated based on dishonest statements made to a § 207 examiner regarding his activity level. The employee argued that the Board applied an improper standard by requiring him to prove not only that the employer discharged him because he asserted rights under the Act, but that the employer had a punitive motive in doing so (the Board found the employee had "not met his burden of proof… that the disciplinary action… was the result of punitive action taken by the employer in response to his work injury."). Notwithstanding the Board's reference to "punitive action," the Appellate Division found the Hearing Officer did not misconceive the applicable legal standard, as he found competent evidence in the record that the adverse employment action was motivated by a good faith perception that the employee was not being honest about the extent of his physical capabilities.

Advancing a rather novel argument, the employee claimed the Board erred in finding him dishonest because the parties reached an agreement during a prior grievance proceeding to purge any references to discipline and dishonesty. The Appellate Division held "[a]n agreement of the parties to strike allegations of dishonesty from the employment record does not prevent the hearing officer from hearing evidence and finding facts in a later action for discrimination relevant to the employer's state of mind at the time."

Bellefleur makes clear that termination based on dishonesty with respect to work capacity can withstand a Petition to Remedy Discrimination. Moreover, a Hearing Officer has wide latitude to consider all evidence, even that stricken from prior proceedings unrelated to the workers' compensation matter.

For more information about this alert or Preti Flaherty's Workers' Compensation Group, contact any of our Workers' Compensation attorneys

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