November 6, 2017 Article

Workers' Comp Alert: Appellate Division Revisits Issue of Refusal of Suitable Work

Maine Workers' Comp Alert

In Johnson v Maine Department of Transportation, WCB App. Div. No. 17-32 (October 11 2017), the employee sustained a low back injury on May 12, 2010, causing a herniated disc. He had surgery but was unable to resume his pre-injury job duties. He was accommodated by the DOT and paid benefits on a voluntary basis. After the employee’s primary care physician (PCP) imposed new work restrictions, the DOT was no longer able to accommodate him.

Accommodations and Complications

The State found a clerical position in the Department of Health and Human Services (DHHS) and offered it to the employee. During a meeting with a DHHS supervisor, the physical demands of the position were not discussed but the employee observed DHHS employees bending and lifting paper files. DHHS offered the job but the employee declined because he perceived it would entail more bending and also because he and his family had a prior negative experience with DHHS. The employee’s physician also endorsed the employee’s refusal of the offer from DHHS after the employee had related his impression of the job. After performing a work search, the employee found part-time work as a convenience store clerk and a full-time manager for Pronto Oil Service. These jobs paid less than the job at DHHS, which would have paid more than the employee’s pre-injury wages at DOT.

ALJ Analysis

The administrative law judge (ALJ) found the medical evidence relied upon by the employee’s PCP to be unpersuasive on the issue of whether the DHHS offer constituted a bona fide offer of reasonable employment. The ALJ ultimately determined that the employee rejected a bona fide offer of reasonable employment without good and reasonable cause and that the employee’s period of refusal did not end when his doctor endorsed his decision to refuse the job offer, when the employer withdrew the offer or when he found work elsewhere.

The Appellate Division's Opinion

The Appellate Division affirmed. It noted that simply because DHHS filled the position once offered to the employee does not prove that the State was no longer willing or able to accommodate him. The Appellate Division noted that, had the employee communicated a willingness to work, the State would have an incentive to find a suitable position for him. Thus, his failure to request reemployment with the State was not excused after DHHS filled the position it had offered. The Appellate Division rejected the argument that the period of refusal had ended when the employee found suitable work elsewhere because it would erode an employee’s incentive to meet their earning potential.

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