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the employee refuses that employment without good and reasonable cause, the employee is considered to have voluntarily withdrawn from the work force and is no longer entitled to any wage loss benefits under this Act during the period of the refusal.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.

Firm Highlights


U.S. News – Best Lawyers Ranks Preti Flaherty Among 2021 Best Law Firms

Preti Flaherty has been named among the 2021 Best Law Firms by the U.S. News – Best Lawyers rankings. To be eligible for ranking, a law firm must have at least one attorney named...


Maine Workers' Comp Alert: Updates from the WCB October Monthly Business Meeting

The Maine Workers’ Compensation Board met remotely on October 13, 2020, for its monthly business meeting. Following are some developments with respect to reappointments, the appointment of a Section 312 examiner, and claims related...


Maine Workers' Comp Alert: Update on Appellate Division Findings on Notice of Injury Requirements

Maine WC Appellate Division Affirms Decision Finding Untimely Notice of Injury; Reiterates Requirements for Timely Notice As background, the notice period is 90 days for dates of injury between January 1, 1993, and January...


48 Preti Flaherty Attorneys Selected by Peers for Inclusion in Best Lawyers in America 2021, Including 4 “Lawyers of the Year”

Forty-eight Preti Flaherty attorneys have been named to Best Lawyers in America 2021, including four recognized on the inaugural “Ones to Watch” list for attorneys earlier in their careers and four “Lawyer of the...


Maine Workers' Comp Alert: Board Updates Fee Schedule

The Maine Workers’ Compensation Board has completed its annual update with respect to Appendix III (inpatient facility fees) for dates of discharge on or after October 1, 2020, in accordance with Title 39-A M.R.S.A...


Preti Flaherty COVID-19 Resources

In response to the ongoing COVID-19 pandemic, Preti Flaherty's attorneys have maintained a constant stream of the most up-to-date information and resources for our clients, business partners, and others struggling to navigate these complex...


Maine Workers' Comp Alert: WCB Announces Updates to Several Forms

The Maine Workers’ Compensation Board has revised several forms, which are now available here . The WCB-4 (Discontinuance/Modification) has been divided into two new forms, WCB-4D (Discontinuance) and WCB-4M (Modification). The Discontinuance, Modification, and...


Attorney Evan Hansen Selected by Peers as “Lawyer of the Year” in Best Lawyers in America 2021

Preti Flaherty attorney Evan Hansen has been recognized in Best Lawyers in America 2021 as the “Lawyer of the Year” for the Portland region in the field of Workers' Compensation Law - Employers. Inclusion in...


Maine Workers' Comp Alert: Appellate Division Affirms Notification Requirements for Occupational Disease Claims

WC Appellate Division Finds Timely Notice in Context of Occupational Disease Claim; No Independent Obligation to Notify Employer’s Insurer Where Not Required by Statute Timely notice is critical for a viable claim under the...


Maine Workers' Comp Alert: WCB Transition to In-Person Hearings Likely to Occur No Sooner Than August 2020; Section 312 IME’s Have Resumed

A conference with Maine Workers' Compensation Board Executive Director John Rohde was held last week to discuss the transition to in-person hearings at the WCB. The WCB Subcommittees also met to discuss recent developments...