Thompson v. Claw Island
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 101
Docket:	WCB-96-841
Argued:	February 4, 1998
Decided:	May 8, 1998


Panel:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, SAUFLEY, JJ.

WILLIAM THOMPSON

v.

CLAW ISLAND FOODS

and

COMMERCIAL UNION INSURANCE CO.

SAUFLEY, J.

	[¶1]  William Thompson appeals from a decision of the Workers'
Compensation Board denying his petition for review and denying him
continuing incapacity benefits based on his refusal of an offer of
reinstatement employment by Claw Island Foods, his pre-injury employer.  
Thompson contends that because he had moved away from the site of his
pre-injury employment, the offer of employment at that site was not an offer
of reasonable employment.  Alternatively, Thompson contends that his
refusal of the offer was for good and reasonable cause.  Because the Board
failed to apply the correct legal standard, we vacate the decision.
	[¶2]  Thompson suffered a work-related injury to his back on
January 12, 1993, while employed at Claw Island Foods on Vinalhaven
Island.  He left work due to the injury and began receiving total benefits.  His
request for light-duty employment was denied because no light-duty work
was available, and in April 1993 he was informed that his former position
had been eliminated.  The Board found that: 

After receiving notice that his job had been eliminated [for
economic reasons], Employee modified [his pending housing]
loan application so that his family could move to the mainland. 
On November 1, 1993, Employee moved to temporary lodging
on the mainland, and then settled into a new home in Searsport. 
Employee estimated that Searsport is a 45-60 minute drive from
the Vinalhaven ferry terminal, and that the ferry ride to the
island takes just over one hour.

	[¶3]  Within a month of Thompson's move to the mainland, Claw
Island mailed him a written offer of seasonal reinstatement work extending
from the months of July to January.  Claw Island offered to reimburse
Thompson for his round-trip ferry travel to and from the island.  Thompson
refused the offer, and Claw Island unilaterally terminated his benefits based
on that refusal.  See 39-A M.R.S.A. § 205(9)(B)(1) (Supp. 1997).  Thompson
filed a petition for review challenging the termination.  Although the Board
declined the employer's invitation to apply 39-A M.R.S.A. § 218(5) (Supp.
1997), it nonetheless denied Thompson's petition, concluding that the
termination of benefits was permissible pursuant to 39-A M.R.S.A.
§ 214(1)(A) (Supp. 1997).  Subsequently, the Board denied Thompson's
motion for additional findings of fact, and we granted his petition for
appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1997).

I.  39-A M.R.S.A. § 218

	[¶4]  Claw Island contends that, even if it were not entitled to
terminate benefits pursuant to subsection 214(1)(A), the termination was
permissible pursuant to 39-A M.R.S.A. § 218(5).  We disagree.  Section 218
provides, in pertinent part:

	§ 218. Worker reinstatement rights

	Upon petition of an injured employee, the board may
require, after hearing, that the employee be reinstated as
required by this section.

	. . . .

	5. Failure to comply.  The employer's failure to comply
with the obligations under this section disqualifies the employer
. . . from exercising any right it may otherwise have to reduce or
terminate the employee's benefits under this Act.  The
disqualification continues as long as the employer fails to offer
reinstatement or until the employee accepts other employment.

	If any injured employee refuses to accept an offer of
reinstatement for a position suitable to the employee's physical
condition, 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 refusal.

39-A M.R.S.A. § 218.  Pursuant to the introductory language, "[u]pon the
petition of an injured employee," subsection 218(5) applies only in the
context of a petition for reinstatement.  This interpretation is consistent
with the heading of subsection (5), "Failure to comply," indicating that the
subsection only applies in the event of an employer or employee's actual
failure to comply with the obligations of formal reinstatement procedure
after a petition for reinstatement has been filed.  See 39-A M.R.S.A. § 218.  
	[¶5]  Contrary to Claw Island's contention, this interpretation of the
plain language of section 218 is not inconsistent with our interpretation of
former 39 M.R.S.A. § 66-A.  In Keene v. Fairchild Co., 593 A.2d 655, 657-58
(Me. 1991), we concluded that, pursuant to former 39 M.R.S.A. § 66-A, prior
to its amendment by P.L. 1987, ch. 559, § B(35), the employer could
discontinue benefits after the employee refused an offer of reinstatement,
even in the absence of a petition for reinstatement.  See Keene, 593 A.2d at
656-67.  Unlike section 218, however, the reinstatement provision at issue
in Keene did not include the defining language, "[u]pon the petition of an
injured employee."{1}  This language was not added to former section 66-A
until 1987.  See P.L. 1987, ch. 559, § B(35), repealed by P.L. 1991, ch. 885,
§ A-7.  We have not interpreted former section 66-A after the introduction
of that language in 1987.{2}  
	[¶6] Because section 218 unequivocally applies only "upon petition of
an injured employee," the Board did not err by concluding that because
Thompson did not file a petition for reinstatement, subsection 218(5) does
not apply and the issue is governed exclusively by section 214.{3}

II.  39-A M.R.S.A. § 214(1)(A)

	[¶7]  In applying section 214, the Board is required to undertake a
two-part analysis, reviewing both the employer's actions in making the job
offer and the employee's actions in declining that offer.  Section 214
provides, in pertinent part:

	§ 214.  Determination of partial incapacity

	1. Benefit determination.  While the incapacity is partial,
the employer shall pay the injured employee benefits as follows.

	A. 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.

. . . .

	5. Reasonable employment defined.  'Reasonable employ-
ment,' as used in this section, means any work that is within the
employee's capacity to perform that poses no clear and
proximate threat to the employee's health and safety and that is
within a reasonable distance from that employee's residence. 
The employee's capacity to perform may not be limited to jobs
in work suitable to the employee's qualification and training.

39-A M.R.S.A. § 214.  Pursuant to these provisions, when confronted with an
employee's decision to decline a job offer, from whatever source, the Board
must determine first, whether the offer was a "bona fide offer of reasonable
employment" and second, whether the employee refused that offer without
"good and reasonable cause."

A.  Bona Fide Offer of Reasonable Employment

	[¶8]  When the Board is called upon to determine whether the
employee received a bona fide offer of reasonable employment, it must
consider each of the factors set out in subsection 214(5), that is, whether
the work falls within the employee's work capacity, whether it poses a
threat to the employee's health and safety, and whether it is within a
reasonable distance of the employee's residence.  Because subsection 214(5)
gives no guidance as to whether "employee's residence" refers to the
residence at the time of the injury or at the time of the job offer, the Board
must first determine which residence is controlling before deciding
whether the offered position is within a reasonable distance of that
residence.  
	[¶9]  We have not had occasion to consider the reference point for
determining the employee's residence for purposes of section 214.  The
Legislature intended, whenever possible, for such issues to be addressed to
the Board;{4} however, while ambiguities in the Act may be addressed by the
Board, either through rulemaking, see 39-A M.R.S.A. § 152(2) (Supp. 1997),
or through the exercise of its appellate review authority, see 39-A M.R.S.A.
§ 320 (Supp. 1997), the full Board has not had an opportunity to address
this issue.  Therefore, to foster consistency in the application of section
214, the Board should consider the following factors in determining the
employee's residence for purposes of section 214.
	[¶10]  Both the employer and the employee ask this Court to define
"employee's residence" for purposes of subsection 214(5) to have a single
meaning, regardless of the facts of an individual case.  The employee asks
the Court to define residence as his residence at the time of the job offer;
the employer suggests that we define it as his residence at the time of the
injury.  Although we recognize the ease of application that may result from a
single judicially created definition of residence, we conclude that such a
definition is neither contemplated by nor consistent with the language of
the Act.  
	[¶11]  A definition of residence that refers always to the residence at
the time of the offer would effectively allow any employee to move away from
the employer's work site and thereby render all job offers from that
employer unreasonable.  Similarly, a definition of residence that refers
always to the residence at the time of the injury would result in the certain
loss of benefits by any employee who relocates away from the employer's
work site if a job were offered at that work site, regardless of the employee's
employment related motivation in relocating.  Either result is inconsistent
with the goals of the Act.  It is incumbent on the Board, therefore, to
determine which residence is applicable from the facts before it in each
case.  
	[¶12]  In making such determinations the Board should consider all
factors relevant to the employee's move.  When the employment is offered
by the enterprise at which the employee worked at the time of injury, and
the position offered is located at the place of employment at the time of the
injury, the Board may determine that the "residence" referenced by
subsection 214(5) is the employee's residence at the time of that injury
unless it determines that the employee moved for reasons consistent with
the goals of the Act.  Among the facts that will be relevant to the Board's
determination are the employee's motivation for the move, the length of
time between the injury and the offer, and whether a reasonable employee
would have understood that an offer of reinstatement at that site was
possible.  In considering the employee's motivation for moving, the Board
should consider whether a primary motivation for the move was the
reasonable expectation that the move would increase job opportunities,
increase opportunities for productive rehabilitation, facilitate a return to the
job market, or advance some other compelling purpose consistent with the
goals of the Act.   
	[¶13]  As we have previously recognized, section 214 is based on
Michigan law.  See L.D. 2364, Statement of Fact (115th Legis. 1991); Bureau,
678 A.2d at 589-90.  Because the Michigan statute is based on the Michigan
common law "favored work" doctrine, see Pulver v. Dundee Cement Co., 515
N.W.2d 728, 735 (Mich. 1994), and because there is no evidence that our
Legislature intended to adopt Michigan common law, we have not followed
decisions of the Michigan courts in our interpretation of subsection
214(1)(A).  See Bureau, 678 A.2d at 589-90.  Because the statutory language
of subsection 214(1) is virtually identical to the Michigan statute,{5} however,
we may still look to decisions of Michigan courts for guidance when the
courts have applied an analysis that reflects the same policy and language as
Maine's statute. 
	[¶14]  The Michigan Supreme Court has not yet directly addressed the
reference point for the employee's residence in determining whether an
offer of employment was reasonable; however, a recent decision of the
Michigan Court of Appeals is on point.  See Jones-Jennings v. Hutzel Hosp.,
565 N.W.2d 680, 686-87 (Mich. Ct. App. 1997).  In that case, the employee
married after her injury and moved 142 miles away from her employer's
location.  After her relocation, she was offered suitable light-duty work by
her pre-injury employer.  The magistrate concluded that although the
employee had not yet obtained post-injury employment at the time of the
hearing, the Michigan employer had not offered the employee "reasonable
employment" because it was not within a reasonable distance from her
residence at the time of the offer.  The Appellate Division reversed, holding
that residence referred to the employee's residence at the time of the
injury.  The Michigan Court of Appeals, however, reversed the Appellate
Division, concluding that, as a matter of common usage, the term
"residence" refers to "the one place the employee actually and permanently
intends to reside, at the time the offer is made."  Id. at 686 (emphasis
added). 
	[¶15]  This debate within the Michigan system is illustrative of the
difficulties inherent in overlaying a single definition of residence on the
language of statutes that are silent on the point.  We decline to accept the
hard and fast rule adopted in Jones-Jennings.  Rather, we rely on the sound
discretion of the Board as factfinder to determine whether the residence
relevant to the job offer at hand is the residence of the employee at the time
of injury or at the time of the offer.

B.  Good and Reasonable Cause

	[¶16]  If the Board determines that a bona fide offer of "reasonable
employment" has been made, it must then determine whether the
employee declined that offer for "good and reasonable cause."  As always,
the Board must consider all facts relevant to the employee's decision to
decline the job offer.  When the employee has relocated, the Board may
again consider the reasons for the relocation.   
	[¶17]  The Michigan Supreme Court has considered this separate
issue on several occasions and its analysis in this area is instructive.  One
important Michigan case, Bower v. Whitehall Leather Co., 312 N.W.2d 640
(Mich. 1981), decided prior to the enactment of section 418.301(5)(a),
involved an employee who declined a reinstatement offer of light duty work
because he had found post-injury employment in Florida.  See Bower, 312
N.W.2d at 642-43.  The court held that the employee was justified in
refusing the favored work offer after accepting work in Florida, stating that
"initiative and industriousness, should be encouraged," and that "[t]o deny
benefits in the instant circumstances not only would punish this employee
for finding and holding substitute work, but also would severely undercut the
rehabilitative and mitigative purposes of the Act."  Id. at 648
	[¶18]  In a more recent decision, Pulver v. Dundee Cement Co., 515
N.W.2d 728 (Mich. 1994), the court held that the test for determining
"good and reasonable cause" may require consideration of the following
factors:

(1) the timing of the offer, (2) if the employee has moved, the
reasons for moving, (3) the diligence of the employee in trying
to return to work, (4) whether the employee has actually
returned to work with some other employer and, (5) whether
the effort, risk, sacrifice or expense is such that a reasonable
person would not accept the offer.

Id. at 735 (footnote omitted).  The court noted further that "[a]n attempt to
avoid a bona fide offer of reasonable employment by moving would never
constitute good and reasonable cause."  Id. at 735 n.12.
	[¶19]  Although the factors articulated by the Pulver court are not
intended to be exhaustive or conclusive, they represent a sound general
framework for decision making when the employee has refused an offer of
reasonable employment.  Those factors, however, are merely examples of
the facts to be considered by the Board.  "Not every personal consideration
will constitute good and reasonable cause entitling an employee to continued
benefits after a refusal of an offer of reasonable employment.  It is left to the
sound discretion of the factfinder to carefully examine the facts and
circumstances of each case to determine what is good and reasonable cause
in any given situation."  Id. at 735.

III.  The Board's Decision

	[¶20]  The Board made the following findings in determining that
Claw Island would be allowed to cease paying benefits to Thompson.  

While Employee was free to choose where he wanted to live, this
choice does not negate Employer's responsibility to try to return
Employee to the work force.  Neither should Employee's choice
to relocate render Employer's offer of suitable employment
'unsuitable[,]' simply because Employee has chosen to move too
far away to commute to the job.

Based on those and other findings, the Board concluded that the employer
made a bona fide offer of reasonable employment and that the employee
refused to accept the offer without good and reasonable cause.  These
conclusions indicate an erroneous understanding that the employee's
residence is necessarily determined with reference to the time of the injury
for purposes of determining whether the offer of reinstatement was
reasonable.  Because we have today rejected that rigid interpretation of
section 214(1), we conclude that the Board erred in construing the language
of section 214.  Moreover, the Board failed to undertake a full analysis of the
employee's reasons for refusing the offer of reinstatement.  We therefore
vacate the decision and remand the matter for further consideration
consistent with the two-part analysis set out here.  The Board may, in its
sole discretion, accept additional evidence into the record.
	The entry is:
The decision of the Workers' Compensation
Board vacated.  Remanded to the Workers'
Compensation Board for further proceedings
consistent with this decision.
Attorney for employee:	

Alan M. Harris, Esq., (orally)	
Bornstein & Hovermale	
P O Box 776	
Bangor, ME 04402	
	
Attorneys for employer:

Richard F. Van Antwerp, Esq.
Thomas R. Kelly, Esq., (orally)
Robinson Kriger & McCallum
P O Box 568
Portland, ME 04112-0568

FOOTNOTES******************************** {1} The opening sentence of the applicable statute in Keene provided: "If any injured employee refuses to accept an offer of suitable work, the employer or insurer may, in addition to exercising any other rights it may have, file a petition for a reduction of benefits." 39 M.R.S.A. § 66-A, amended by P.L. 1987, ch. 559, § B(35). {2} Our conclusion is also consistent with the Legislature's treatment of the predecessor to section 214(1), former 39 M.R.S.A. § 100. Section 100 was amended in 1987 to permit an employer to discontinue benefits upon the filing of a petition for review when an employee refuses an offer of work. See P.L. 1987, ch. 559, § B-41, codified as 39 M.R.S.A. § 100(4)(D)(1), amended by P.L. 1991, ch. 615, § D-21, repealed by P.L. 1991, ch. 885, § A-7. The amendment of section 66-A in 1987 to include the "upon the petition of the injured employee" language, together with the simultaneous amendment of section 100, evidenced a legislative intent to limit the application of 66-A to situations when an employee files for a petition for reinstatement, and to apply section 100 when an employee refuses an offer in the more general context. {3} Because section 218(5) does not apply, we need not determine in this case whether subsection 218(5) provides a different standard with regard to offers of reinstatement than subsection 214(1). {4} See Bureau v. Staffing Network, Inc., 678 A.2d 583, 589-90 n.2. (Me. 1996). {5} Mich. Comp. Laws Ann. § 418.301(5)(a), (9) (West 1997).