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WCB AD Affirms Award of Benefits After Employee Refused Work Per Doctors' Advice

The Maine Workers’ Compensation Board’s Appellate Division has just issued a new decision affirming a finding that the employee had "good and reasonable cause to decline a bona fide offer of reasonable employment, thereby shielding her from the forfeiture of benefits pursuant to 39-A MRSA §214(1)(A)."

In Sharon Burgett v. Northern Maine Medical Center, Ms. Burgett was a CNA who injured her low back moving a patient. She worked intermittently and NMMC offered her light-duty work, which she performed until she went out of work entirely, following the advice of her treating nurse practitioner. She got a new physician who also recommended that she stay out of work entirely, so she did, "essentially terminating her employment relationship with NMMC."

NMMC apparently filed a 21-day Certificate of Reduction/Suspension, but Ms. Burgett filed a Petition for Review and Request for Provisional Order, both of which Judge Hirtle granted. In granting the Petition for Review, Judge Hirtle ruled:

Given [that both] Ms. Burgett’s primary care providers . . . had advised her to stop working at the time of her refusal, I find that the effort, risk, sacrifice or expense associated with continuing to work for the Employer is such that a reasonable person would not accept the offer. Having weighed these factors identified by the Law Court [in Thompson], the Employer has not demonstrated on a more probable than not basis that Ms. Burgett refused its job offer without good and reasonable cause at any point up to the date of this decision.

The Appellate Division affirmed, ruling that Judge Hirtle's determination that “Ms. Burgett acted with good and reasonable cause when relying on the advice of her health care providers” was supported by competent evidence and that he correctly applied the law.

Although Ms. Burgett filed the petitions and was the moving party, the AD panel appears to have approved Judge Hirtle's assignment to NMMC of the burden of proving that her refusal was without good and reasonable cause (“The Employer has not demonstrated…”). Although the employer has the burden of proving that a job offer was bona fide, as in the 2008 Avramovic case, only the employee can demonstrate the "effort, risk, sacrifice or expense" to her of accepting the employment offer. The burden of proof was not directly addressed by the AD panel, however, so this decision should not have precedential value on that issue.

If you have any questions about this or any other case, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law