is the continued
existence of the so-called "work search" requirement in
determining injured workers' entitlement to benefits for partial
incapacity pursuant to the Maine Workers'  Compensation  Act of
1992, 39-A M.R.S.A. § 101 et seq. (Supp. 1995), and the
interpretation of 39-A M.R.S.A. § 213, 214 (Supp. 1995). The
employers of Ghyslaine Bureau and Renea Warman appeal from
decisions of the Workers' Compensation Board relieving the
employees from establishing the unavailability of post-injury
employment in order to receive the maximum level of partial
incapacity benefits provided in sections 213 and 214. The
employer of Michael Caiazzo appeals from a Board ruling that the
employee's involuntary termination for cause from post-injury
employment did not constitute a "refusal" of a bona fide offer of
work entitling the employer to suspend benefits pursuant to
section 214(1)(A). We conclude that an employee seeking the
maximum level of benefits for partial incapacity compensation
pursuant to section 213, bears the initial burden of producing
evidence that work is unavailable as a result of the injury. We
therefore vacate the decisions of the Board with respect to
Bureau and Warman. We agree with the Board, however, that
termination for cause does not constitute a refusal of a bona
fide offer of employment for purposes of section 214(1)(A). We
therefore affirm the decision of the Board with respect to
Caiazzo.


I.




Ghyslaine Bureau and Renea Warman suffered work-injuries after the effective date of the 1992 Act. Maine Workers'  Compensation  Act of 1992, P.L. 1991, ch. 885 (effective January 1, 1993). Bureau filed a petition for award and Warman filed a petition for review after her employer unilaterally reduced benefits to reflect seventy-five percent partial incapacity. In each case, a hearing officer granted the petition, concluding that although the employees were partially incapacitated by their injuries and had not established a good faith search for post-injury employment, they were entitled to the maximum amount of benefits provided by section 213. The respective hearing officers concluded that section 214 provided the "exclusive" method for determining an employee's entitlement to partial benefits and that " either section 213   214 require (or even suggest for that matter), as a condition precedent for the receipt of total incapacity benefits, a demonstration by the employee of a good faith search for work." We granted the employers' petitions for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1995).




The provisions of the 1992 Act pertaining to partial incapacity are as follows:




  While the incapacity for work is partial, the employer shall
  pay the injured employee a weekly  compensation  equal to 80% of
  the difference between the injured employee's after-tax average
  weekly wage before the 


39-A M.R.S.A. § 213(1) (Supp. 1995). (Emphasis added).




  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 Security 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.



    B.  If an employee is employed at any job and the average
  weekly wage of the employee is less than that which the
  employee received before the injury, the employee is entitled


Page 1 2 3 4 5 6 
Maine Personal Injury Attorneys
						  
						Personal Injury Lawyers