BUREAU v. STAFFING NETWORK
6/21/1996
st-injury employment for fault. See Cote v. Great No. Paper Co., 611 A.2d 58, 59 (Me. 1992) (employee's termination for failure of a drug test did not constitute grounds for reducing benefits); Cousins v. Georgia-Pacific Corp., 599 A.2d 73, 74 (Me. 1991) (employee entitled to restoration of partial incapacity benefits despite having been fired for dishonesty; the reason for termination "is irrelevant if the employee sustained continued incapacity from a compensable injury").
The employer contends, however, that because section 214 is
based on the Michigan statute, see Statement of Fact, L.D. 2364
(115th Legis. 1991) (" ection 214 is derived from Michigan §
418.301 and determines the amount of partial benefits that are
due"), case law from that jurisdiction is controlling. Decisions
of the Michigan courts addressing this issue have been influenced
by the "favored work doctrine" that is part of their common law.
That doctrine is designed to permit employers to reduce benefits
by offering "favored," or "light-duty" work to injured employees,
and to prevent malingering by
The Michigan Supreme Court, however, has never held that section 418.301 is a full codification of the favored work doctrine, see Pulver v. Dundee Cement Co., 445 Mich. 68, 515 N.W.2d 728, 732 (1994) (suggesting that section 418.301(5) is a "partial codification" of the doctrine), and the statutory language does not support that conclusion. Notwithstanding the common law of Michigan, we hold that an employee's termination for cause is not included among the statutory grounds for suspending benefits pursuant to subsection 214(1)(A). Considering the plain language of our statute, we are unable to equate an employee's termination for cause with a "refusal" of an "offer" of employment. Moreover, there is no legislative history that the Maine Legislature intended to adopt Michigan's common law.
The employer's remaining arguments are without merit. It contends that the Board had no jurisdiction to issue a provisional order of benefits pending resolution of a petition for review later than 21 days after the petition was filed. 39-A M.R.S.A. § 205(9)(D) (Supp. 1995). There is no penalty in the statute for failure to enter a provisional award within twenty-one days after an employee files a petition for review. We do not create a remedy or penalty when a statute is silent regarding the sanction for failure of an agency to timely act. Eastern Maine Med. Ctr. v. Maine Health Care Fin. Comm'n, 601 A.2d 99, 101 (Me. 1992). Moreover, it makes little sense to visit the error of a hearing officer on an employee who was the intended beneficiary of the hearing officer's action.
The employer next contends that it is entitled to recover overpayments made under a provisional order during the pendency of the petition for review. We have stated that the Board "has no authority to order the reimbursement of overpayments made prior to appeal other than that which is expressly granted in the Act." LaRochelle, 655 A.2d at 1246 (citing American Mut. Ins. Co. v. Murray, 420 A.2d 251, 252 (Me. 1980)). In LaRochelle, we held that the employer's entitlement to recovery of overpayments "pending appeal" does not permit the employer to recover overpayments made during the pendency of a motion of findings of fact. Id. at 1247-48. Section 104-A has been carried forward into the new Act essentially unchanged. 39-A M.R.S.A. § 324 (Supp. 1995). There is nothing in the plain language of sections 205 or 324 to suggest that an employer may receive reimbursement for overpayments made during the pendency of a petition for review and we therefore conclude that no such reimbursement is available.
Finally, the employer contends that
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