Avramovic v. R.C. Moore Transp., Inc. - 2008 ME 140, 954 A.2d 449

Rule:

An employee who receives a bona fide offer of reasonable employment from the previous employer or another employer, and who refuses that employment without good and reasonable cause is not entitled to receive wage loss benefits during the period of refusal. Me. Rev. Stat. Ann. tit. 39-A, § 214(1)(A) (2007). Two purposes have been identified underlying § 214(1)(A): (1) to provide an opportunity for employers to mitigate workers' compensation benefits by offering injured employees reinstatement employment, and (2) to encourage injured employees to return to work. Accordingly, once the employer makes a bona fide offer of reasonable employment, the employee is subject to a reciprocal obligation to accept that offer, absent good and reasonable cause for refusal.

Facts:

Dragoslav Avramovic, fifty-eight years old, moved from Germany to the United States in 1998, and began working as a truck driver for R.C. Moore in 2000. When he came to the United States, his English was limited, but he now can communicate fairly well in English. Avramovic injured his back at work in October 2003, when he jumped down from a trailer to pull down the trailer door. He received medical treatment and returned to work. The following month, he reinjured his back at work while pulling a wooden ramp to place under the wheels of his trailer. He suffered a large disk herniation that required surgery. He returned to work, with restrictions, in February 2004. His pain increased and he went out of work again in March 2004. Thereafter, he was unable to return to truck driving.

In July 2005, R.C. Moore gave Avramovic a part-time position in its accounts receivable department, where he worked varying hours as tolerated, up to six hours a day. By mid-2006, his pain was increasing and his doctors restricted his work to twenty hours per week. R.C. Moore offered to keep him on, but needed him for a minimum of thirty hours per week. Avramovic declined that offer because he could not tolerate working thirty hours, and his employment was terminated in July 2006. Avramovic searched for other employment within his restrictions, but was unsuccessful. R.C. Moore contacted Expediter Corporation, a national company that assists employers in accommodating injured employees, to find employment for Avramovic within his restrictions. Expediter offered a light duty, home-based employment for Avramovic with Information Direct, Inc., (IDI) conducting telephone surveys. The position was offered to Avramovic based on information provided by R.C. Moore's attorney, and without any interview or direct contact with Avramovic. This job was alleged to be within Avramovic's restrictions and approved by his doctor, if it was restricted to four hours per day and twenty hours per week. Avramovic did not accept the offer of employment with IDI.

Avramovic filed a petition for award and a petition for review related to the October and November 2003 dates of injury. He sought total incapacity benefits or 100% partial incapacity benefits. He presented evidence of a work search that included 300 job applications and thirteen personal interviews, to demonstrate that work was unavailable to him in his local community as a result of his work injury. Of Avramovic's job applications, 250 were in the fields of accounting, bookkeeping, and financial services, and fifty job applications were in other areas of employment, including temporary staffing services, clerical and office positions, and data entry. The hearing officer determined that Avramovic suffered a single injury in October 2003, and that he was currently capable of working only twenty hours per week. Accordingly, the hearing officer awarded Avramovic partial incapacity benefits, but rejected his request for 100% partial incapacity benefits. The hearing officer also found that Avramovic was not barred from receiving future benefits because he refused the Expediter job offer. 

Issue:

Is Avramovic barred from collecting workers’ compensation benefits after refusing a bona fide offer of reasonable employment from Expediter?

Answer:

No.

Conclusion:

The hearing officer found that the job offered to Avramovic was not a bona fide offer of reasonable employment because the employer did not prove that the position offered is actually available in the competitive labor market. The hearing officer found that the employer presented insufficient evidence about IDI, including the type of business it is; how long it has been in operation; how many employees it has hired through Expediter; whether they keep their jobs beyond the training period; and the type of work the employee would be hired to perform. The hearing officer stated: "Without some more specific information about his duties and how they relate to the company's business and the broader market I am unable to conclude that it is more likely than not that this specific job offer is a 'bona fide offer of reasonable employment' as required by 39-A M.R.S. § 214(1)(A)." Whether a burden of proof has been satisfied depends ultimately on the persuasiveness of evidence. The court’s role on appeal is limited to assuring that a hearing officer's "factual findings are supported by competent evidence, that [the] decision involved no misconception of applicable law and that the application of the law to the facts was neither arbitrary nor without rational foundation." The hearing officer reasonably found that R.C. Moore failed to meet its burden of proof on the issue of an offer of reasonable employment.