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Maine Workers’ Compensation Board decision emphasizes importance of good faith work search in maximizing benefits

In Johnson v. True North Salmon, the Maine Workers’ Compensation Board emphasized the importance of performing a good faith work search when seeking 100% partial incapacity benefits under Section 213. A 50 year-old laborer in a fish processing plant, Johnson suffered a repetitive stress injury to his elbow from “pin boning” several hundred fish a day at work. Johnson did not have a high school diploma and had worked in jobs requiring heavy or repetitive use of both hands for his entire life. Prior to his injury, Johnson earned $480 a week at True North Salmon. Subsequently, his doctor diagnosed him with epicondylitis causing swelling and pain and gave him work restrictions of no heavy or repetitive work with his right hand.

Because he could not return to pin boning and the company had no light duty work for him, Johnson asked the Board to award 100% partial incapacity benefits under Section 213. To obtain 100% benefits for only partial incapacity, Johnson had to show, through work search or other vocational evidence, that work was unavailable within his local community as a result of his work injury. Johnson produced evidence of a work search conducted over the course of five months, but the Board declined to award 100% benefits because Johnson listed several employers repeatedly, week after week, most of which were not actually advertising job openings, and he did not use help wanted ads or other employment resources. Instead, the Board found that Johnson could earn $225-250 per week and reduced his benefits accordingly. The Board did take into account Johnson’s limitations with respect to the use of his right hand as a result of the work injury, his age, lack of education, lack of experience, training or transferable skills, and the fact that he lives in an isolated geographic area of the State with a poor labor market, finding that these factors, combined with his work injury, made it unlikely that he would be able to find steady, full-time employment. However, the Board felt that Johnson had not met his burden of proof to show that he looked for work in good faith.

This decision emphasizes the importance of a good faith work search for all partially disabled claimants seeking 100% benefits and shows the degree to which the Law Court’s decision in Monaghan v. Jordan’s Meats influences the hearing officers in their decisions. In Monaghan, the Law Court gave a thorough analysis of the work search rule in workers’ compensation cases. The Court explained that whether an injured employee receives total or partial incapacity benefits depends on the extent to which the employee retains the ability to earn incomes after a workplace injury. The employee’s post-injury earning capacity is based on both the employee’s physical capacity to earn wages, and (2) the availability of work within the employee’s physical limitations. An employee who retains some ability to earn may nevertheless be entitled to receive the full amount of workers’ compensation benefits, with no deduction for earning capacity, if the persisting effects of the work-related injury prevent the employee from engaging in any regular paying work.

There are three ways in which an injured employee can show entitlement to the full amount of workers’ compensation benefits. First, an employee who demonstrates a total physical incapacity, that is, the medically demonstrated lack of the physical ability to earn, can prove entitlement to “total” incapacity benefits pursuant to Section 212 without a showing of any work search or other evidence that work is unavailable.
Second, in limited situations, an employee suffering only partial incapacity to earn may be entitled to total benefits pursuant to Section 212 if the employee can establish both (1) the unavailability of work within the employee’s local community, and (2) the physical inability to perform full-time work in the statewide labor market, regardless of availability. Employees who are totally medically disabled under Section 212 are not subject to the 10-year time limit on receiving benefits.

Third, a partially incapacitated employee may be entitled to 100% partial incapacity benefits pursuant to Section 213 based on the combination of a partially incapacitating work injury and the loss of employment opportunities that are attributable to that injury. In order to obtain the 100% benefit, it must be established, pursuant to the “work search rule” that work is unavailable within the employee’s local community as a result of the work injury. When the employee is the petitioning party, the employee has the ultimate burden of proof to show that work is unavailable as a result of the work injury within the employee’s local community.

When an employee attempts to show the unavailability of work through work search evidence, the work search must be adequate as a matter of law. An adequate work search should disclose that the worker has made a reasonable exploration of the labor market in his community for the kind of work he has regained some ability to perform, and that he was unable to obtain such work for pay, either because no stable market for it existed or, if there was a stable market, the work was not available to him because of his continuing limitations from the work injury which prevented him from doing it. There are a number of factors the Board will consider when deciding whether an employee has proven his entitlement to 100% benefits for a partial injury claim:

(1) The number of inquiries made or applications submitted by an employee

(2) Whether the search was undertaken in good faith

(3) Whether the search was too restrictive

(4) Whether the search was limited solely to employers who were not advertising job openings or whether the employee also made appropriate use of help wanted ads, career center services or other job resources

(5) Whether the search was targeted to work the employee is capable of performing

(6) Whether the employee over-emphasized work restrictions when applying for jobs

(7) Whether the employee engaged in other efforts to find employment or increase prospects for employment such as taking classes or volunteering

(8) The employee’s personal characteristics such as age, training, education, and work
history

(9) The size of the job market in the employee’s geographic area.

Partnering with Maine Employee Rights Group will give you the best chance of proving there is no work for you in your community as a result of your injury and getting top compensation to help you and your family get by until you get better. If you have been injured at work, call Adrienne Hansen at the Maine Employee Rights Group for a free telephone consultation at 1-800-490-5218.