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Thompson v. Claw Island Foods5/8/1998
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39-A M.R.S.A. Section 218. Pursuant to the introductory language, " pon the petition of an injured employee," subsection 218(5) applies only in the context of a petition for reinstatement. This interpretation is consistent with the heading of subsection (5), "Failure to comply," indicating that the subsection only applies in the event of an employer or employee's actual failure to comply with the obligations of formal reinstatement procedure after a petition for reinstatement has been filed. See 39-A M.R.S.A. Section 218.
Contrary to Claw Island's contention, this interpretation of the plain language of section 218 is not inconsistent with our interpretation of former 39 M.R.S.A. Section 66-A. In Keene v. Fairchild Co., 593 A.2d 655, 657-58 (Me. 1991), we concluded that, pursuant to former 39 M.R.S.A. Section 66-A, prior to its amendment by P.L. 1987, ch. 559, Section B(35), the employer could discontinue benefits after the employee refused an offer of reinstatement, even in the absence of a petition for reinstatement. See Keene, 593 A.2d at 656-67. Unlike section 218, however, the reinstatement provision at issue in Keene did not include the defining language, " pon the petition of an injured employee." This language was not added to former section 66-A until 1987. See P.L. 1987, ch. 559, Section B(35), repealed by P.L. 1991, ch. 885, Section A-7. We have not interpreted former section 66-A after the introduction of that language in 1987.
Because section 218 unequivocally applies only "upon petition of an injured employee," the Board did not err by concluding that because Thompson did not file a petition for reinstatement, subsection 218(5) does not apply and the issue is governed exclusively by section 214. II. 39-A M.R.S.A. Section 214(1)(A)
In applying section 214, the Board is required to undertake a two-part analysis, reviewing both the employer's actions in making the job offer and the employee's actions in declining that offer. Section 214 provides, in pertinent part:
Section 214. Determination of partial incapacity
1. Benefit determination. 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 Services 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.
5. Reasonable employment defined. 'Reasonable employ- ment,' as used in this section, means any work that is within the employee's capacity to perform that poses no clear and proximate threat to the employee's health and safety and that is within a reasonable distance from that employee's residence. The employee's capacity to perform may not be limited to jobs in work suitable to the employee's qualification and training.
39-A M.R.S.A. Section 214. Pursuant to these provisions, when confronted with an employee's decision to decline a job offer, from whatever source, the Board must determine first, whether the offer was a "bona fide offer of reasonable employment" and second, whether the employee refused that offer without "good and reasonable cause." A. Bona Fide Offer of Reasonable Employment
When the Board is called upon to determine whether the employee received a bona fide offer of reasonable employment, it must consider each of the factors set out in subsection 214(5), that is, whether the work falls within the employee's work
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