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Thompson v. Claw Island Foods5/8/1998
capacity, whether it poses a threat to the employee's health and safety, and whether it is within a reasonable distance of the employee's residence. Because subsection 214(5) gives no guidance as to whether "employee's residence" refers to the residence at the time of the injury or at the time of the job offer, the Board must first determine which residence is controlling before deciding whether the offered position is within a reasonable distance of that residence.
We have not had occasion to consider the reference point for determining the employee's residence for purposes of section 214. The Legislature intended, whenever possible, for such issues to be addressed to the Board; however, while ambiguities in the Act may be addressed by the Board, either through rulemaking, see 39-A M.R.S.A. Section 152(2) (Supp. 1997), or through the exercise of its appellate review authority, see 39-A M.R.S.A. Section 320 (Supp. 1997), the full Board has not had an opportunity to address this issue. Therefore, to foster consistency in the application of section 214, the Board should consider the following factors in determining the employee's residence for purposes of section 214.
Both the employer and the employee ask this Court to define "employee's residence" for purposes of subsection 214(5) to have a single meaning, regardless of the facts of an individual case. The employee asks the Court to define residence as his residence at the time of the job offer; the employer suggests that we define it as his residence at the time of the injury. Although we recognize the ease of application that may result from a single judicially created definition of residence, we conclude that such a definition is neither contemplated by nor consistent with the language of the Act.
A definition of residence that refers always to the residence at the time of the offer would effectively allow any employee to move away from the employer's work site and thereby render all job offers from that employer unreasonable. Similarly, a definition of residence that refers always to the residence at the time of the injury would result in the certain loss of benefits by any employee who relocates away from the employer's work site if a job were offered at that work site, regardless of the employee's employment related motivation in relocating. Either result is inconsistent with the goals of the Act. It is incumbent on the Board, therefore, to determine which residence is applicable from the facts before it in each case.
In making such determinations the Board should consider all factors relevant to the employee's move. When the employment is offered by the enterprise at which the employee worked at the time of injury, and the position offered is located at the place of employment at the time of the injury, the Board may determine that the "residence" referenced by subsection 214(5) is the employee's residence at the time of that injury unless it determines that the employee moved for reasons consistent with the goals of the Act. Among the facts that will be relevant to the Board's determination are the employee's motivation for the move, the length of time between the injury and the offer, and whether a reasonable employee would have understood that an offer of reinstatement at that site was possible. In considering the employee's motivation for moving, the Board should consider whether a primary motivation for the move was the reasonable expectation that the move would increase job opportunities, increase opportunities for productive rehabilitation, facilitate a return to the job market, or advance some other compelling purpose consistent with the goals of the Act.
As we have previously recog
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