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Roe v. Yarmouth Lumber11/20/2001
of the refusal.
5. Reasonable employment defined. "Reasonable employment," 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. §§ 214(1)(A) & (5) (2001).
Pursuant to section 205 of the Act, employers can voluntarily pay benefits in the absence of a decree or an approved agreement, without accepting liability for the work-injury. 39-A M.R.S.A. § 205 (2001). This procedure is sometimes referred to as "payment without prejudice." See, e.g., Goff v. Cent. Maine Power Co., 1998 ME 269, 1, 721 A.2d 182, 183; Libby v. Boise Cascade Corp., 1998 ME 89, 1, 709 A.2d 737, 738. Employers paying benefits "without prejudice," may terminate those benefits after providing 21-day written notice to the Board and the employee. 39-A M.R.S.A. § 205(9)(B)(1) (2001). By contrast, when there is a Board decree or formal agreement establishing liability for an injury and the employer is paying benefits "with prejudice," the employer may not terminate or reduce benefits without first filing a petition with the Board and waiting until a final resolution of the dispute. 39-A M.R.S.A. § 205(9)(B)(2) (2001).
The Board has promulgated rules governing procedures for payment of incapacity or death benefits with or without prejudice. The rule provides, in pertinent part:
Claims for Incapacity and Death Benefits
1. Within 14 days of notice or knowledge of a claim for incapacity or death benefits for a work-related injury, the employer will:
A. Accept the claim and file a Memorandum of Payment checking "Accepted" in Box 18; or
B. Pay without prejudice and file a Memorandum of Payment checking "Voluntary Payment Pending Investigation" in Box 18; or
C. Deny the claim and file a Notice of Controversy.
§ 2. Payment without prejudice
1. Payment without prejudice does not constitute a payment scheme.
2. If no payment scheme exists, the employer may reduce or suspend the payment of benefits pursuant to 39-A M.R.S.A. § 205(9)(B)(1). The provisions of 39-A M.R.S.A. § 214 do not apply to compensation payments that are made without prejudice.
Me. W.C.B. Rule ch. 1, §§ 1, 2 (emphasis added).
Relying on Board rule ch. 1, § 2, Roe contends that section 214 does not apply when compensation payments are made without prejudice. Roe contends that because he had been receiving benefits "without prejudice" at the time of the April 1997 offer, the subsection 214(1) penalty for refusal of a bona fide reinstatement offer without good and reasonable cause does not apply. We disagree.
The Board did not construe its rule as precluding the application of § 214(1)(A) to the facts extant in this case, and we similarly decline to accept the employee's interpretation of that rule. Section 214(1)(A), by its plain language, is not contingent on the type of employer payment, nor is its application dependent on there being any employer payment at all. Section 214(1)(A) provides that an employee who refuses a bona fide offer of reasonable employment without good and reasonable cause is "no longer entitled to benefits." 39-A M.R.S.A. § 214(1)(A) (emphasis added). As we have recently held, " mployees may be entitled to benefits prior to their actual receipt of benefits," and, therefore, an employer may invoke section 214(1)(A) even in the absence of any employer
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