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Holt. S.A.D. # 6
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 146
Docket:	WCB-00-553	
Argued:	September 14, 2001
Decided:	October 22, 2001




	[¶1]  School Administrative District No. 6 and its workers'
compensation insurer, Maine School Management Association, (collectively
"SAD 6"), appeal from the decision of a Hearing Officer of the Workers'
Compensation Board awarding Stephanie Holt partial incapacity
compensation.  Because Holt's voluntary resignation of reasonable post-injury
employment without good and reasonable cause constituted a refusal of an
offer of bona fide employment pursuant to 39-A M.R.S.A. § 214(1)(A) (2001),
we vacate the decision of the Hearing Officer.
	[¶2]  The Hearing Officer found the following facts, which the
parties do not contest:  Holt, who was the head of the English Department
for sixteen of the eighteen years she taught at Bonny Eagle High School,
suffered a compensable injury to her right knee on June 2, 1994.  Holt
continued her employment with SAD 6 following her injury, and the
employer made some modifications to the workplace to accommodate her
work restrictions.  Holt began a paid administrative leave in June 1996 for
reasons unrelated to her injury, and voluntarily resigned in October 1996. 
	[¶3]  In 1998 Holt petitioned the Board for an award of
compensation for her 1994 injury.  The Hearing Officer granted Holt's
petition and awarded her partial incapacity benefits based on an imputed
post-injury capacity to work forty hours a week earning $8.00 an hour.  See
39-A M.R.S.A. §§ 213, 214 (2001); Bureau v. Staffing Network, Inc., 678
A.2d 583, 588-89 (Me. 1996).  The Hearing Officer rejected the employer's
contention that Holt's voluntary resignation of her post-injury employment
constituted a refusal of a bona fide offer of employment pursuant to section
214(1)(A).  In response to the employer's motion for further findings of fact
and conclusions of law, the Hearing Officer stated that "[section] 214 of the
Act does not apply where no compensation is being paid."  We granted the
employer's petition for appellate review pursuant to 39-A M.R.S.A. § 322
	Section 214 provides, in pertinent part:
§ 214.  Determination of partial incapacity

	   1. Benefit determination.  While the incapacity is partial,
the employer shall pay the injured employee benefits as
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
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), (5) (2001).  As we have stated, the purpose of
section 214(1)(A) is
to provide an opportunity for employers to mitigate workers'
compensation benefits by offering injured employees
reinstatement employment.  The statute is also intended 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.
Loud v. Kezar Falls Woolen Co., 1999 ME 118, ¶ 6, 735 A.2d 965, 967.  
	[¶4]  We first must consider whether the Hearing Officer erred by
concluding that section 214(1)(A) is only applicable when an employer has
commenced payment of incapacity benefits.  Holt argues that the Hearing
Officer's interpretation is supported, in part, by the language of section
214(1)(A) providing that an employee who has refused a bona fide offer
without good and reasonable cause "is no longer entitled to any wage loss
benefits under this Act during the period of the refusal."  (emphasis added).  
	[¶5]  The key language in section 214(1)(A) is not the phrase "no
longer," but the term "entitled."  Employees may be entitled to benefits
prior to their actual receipt of benefits.  The Act suggests that the
Legislature knew the difference between an employee's "entitlement" to
benefits and the "payment" or "receipt" of benefits.  For example, 39-A
M.R.S.A. § 201 (2001) provides when an employee is "entitled" to benefits
based on the work-related nature of his or her injury; by contrast, 39-A
M.R.S.A. § 205(9) (2001) provides when an employer may discontinue
"payment" of benefits which have already commenced.  Because section
214(1)(A) addresses an employee's entitlement to benefits, it applies
whether or not the employer has commenced payment of benefits at the
time of the refusal.{1}
	[¶6]  Because we conclude that section 214(1)(A) is applicable in
cases when an employer has not yet commenced payment of benefits, we
next address whether section 214(1)(A) is available when an employee
voluntarily resigns from post-injury employment.  Holt contends that, as a
matter of common usage, an employee's voluntary resignation from post-
injury employment cannot be regarded as a "refusal" of a bona fide "offer" of
	[¶7]  An existing employment relationship, however, implicitly
constitutes an ongoing "offer" of employment, thereby obviating the need
for an employer to make a formal, affirmative "offer" of employment. 
Similarly, when an employee resigns from a current employment
relationship, the employee, in effect, rejects the employer's ongoing offer to
come to work.  See Perez v. Keeler Brass Co., 608 N.W.2d 45, 52 (Mich.
2000).{2}  Our conclusion is supported by the purpose of the statute.  To
require employees to accept bona fide offers of reasonable employment in
order to retain entitlement to benefits pursuant to section 214(1)(A), but
then to permit employees to subsequently quit that employment without
good and reasonable cause, could easily defeat the purpose of the statute.
	[¶8]  In the present case, the Hearing Officer found Holt's
resignation to have been voluntary and not compelled by reason of her work-
related injury or any other good and reasonable cause.  Moreover, there is no
dispute that Holt's post-injury employment by SAD 6 for two years after her
work-related injury was "reasonable employment" as that term is defined in
39-A M.R.S.A. § 214(5) (2001).  Accordingly, we conclude that Holt has
relinquished her entitlement to incapacity benefits during the period of her
refusal pursuant to section 214(1).{3}
	The entry is:
Decision of the Hearing Officer is vacated.  Remanded to
the Workers' Compensation Board for further proceedings
consistent with the decision herein.
Attorneys for employee: Alexander F. McCann, Esq. James J. MacAdam, Esq. MacAdam McCann 236 Gannett Drive South Portland, ME 04106 Attorneys for defendant: Thomas R. Kelly, Esq. (orally) Johm M. McCallum, Esq. Darby C. Urey, Esq. Robinson Kriger & McCallum P O Box 568 Portland, ME 04112
FOOTNOTES******************************** {*} Wathen, C.J., sat at oral argument and participated in the initial conference but resigned before this opinion was adopted. {1} . Holt also relies on subsections 214(2), (3), (4), discussing the role of the Bureau of Employment Services in cases involving payment of partial incapacity benefits. 39-A M.R.S.A. §§ 214(2), (3), (4) (2001). These subsections provide: 2. Notice to Bureau of Employment Services. An insurance carrier or self-insurer shall notify the Bureau of Employment Services of the name of any injured employee who is unemployed and to whom the insurance carrier or self- insurer is paying benefits under this Act. 3. Priority. The Bureau of Employment Services shall give priority to finding employment for those persons whose names are supplied under subsection 2. 4. Notice of refusal; termination of benefits. The Bureau of Employment Services shall notify the board in writing of the name of any employee who refuses any bona fide offer of reasonable employment. Upon notification to the board, the board shall notify the insurance carrier or self-insurer who shall terminate the benefits of the employee pursuant to subsection 1, paragraph A. Id. (emphasis added). Holt contends that reference in subsection 4 to the procedure for an employer's termination of benefits pursuant to section 214(1)(A), implies that the employer must have already commenced benefits pursuant to subsection 2 for section 214(1)(A) to apply. We disagree. The plain language of section 214(1)(A) does not suggest that it is applicable only after the Bureau of Employment Services becomes involved in an employee's case. Similarly, reference to the "termination" of benefits in subsection 4 does not preclude application of section 214(1)(A) to cases when benefits have not yet commenced. More importantly, the employee's interpretation would severely limit the application of section 214(1)(A) and frustrate its clear purpose to encourage re-employment and permit employers to terminate benefits when employees unreasonably refuse work. {2} . The employee in Perez returned to work for his employer on light duty following his injury. Perez v. Keeler Brass Co., 608 N.W.2d 45, 47 (Mich. 2000). A few months later, he quit to move to a different state, but refused to sign a "quit slip," so the employer terminated him formally after two or three days. Id. The Michigan Supreme Court concluded that the employee refused reasonable employment by quitting, thus preventing him from receiving benefits. Id. at 50. {3} . SAD 6 makes an additional argument that it should recover "overpayments" made during the pendency of the appeal. Section 324(1) provides, in pertinent part: If the board enters a decision awarding compensation and an appeal is filed with the Law Court pursuant to section 322, payments may not be suspended while the appeal is pending. The employer or insurer may recover from an employee payments made pending appeal to the Law Court if and to the extent that the Law Court has decided that the employee was not entitled to the compensation paid. The board has full jurisdiction to determine the amount of overpayment, if any, and the amount and schedule of repayment, if any. The board, in determining whether or not repayment should be made and the extent and schedule of repayment, shall consider the financial situation of the employee and the employee's family and may not order repayment that would work hardship or injustice. 39-A M.R.S.A. § 324(1) (2001) (emphasis added). Because section 324 makes clear that the Board has "full jurisdiction" of the issue of overpayment, which will depend largely on the ability of the employee to pay, we decline to reach the issue of a possible overpayment in this appeal.