Tiner v. Oak Grove Center
November 20, 2018
CategoriesWork Search Partial Benefits / Refusal of Employment
CNA Refusal of Employment Offer Suitable Work Work Search Change of Circumstances
Summary from the Troubh Heisler Attorneys
Ms. Tiner worked as a CNA and sustained a work injury in 2013 which the appellate decision did not detail. In 2016, Judge Elwin had issued a decree granting Ms. Tiner the protection of the Act but ordering no incapacity benefits, finding that she had refused suitable work and that her injury caused no earning incapacity. Ms. Tiner then undertook a work search and filed a new petition.
She argued that, among other efforts, she had contacted Oak Grove's "related facilities," applying for advertised positions, but Judge Elwin found that she never told them she was a former employee, and she presented her restrictions in her initial contacts with Oak Grove and other employers. Judge Elwin again denied her petition, finding that she still had not ended her refusal of Oak Grove's previously-offered job, and that her work search had not demonstrated any change in her economic circumstances. Ms. Tiner appealed.
The Appellate Division panel affirmed the decision, citing the Maine Supreme Court's 1999 Loud decision requiring the employee to take an "affirmative step" to indicate to her employer a willingness to accept a job she previously rejected. The panel noted that, because Ms. Tiner did not identify herself to Oak Grove as an injured former-employee trying to return to work, her inquiry "fell short of the level of communication required" to end the period of refusal. The panel also noted that, because Ms. Tiner "regularly presented her restrictions to employers immediately at initial contact, and before any application or resume showing positive qualifications," Judge Elwin could reasonably conclude that her work search was insufficient to show a change of circumstances.