David Gott v. Dept. of Corrections
State of Maine
August 27, 2021
CategoriesPartial Benefits / Refusal of Employment Post-Injury Earnings Partial Benefits / Refusal of Employment Post-Injury Earnings
Summary from the Troubh Heisler Attorneys
The Appellate Division affirms ALJ Goodnough's decision granting Mr. Gott's petitions for award finding that the employee remained partially incapacitated following his termination of employment, rejecting the employer's argument that the termination was a refusal of a bona fide offer of reasonable employment without good cause.
In 2010 Mr. Gott worked as a correctional officer for the employer. He was also concurrently employed as a driver for Hannaford. He injured his left knee on August 3, 2010 and his right knee on August 24, 2010. Following surgery he returned to work in the position of Trade Instructor, which was within his physical restrictions. He continued to work for Hannaford.
In 2017 Mr. Gott was involved in disciplinary proceedings with the Dept. of Corrections, from which the parties agreed to a demotion and two week suspension. The Dept. asked Mr. Gott to sign a Memorandum indicating the demotion was voluntary. He disagreed it was voluntary and refused to sign. He was then terminated as a result. He continued to work for Hannaford.
The ALJ found that while Mr. Gott was partially disabled from performing his pre-injury work as a correctional officer, he was able to perform the Trade Instructor job up to the termination. But because Mr. Gott was employed in that position while the Memorandum was under discussion, and it was the Dept. that exercised its option to terminate based on the refusal to sign, the ALJ found this was not a resignation and therefore Sec. 214(1)(A) did not apply. The ALJ noted that the employer did not argue the employee lost employment through his own fault under Sec. 214(1(D).
The Dept. argued it was legal error for the ALJ to award partial benefits because Mr. Gott failed to establish that any loss of earnings was due to his injuries. It also maintained that his post injury employment as a Trade Instructor demonstrated what he was "able to earn after the injury" as contemplated by Sec. 214, and that any loss of earnings was the result of being terminated for cause.
The Appellate Division held that the ALJ was correct to award partial benefits because Mr. Gott could no longer perform his pre-injury employment. Because Mr. Gott was terminated he did not refuse employment. It was not error for the ALJ to use Mr. Gott's post termination earnings with Hannaford as prima facie evidence of his ability to earn which the Dept. did not counter with labor market evidence. While the ALJ could have considered what Mr. Gott was able to earn in his post injury pre termination job of Trade Instructor, he was not required to and the panel was not going to substitute its judgment for that of the ALJ.