Avramovic v. R.C. Moore Transp., Inc.
| Decision Date | 09 September 2008 |
| Docket Number | No. WCB-07-680.,WCB-07-680. |
| Citation | 2008 ME 140,954 A.2d 449 |
| Parties | Dragoslav AVRAMOVIC v. R.C. MOORE TRANSPORTATION, INC., et al. |
| Court | Maine Supreme Court |
James J. MacAdam, Esq., Nathan A. Jury, Esq. (orally), David E. Hirtle, Esq., MacAdam Law Offices, P.A., Portland, ME, for Dragoslav Avramovic.
Evan M. Hansen, Esq., James C. Bush, Esq. (orally), Preti Flaherty Beliveau & Pachios, LLP, Portland, ME, for R.C. Moore Transportation, Inc. and The MMTA Workers' Compensation Trust.
Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.
[¶ 1] Dragoslav Avramovic appeals from a decision of a Workers' Compensation Board hearing officer (Collier, HO) awarding him partial incapacity benefits for a 2003 back injury incurred while working for R.C. Moore Transportation. Avramovic contends that he should have been awarded 100% partial incapacity benefits because he proved that work is unavailable to him as a result of the work injury, and that the hearing officer wrongly applied the law to analyze his work search. In a cross-appeal, R.C. Moore contends that the hearing officer erred when determining that it did not meet its burden of proof that a job offer from Expediter Corporation was a bona fide offer of reasonable employment pursuant to 39-A M.R.S. § 214(1)(A) (2007). We affirm the hearing officer's factual determination that the job offer was not an offer of reasonable employment, but we remand for further findings on the work search issue.
[¶ 2] Dragoslav Avramovic is fifty-eight years old. He was born in the former Yugoslavia. He speaks several languages, has a bachelors degree in economics, and worked as an economist and financial officer for an oil company in Bosnia before he immigrated to Germany in 1992. He moved from Germany to the United States in 1998, and began working as a truck driver for R.C. Moore in 2000. When he came to the United States, his English was limited, but he now can communicate fairly well in English.
[¶ 3] Avramovic injured his back at work in October 2003, when he jumped down from a trailer to pull down the trailer door. He received medical treatment and returned to work. The following month, he reinjured his back at work while pulling a wooden ramp to place under the wheels of his trailer. He suffered a large disk herniation that required surgery. He returned to work, with restrictions, in February 2004. His pain increased and he went out of work again in March 2004. Thereafter, he was unable to return to truck driving.
[¶ 4] In July 2005, R.C. Moore gave Avramovic a part-time position in its accounts receivable department, where he worked varying hours as tolerated, up to six hours a day. By mid-2006, his pain was increasing and his doctors restricted his work to twenty hours per week. R.C. Moore offered to keep him on, but needed him for a minimum of thirty hours per week. Avramovic declined that offer because he could not tolerate working thirty hours, and his employment was terminated in July 2006.
[¶ 5] Avramovic searched for other employment within his restrictions, but was unsuccessful. R.C. Moore contacted Expediter Corporation, a national company that assists employers in accommodating injured employees, to find employment for Avramovic within his restrictions. Expediter offered a light duty, home-based employment for Avramovic with Information Direct, Inc., (IDI) conducting telephone surveys. The position was offered to Avramovic based on information provided by R.C. Moore's attorney, and without any interview or direct contact with Avramovic. This job was alleged to be within Avramovic's restrictions and approved by his doctor, if it was restricted to four hours per day and twenty hours per week. Avramovic did not accept the offer of employment with IDI.
[¶ 6] R.C. Moore contended that Avramovic had forfeited his right to workers' compensation benefits pursuant to 39-A M.R.S. § 214(1)(A) because he refused a bona fide offer of reasonable employment from Expediter.
[¶ 7] Avramovic filed a petition for award and a petition for review related to the October and November 2003 dates of injury. He sought total incapacity benefits or 100% partial incapacity benefits. He presented evidence of a work search that included 300 job applications and thirteen personal interviews, to demonstrate that work was unavailable to him in his local community as a result of his work injury. Of Avramovic's job applications, 250 were in the fields of accounting, bookkeeping, and financial services, and fifty job applications were in other areas of employment, including temporary staffing services, clerical and office positions, and data entry.
[¶ 8] The hearing officer determined that Avramovic suffered a single injury in October 2003, and that he was currently capable of working only twenty hours per week. Addressing the work search, the hearing officer found:
His work search is certainly impressive in its extent, and the thoroughness of its documentation. He made appropriate use of the local newspapers and internet advertisements and other employment resources, such as monthly visits to the Career Center. He has certainly been trying to increase his employability, by taking adult education courses in accounting and office clerk, and he is currently studying to become a computer technician. There is no evidence that he over-emphasized his work restrictions. His persistence demonstrates his good faith. He has shown evidence [of] over 300 applications, which have resulted in 13 personal interviews, without success in finding a job so far. But even as extensive as it is, I find it to be insufficiently broad to meet his burden to demonstrate that work is unavailable to him in his local community as a result of the work injury.... Mr. Avramovic has focused his efforts almost exclusively on positions within the fields of accounting, bookkeeping and financial services. But he has a breadth of education and work experience and a variety of skills and is capable of performing a fairly wide range of jobs within his work restrictions, including jobs in many fields other than those he has targeted. He is not entitled to an increase in his partial benefit based on his work search and other evidence of the unavailability to him to work in his local community.
Accordingly, the hearing officer awarded Avramovic partial incapacity benefits, but rejected his request for 100% partial incapacity benefits.
[¶ 9] The hearing officer also found that Avramovic was not barred from receiving future benefits because he refused the Expediter job offer. The hearing officer noted that the record included "very little evidence offered about IDI itself" or "what IDI would have Mr. Avramovic doing in the job." Thus, the hearing officer determined that the offer was not a bona fide offer of reasonable employment because R.C. Moore did not prove that the position offered is "one that is actually available in the competitive labor market."
[¶ 10] Avramovic filed a brief and general petition for additional findings of fact and conclusions of law, which the hearing officer granted in part to specify Avramovic's post-injury earning capacity for the purpose of calculating the partial benefit owed. The hearing officer did not make any further findings regarding the work search, as no specific findings regarding the work search had been requested. Both parties filed petitions for appellate review, which we granted pursuant to 39-A M.R.S. § 322 (2007) and M.R.App. P. 23.
[¶ 11] R.C. Moore contends that Avramovic refused a bona fide offer of reasonable employment, and therefore is no longer entitled to receive workers' compensation benefits pursuant to 39-A M.R.S. § 214(1)(A). An employee who "receives a bona fide offer of reasonable employment from the previous employer or another employer," and who "refuses that employment without good and reasonable cause" is not entitled to receive wage loss benefits during the period of refusal. 39-A M.R.S. § 214(1)(A).1 "We have identified two purposes underlying section 214(1)(A): (1) to provide an opportunity for employers to mitigate workers' compensation benefits by offering injured employees reinstatement employment, and (2) to encourage injured employees to return to work." Thompson v. Earle W. Noyes & Sons, Inc., 2007 ME 143, ¶ 7, 935 A.2d 663, 666. "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." Id.
[¶ 12] Cases governed by section 214(1)(A) are analyzed under a two-part test in which we consider: (1) whether the offered employment was "reasonable" pursuant to the statutory criteria in section 214(5), and if so, (2) whether the employee had good and reasonable cause to refuse the employment. Thompson v. Claw Island Foods, 1998 ME 101, ¶¶ 7, 8, 713 A.2d 316, 318.
[¶ 13] The hearing officer found that the job offered to Avramovic was not a bona fide offer of reasonable employment because the employer did not prove that the position offered is actually available in the competitive labor market. The hearing officer found that the employer presented insufficient evidence about EDI, including the type of business it is; how long it has been in operation; how many employees it has hired through Expediter; whether they keep their jobs beyond the training period; and the type of work the employee would be hired to perform. The hearing officer stated: "Without some more specific information about his duties and how they relate to the company's business and the broader market I am unable to conclude that it is more likely than not that this specific job offer is a `bona fide offer of reasonable employment' as required by 39-A M.R.S. § 214(1)(A)."
[¶ 14] "Whether a burden of proof has...
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