Maine Employment Lawyer Blog

Employers that hire through private temp agencies are not liable for discrimination under the Workers’ Compensation Act, even if they fire an employee the very day after he asserts a work injury. To hold otherwise, says Maine’s Supreme Judicial Court, would require such employers to purchase additional insurance coverage, which is inconsistent with the Legislature’s goals of reducing costs to employers, attracting employers to the state, and cutting costs to the workers’ compensation system as a whole.

In Doughty v. Work Opportunities Unlimited, a divided (6-3) Law Court decided that Charles Doughty, who worked at Poland Springs but was hired through Work Opportunities, a temp agency, and was fired the day after he asserted a work injury, did not have the right to sue Poland Springs for discrimination under Workers’ Compensation Act because Poland Springs was not his employer. The court focused on the fact that Doughty’s contract-for-hire was with Work Opportunities, even though he worked at the Poland Springs’ bottling plant, performing Poland Springs’ work, under Poland Springs’ direction and control. In Doughty’s case, he sought employment at Poland Springs by submitting an application to Work Opportunities. Poland Springs interviewed and hired him. He worked every day at the Poland Springs’ plant, filling, capping and labeling bottles. Poland Springs controlled his schedule and provided all the equipment and machines he worked on. He was paid by the hour, supervised by Poland Spring, and not Work Opportunities. The next day after Doughty got hurt on the job, Poland Springs notified Work Opportunities that they were terminating Doughty.

The Workers’ Compensation Act contains an anti-discrimination provision which states that an employee may not be discriminated against in any way for testifying in a workers’ compensation proceeding or for asserting a claim under the Act. It provides remedies including reinstatement with back pay and benefits, and payment of attorneys’ fees. However, it applies only to an employer against whom the employee has testified or asserted a claim. The court found that Poland Springs was not that employer.

In Michaud v. Fraser Paper Limited, the Maine Workers’ Compensation Board ruled that a 66 year-old mill worker with Reactive Airway Disease from workplace chemical exposure was ineligible for workers’ compensation benefits because he accepted an early retirement package that was offered by the mill, despite the fact that his light duty office job was slated for elimination as part of a company-wide downsizing.

Raymond Michaud is a 66 year-old paper mill supervisor from Frenchville. He worked for Fraser Paper Limited in Madawaska for 30 years. In 2000, he suffered a chemical exposure at work that injured his lungs and had a long-term effect on his pulmonary health. He was medically restricted from working in the mill, as he could not be exposed to fumes and dust and could not exert himself. In 2002, the mill gave him a light duty office assignment, which was less than full-time, and which he performed for approximately one year.

In 2003, due to financial difficulties, the mill announced it would lay off 190 employees. Supervisory employees over the age of 55, including Michaud, were given the option to take early retirement, with certain incentives. Michaud accepted the early retirement package, assuming that as an older worker on a less than full-time light duty assignment, his position would be eliminated during layoffs.

In Johnson v. True North Salmon, the Maine Workers’ Compensation Board emphasized the importance of performing a good faith work search when seeking 100% partial incapacity benefits under Section 213. A 50 year-old laborer in a fish processing plant, Johnson suffered a repetitive stress injury to his elbow from “pin boning” several hundred fish a day at work. Johnson did not have a high school diploma and had worked in jobs requiring heavy or repetitive use of both hands for his entire life. Prior to his injury, Johnson earned $480 a week at True North Salmon. Subsequently, his doctor diagnosed him with epicondylitis causing swelling and pain and gave him work restrictions of no heavy or repetitive work with his right hand.

Because he could not return to pin boning and the company had no light duty work for him, Johnson asked the Board to award 100% partial incapacity benefits under Section 213. To obtain 100% benefits for only partial incapacity, Johnson had to show, through work search or other vocational evidence, that work was unavailable within his local community as a result of his work injury. Johnson produced evidence of a work search conducted over the course of five months, but the Board declined to award 100% benefits because Johnson listed several employers repeatedly, week after week, most of which were not actually advertising job openings, and he did not use help wanted ads or other employment resources. Instead, the Board found that Johnson could earn $225-250 per week and reduced his benefits accordingly. The Board did take into account Johnson’s limitations with respect to the use of his right hand as a result of the work injury, his age, lack of education, lack of experience, training or transferable skills, and the fact that he lives in an isolated geographic area of the State with a poor labor market, finding that these factors, combined with his work injury, made it unlikely that he would be able to find steady, full-time employment. However, the Board felt that Johnson had not met his burden of proof to show that he looked for work in good faith.

This decision emphasizes the importance of a good faith work search for all partially disabled claimants seeking 100% benefits and shows the degree to which the Law Court’s decision in Monaghan v. Jordan’s Meats influences the hearing officers in their decisions. In Monaghan, the Law Court gave a thorough analysis of the work search rule in workers’ compensation cases. The Court explained that whether an injured employee receives total or partial incapacity benefits depends on the extent to which the employee retains the ability to earn incomes after a workplace injury. The employee’s post-injury earning capacity is based on both the employee’s physical capacity to earn wages, and (2) the availability of work within the employee’s physical limitations. An employee who retains some ability to earn may nevertheless be entitled to receive the full amount of workers’ compensation benefits, with no deduction for earning capacity, if the persisting effects of the work-related injury prevent the employee from engaging in any regular paying work.