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WCB App Div Affirms Award Despite Credibility Problems and Offer of Light Duty

On October 4, 2016, the Maine Workers’ Compensation Board Appellate Division issued a decision affirming an award of benefits to an employee whose testimony was only partly credible and whose employer offered him light-duty work which his doctor said he could have done.

In Henderson v. Lucas Tree, Henderson had pre-existing CTS and a cervical spine problem, which he aggravated at work by using a chain saw, picking up tree limbs and putting them into a wood-chipper. Lucas offered him light-duty work as a flagger, but he rejected it because he didn't think he could even "get in and out of the truck." His treating orthopedist Dr. Barr took Henderson out of work, assuming incorrectly that he would have to go back to his regular job. At deposition, Dr. Barr admitted that Henderson could have done the light-duty job, but by then he had been out of work for several months.

ALJ Jerome granted Henderson’s petitions and awarded him lost time and medical benefits. She found that the work aggravation was a new injury that contributed to his disability in a significant manner, making it generally compensable under 39-A MRSA §201 (4). She also found that Lucas had made a "bona fide offer of reasonable employment" pursuant to §214 (1) (A), but she found that he had refused that employment for “good and reasonable cause,” because Dr. Barr had told him he should stay out of work.

On appeal, Lucas argued that Judge Jerome's findings were not supported by “competent evidence,” since she had found some of his testimony to lack credibility. The Appellate Division panel, however, ruled that Judge Jerome had “the prerogative selectively to accept or reject” individual portions of his testimony. The panel also upheld her finding that Henderson's refusal of suitable light duty work was reasonable because his doctor had taken him out of work, even though the doctor was unaware of the light duty offer. This case demonstrates the importance of promptly notifying treating physicians of modified duty job offers since their work recommendations are often based on the pre-injury job.

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Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law