A. Injuries Before 01/01/93
For employees who have regained a physical capacity for work but continue to suffer from some physical limitations, work search rules may govern whether they are paid partial at less than 100%, or whether they are instead paid compensation for 100% partial.
Traditional work search rules applying to injuries before 11/20/87 were developed by the Court, and can be summarized in their simplest form as follows: (1) a claimant with a limited duty work capacity is presumed to be entitled to partial benefits; (2) he becomes entitled to 100% benefits if the evidence shows that he is unable to find suitable work in his community because of the effects of the injury, either because no suitable jobs are available or because employers are generally refusing to hire disabled applicants. If the case is being litigated, the burden of proof on a work search depends on who brought the petition. An employer bringing a Petition for Review is the moving party and bears the burden of proof. Thus, once the employee testifies to a fruitless work search or submits other evidence which shows that work is not available because of the continuing effects of the injury, he is entitled to 100% benefits unless the employer can prove that suitable work nonetheless is available to the employee (39 M.R.S.A. §55). If the employee brings a petition (for award or restoration), he must prove that no suitable work exists for him within his community.
Beginning with injuries on or after 11/20/87, work search cases are divided into two categories: Those cases where the employee has regained a full-time work capacity and those cases where the employee has regained only a part-time capacity for work. Employees with full-time work capacity who have performed a good faith work search and are therefore entitled to benefits for 100% incapacity, receive those benefits under section 55-B, which defines compensation for partial incapacity. Employees who have regained only a capacity for part-time work, but qualify for benefits for 100% incapacity, must be paid benefits under section 54-B, which defines benefits for total incapacity. For dates of injury after 11/20/87, this distinction is important because it has a direct bearing on application of inflation adjustments and durational limitations (see INFLATION ADJUSTMENTS, TOTAL INCAPACITY, and PARTIAL INCAPACITY).
Effective 10/17/91, a statutory amendment provided that during the first 40 weeks after the injury, the usual community search area applies, but the employee has the burden of proof even on an employer's Petition for Review. After 40 weeks, the search area expands to statewide, but only applies to actual jobs identified by the employer. The employee still bears the burden to produce evidence of a good faith work search within his community.
B. Injuries On Or After 01/01/93
The Law Court has now clarified that under the 1992 Act, the partially disabled employee still has a work search obligation. The general work search rules set forth at the beginning of this Chapter therefore apply. There is no case law which holds that an employee must conduct a work search beyond his own community, but an employee's responsibility to accept job offers (or risk losing compensation benefits) exists as to jobs offered within a "reasonable distance from that employee's residence." See 39-A M.R.S.A. §214 (1) (A) and (5). There is case law stating, however, that an employee can move out of the community where he worked at the time of his injury to improve his employment prospects relative to the effects of his injury. Work search rules, which establish a distinction between benefits for 100% partial incapacity and benefits for 100% total incapacity (based upon whether the employee has regained a full-time or part-time work capacity), continue to be important for dates of injury on or after 01/01/93. This distinction has a direct bearing on application of the section 213 limitation period in cases where an employee's permanent impairment does not exceed the applicable threshold (see PARTIAL INCAPACITY).
