While the recent decision of Martines v. Worley & Sons reiterated the principal that an employee’s refusal to accept suitable light-duty employment following a work-related injury must be based upon a physical inability and/or lack of skill to perform the proffered job, the Court of Appeals further elaborated upon this principle within the context of undocumented workers.
While the recent decision of Martines v. Worley & Sons reiterated the principal that an employee’s refusal to accept suitable light-duty employment following a work-related injury must be based upon a physical inability and/or lack of skill to perform the proffered job, the Court of Appeals further elaborated upon this principle within the context of undocumented workers. The result is a shift away from the previous, pro-employee decision in Earth First Grading v. Gutierrez towards a more employer-oriented ruling. In short, the Court of Appeals found that an injured employee’s refusal to accept suitable light duty employment cannot be based upon a legal inability to perform the work, but must be based upon the employee’s physical incapacity and/or lack of skill in regards to the prospective employment.
The facts in Martines are rather interesting and, more importantly, not in dispute. The Claimant, Merced Martines, a Mexican immigrant, sustained a work-related injury to his left foot while working for Worley & Sons Constructions. He received medical treatment and his authorized treating physician released him to return to work, but with restrictions. Consequently, Worley & Sons offered him a job as a delivery truck driver which, most significantly, was within the work restrictions issued by the authorized treating physician. The Claimant accepted the job offer, but when he reported to work, Worley & Sons asked him to provide them with a driver’s license and documentation that he was in the country legally. Understandably, Worley & Sons wanted this documentation before they would allow Mr. Martines to drive a company truck. In response, Mr. Martines told Worley & Sons that he could not produce a driver’s license because, quite simply, he was in the country illegally and thus, could not obtain one. (As an aside, the decision is silent as to whether he was able to produce documentation showing he was in the country legally). Consequently, Worley & Sons would not allow him to operate a delivery truck and thus, Mr. Martines left their offices and did not return to work. He alleged that, following this failed return to work, his condition worsened to the point his treating physician totally disabled him from work two days later for a period of three weeks (though approximately two months later, his treating physician placed him back on the same work restrictions he had prior to the offer of light-duty employment).
Mr. Martines petitioned the State Board for commencement of temporary total disability benefits. An administrative law judge (ALJ) found that the job offered to Mr. Martines was unsuitable, not because he lacked the physical capacity to perform it, but because he did not possess the driver’s license required for the job. However, it must be emphasized that Mr. Martines presented no evidence that he was unable to drive because of his work-related injury or that he lacked the skills necessary to operate a motor vehicle. While he testified at hearing that he did not drive “very well,” he conceded that he drove in his native and would be able to drive in this country if he had a valid driver’s license.
The Appellate Division nevertheless affirmed the ALJ’s decision. However, the Superior Court very appropriately found that the Board had applied the wrong legal standard in determining whether the proffered job was suitable. The claim proceeded to the Court of Appeals, which noted two issues for appeal: 1) whether the State Board erred as a matter of law in concluding that the proffered work was not suitable, and 2) whether the Superior Court correctly found that the Claimant’s refusal of work was unjustified.
As the Court of Appeals appropriately noted, any determination of whether an employee’s refusal of suitable light duty was justified must be examined within the context of code section 34-9-240 of the Workers’ Compensation Act. §34-9-240(a) states that if a claimant refuses suitable light-duty work which is offered, he may not be entitled to any compensation (except for PPD benefits) for so long as the refusal continues, unless the State Board finds that the refusal was justified. Furthermore, §34-9-240(b) holds that if the authorized treating physician (ATP) releases an employee to return to restricted duty and the employer tenders a suitable job within those restrictions, then if the employee attempts the proffered job and is unable to perform it for more than 15 working days, then indemnity benefits must be immediately reinstated; consequently, the burden is upon the employer/insurer to prove that the claimant is not entitled to ongoing indemnity benefits. However, §34-9-240(b)(1) further states that if the claimant refuses altogether to attempt the proffered job, then the employer/insurer may unilaterally suspend benefits. Of course, this assumes that the employer/insurer followed the proper procedural prerequisites outlined in §34-9-240 and Board Rule 240. Once a unilateral suspension occurs, the burden shifts to the employee to establish ongoing entitlement to indemnity benefits.
In addition to outlining the statutory prerequisites for offering light-duty work to an injured employee, no analysis of the refusal of said employment is complete without considering the seminal case of City of Adel v. Wise. Indeed, the Court of Appeals noted that the Supreme Court established the appropriate standard for examining the issues of refusal of suitable light-duty within the Wise decision.
In the Wise decision, the Supreme Court outlined a two-pronged test for examining whether the refusal of light-duty may warrant the suspension of benefits. First, the Board must determine whether the employment offered by the employer/insurer and refused by the employee is suitable to the capacity of the employee. Second, the Board must determine if the refusal of said employment was justified. More significantly, the Supreme Court held that a justified refusal is one that is based upon the claimant’s physical incapacity to do perform the job or factors such as geographic relocation or travel conditions which would disrupt the employee’s life. As the Supreme Court noted, examples of a physical inability to perform the job include work that aggravates the work injury, work that requires relocation, or employment that he lacks the skills to perform, i.e. an unskilled, uneducated laborer would likely be justified in refusing clerical work. In contrast, an employee is not justified in refusing work based upon personal choices unrelated to his physical capacity or ability to perform the work, such as the desire to work a particular shift or to avoid non-union work.
With the above principles set forth, the Court of Appeals in the Martines decision concluded that the employer/insurer followed the proper procedural prerequisites in offering the Claimant the light-duty delivery job. More importantly, they found that the proffered job was suitable inasmuch as it was within the restrictions outlined by the treating physician. Consequently, the Court of Appeals found that the Board erred in determining that the proffered job was not suitable to the employee’s capacity.
The Court of Appeals next examined whether the Claimant’s refusal of the light-duty delivery job was justified. Therefore, the key question was whether the Claimant’s refusal to perform the job was related to a physical inability, lack of appropriate skills, or geography. As noted above, it was not disputed that the Claimant has the physical ability to perform the delivery driver job. Second, he admitted that he knew how to drive a car and had done so in his native . Third, the Claimant did not contend that there were any geographic barriers to performing the proffered job.
Interestingly, the Court of Appeals did not side-step the politically charged issue of the Claimant’s illegal status and its impact upon whether his refusal of the proffered job was justified. Indeed, they found that “the only evidence in the record is that Martines can in fact drive a car and has driven in , but chose to enter this county illegally and apparently chose not to jeopardize his situation by attempting to obtain a driver’s license. It is therefore not a question of his inability to drive a car but his inability to acquire a driver’s license because of his illegal status.” The Court of Appeals reasoned that the Claimant’s situation was essentially no different from that of an individual whose license has been suspended or revoked for a violation of the law; had the Claimant been a legal resident, but possessed a suspended license, his inability to perform the delivery driver job would not be related to his physical capacity to do the job, but solely to his legal inability.
The Court of Appeals distinguished the Martines case from its earlier decision in Earth First Grading v. Guiterrez (in which they found that the claimant’s illegal immigration status was not known until long after the period for which he sought benefits, thus allowing him to recoup indemnity benefits) by noting that Martines’s illegal status was not revealed until after he was offered the suitable light-duty job. Thus, the Court reasoned that allowing an employee’s illegal immigration status to be a basis for justified refusal of employment under 34-9-240 would permit a claimant who is already receiving benefits to refuse any proffered employment on the basis of his legal inability to work.
The Martines decision is certainly favorable to employers inasmuch as it precludes a claimant, who is presently receiving benefits, from asserting their illegal status as a basis for refusing suitable light-duty work under §34-9-240. Fortunately, the Court of Appeals reaffirmed the sound principle originally set forth in theWise decision by holding that an employee’s refusal of suitable light-duty is justified only as it relates to his physical inability to perform the job because of the work injuries or lack of appropriate skill set, as opposed to non work-related personal issues, such as immigration status.