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BETTY J. COTE
vs.
GREAT NORTHERN PAPER CO.
 
Case:
Decision No. 6255 Law Docket No. WCC-92-31
 
Location:
SUPREME JUDICIAL COURT OF MAINE
 
Date:
July 15, 1992, Decided
 
Attorneys:
For the Employee: Wayne Whitney Esq. (orally) Anthony J. Peverada Esq. McTEAGUE HIGBEE LIBNER MacADAM CASE & WILSON Four Union Park P.O. Box 5000 Topsham Maine 04086.
For the Employer: John A. Woodcock Jr. Esq. (orally) WEATHERBEE WOODCOCK BURLOCK & WOODCOCK 136 Broadway P.O. Box 1127 Bangor Maine 04402.
 
Court:
Before WATHEN, C.J. and ROBERTS GLASSMAN CLIFFORD COLLINS and RUDMAN JJ.
 
Author:
The Hon. Justice Roberts
 

Prior to the summer of 1989 Cote had sustained two work-related injuries. In June 1989 Great Northern offered her temporary employment within her physical capacity for the summer vacation period. Despite Cote's knowledge that the company required a drug screening test she took the test and tested positive for cannabis. Great Northern thereafter petitioned for a reduction of benefits and a recovery of overpayments made after July 1 1989 the date she could have returned to work.

Section 66-A(6) provides in pertinent part:

If any injured employee refuses to accept an offer of reinstatement the

employer . . . may file . . . a petition for a reduction of benefits. If after hearing the commission finds that an employee refused to accept the offer and the position offered was suitable to his physical condition it shall order the reduction of all benefits payable under section 54-B and 55-B.

The Commission ruled that Great Northern had failed to sustain its burden of proof finding that Cote "wanted to return to work" and would have done so "but for her failure of the rehiring drug test." See 39 M.R.S.A. SEC. 66-A(7). Great Northern argued to the Appellate Division and before us that the failure of a reemployment drug test is a refusal of employment. The company contends that Cote's situation is analogous to an employee's failure to participate in an independent medical examination or refusal of medical treatment (section 65); an employee's intentional injury to himself (section 61); an employee's refusal to comply with an approved rehabilitation plan (section 87); and an employee's criminal conduct (section 102-A). 39 M.R.S.A. SEC. 61 65 87 102 A. The company argues that Cote's conduct as in the aforementioned situations constitutes deliberate action that frustrates the employer's attempt to ameliorate the burden of workers' compensation.

We previously rejected a similar argument in Cousins v. Georgia-Pacific Corp. 599 A.2d 73 (Me. 1991) where we decided that an employee's discharge for willful misconduct did not preclude a restoration of compensation benefits. In Cousins we recognized that the Legislature has seen fit to penalize very limited forms of misconduct. Although the Legislature imposes a duty on the employer to reinstate an injured employee it has not imposed a reciprocal duty upon the employee to maintain herself ready for reinstatement (physically able to pass a required pre-employment test). As we said in Cousins we deem it inappropriate for us to expand the narrow provisions of the act.

The entry is:

Judgment affirmed: Wathen C.J. Glassman Clifford and Rudman JJ. concurring.

Dissenting: The Hon. Justice Collins

I respectfully dissent from the court's opinion which further develops the line of employee oriented position we adopted in Cousins v. Georgia-Pacific 599 A.2d 73 ( 1991).

Testing employees in order to detect the usage of controlled substances has become an important feature of employment safety in recent years. Here the employee's failure of the rehiring drug test constitutes a refusal to accept suitable employment. Under 39 M.R.S.A. SEC. 66-A if the employer offers the employee a job "suitable to his physical condition " the employee must accept it or suffer the penalties of the act. Keene v. Fairchild Co. 593 A.2d 655 (Me. 1991). There is no question that the employee wanted to return to work and that she knew she would have to pass a reemployment drug test before she could be reinstated. Nonetheless she elected to take illegal drugs and those drugs were detected when she was tested. In balancing an employee's illusory "right" to use illegal drugs against the employer's rights under section 66-A it is clear that the public interest is best served by recognizing the statutory rights of the employer and thus also serving the common sense policy of ensuring safety in the workplace. Compare the employee's refusal to take advantage of reasonable medical treatment e.g. Gordon v. Maine Reduction Co. Inc. 358 A.2d 544 548 (Me. 1976); the employee's intentional or reckless injury of himself e.g. Richardson v. Robbins Lumber Inc. 379 A.2d 380 (Me. 1977); the employee's refusal to comply with the terms of an approved rehabilitation plan 39 M.R.S.A. SEC. 87(4); and criminal acts by an employee that result in incarceration 39 M.R.S.A. SEC. 102-A.

The employee's failure of the re-employment drug screening test constitutes a refusal to accept employment. The employer should be entitled to reduce compensation benefits by the amount the employee would have received if she had returned to work.