Summary:
A competent evidence decision on work capacity. The Appellate Division found that the following constituted competent evidence for a finding that the employee had met her burden of production to show that work was unavailable to her as a result of her injury: (1) work search documents showing 40 employer contacts over three months; (2) the employee’s testimony regarding efforts to find work; (3) evidence that the employee worked with DOL Voc Rehab following her unsuccessful effort to find work; (4) the employee’s current plans to open a home business; (5) the employee’s testimony about her limited education and work background; and (6) the employee’s medical restrictions. On the other hand, the Appellate Division found that the employer’s submission of a labor market survey did not compel the Hearing Officer to find that the employer had met its “never shifting” burden of proof to show, on a more probable than not basis, that work within the employee’s physical capacity was available in the community.

View complete text of Belanger v. City of Lewiston