"Bone Fide" Job Offer
In order for an administrative judge to consider a light-duty job offer in assigning an earning capacity to an employee, he must find that the offer is "bona fide." This means that the job must 1) be available and 2) the employee must be able to do it. For example, the Reviewing Board reversed an administrative judge's decision to terminate an employee's benefits on the ground that light-duty work had been made available because the evidence showed that the job might only be open for six months out of the year. Keith v. Wequassett Inn, 11 Mass. Workers' Comp. Rep. ___(1997). In making the determination that the offer is bona fide, “a judge must go beyond a mere statement that he has considered the employee's age, work and educational experience. He must analyze these factors in light of the employee's physical restrictions and the physical requirements of the job.” Id. Thus, the judge must consider whether the employee is physically and mentally capable of the work, considering the injury and whether the job bears a reasonable relation to the employee's vocational capabilities.
The job offer need not be written in order to be considered bona fide. Nevertheless, it is a good practice for the employer to send and/or the employee to request a written offer, outlining the requirements of the job, the hours he or she will be expected to work and the rate of pay. This will allow the employee to show the offer to his physician and get his/her approval. Indeed, when representing employees, I have successfully persuaded administrative judges to ignore any job offer that was not formally put in writing.