Appellate Division Reverses Decision Supporting Causation Based on Speculative Medical Evidence

Generally speaking, the petitioning party bears the burden of persuasion to establish all elements of a claim on a more probably than not basis. Fernald v. Dexter Shoe Co., 670 A.3d 1382 (Me. 1996). Establishing the compensability of an injury through a Petition for Award is no exception. Rowe v. Bath Iron Works Corp., 428 A.2d 71 (Me. 1981). 

Proof of a causal relationship between an employee’s work and his or her injury is an essential element of a Petition for Award. Except where, “causation is clear and obvious to a reasonable [person] who had no medical training[,]” an employee must rely on the opinion of a qualified medical expert to meet his or her burden of proof on the issue of medical causation. See Brawn v. Bangor Tire Co., Me W.C.C. 97, 101 (Me. App. Div. 1983). The determination of causal connection is a question of fact. See Bruton v. City of Bath, 432 A.2d 390, 392 (Me. 1981). However, whether a party has or has not met their burden of proof is reviewable as a question of law. § 318. Further, “although slender evidence may be sufficient [to meet a burden of proof], it must be evidence, not speculation, surmise or conjecture,” Grant v. Georgia-Pacific Corp., 394 A.2d 289 (Me. 1978). 

In Wickett v. University of Maine System, Me. W.C.B. No. 17-27 (App. Div. 2017), the employee fell down a set of stairs and developed low back and abdominal pain. The employee was subsequently diagnosed with a retroperitoneal mass. The employee filed Petitions for Award and for Payment seeking payment for medical bills and incapacity benefits. 

The employee introduced a report from her treating physician in which the physician stated, “I can only speculate,” finding a causal connection between the mass and the injury, and that the relationship between the injury and the diagnosis “certainly make this a likely possibility.” Based on these statements, the ALJ found the surgery to remove the mass related to the injury. 

The employee bore the burden of proof as the moving party. The Appellate Division stated that medical causation cannot be established on the basis of “speculation, surmise, or conjecture.” In this case, the physician was not able to state that there was a probable connection between the injury and the condition requiring surgery. The Appellate Division reversed and found that the employer was not responsible for the cost of surgery and for the disability that followed. The employee was merely entitled to the protection of the Act for the contusion injury.

The bottom line: Wickett reinforces that although slender evidence may be sufficient to meet one’s burden, it must not be speculation, surmise or conjecture. More than that is required for an employee to carry his or her burden to prove the compensability of an injury.

New Legislation Provides for Right to Benefits to Employees Participating in Vocational Rehabilitation, Limited Exceptions for Insurers to Reduce Benefits

The Maine Workers’ Compensation Act provides, “[w]hen as a result of injury the employee is unable to perform work for which the employee has previous training or experience, the employee is entitled to such employment rehabilitation services, including retraining and job placement, as reasonably necessary to restore the employee to suitable employment.” Further, “[i]f employment rehabilitation services are not voluntarily offered and accepted, the board on its own motion or upon application of the employee, carrier or employer, after affording the parties an opportunity to be heard, may refer the employee to a board-approved facility for evaluation of the need for and kind of service, treatment or training necessary and appropriate to return the employee to suitable employment. . . .” 

Through October 31, 2017, § 217 provides:

8. Presumption. If an employee is participating in a rehabilitation plan ordered pursuant to subsection 2, there is a presumption that work is unavailable to the employee for as long as the employee continues to participate in employment rehabilitation.

In Axelsen v. Interstate Brands Corp., App. Div. No. 15-27 (October 22, 2015) the Workers’ Compensation Board Appellate Division found the presumption in § 217(8) is rebuttable. The employer can seek to rebut the presumption and establish the employee’s extent of incapacity is less than 100% while a Board-ordered vocational rehabilitation plan is in effect by proving that work is available through labor market evidence.

LD 612 (“An Act To Improve Vocational Rehabilitation under the Maine Workers’ Compensation Act of 1992”) will become effective November 1, 2017. The new legislation repeals § 217(8) and enacts § 217(9) which states:

9. Reduction of benefits. If an employee is actively participating in a rehabilitaion plan ordered pursuant to subsection 2, benefits may not be reduced except:

A. Under section 205, subsection 9, paragraph A, upon the employee’s return to work with or an increase in pay from an employer who is paying the employee compensation under this Act; 

B. Under section 205, subsection 9, paragraph B, based on the amount of actual documented earnings paid to the employee; or 

C. When the employee reaches the durational limit of benefits paid under section 213. 

The new legislation repeals the presumption in the current law with respect to an injured employee participating in employment rehabilitation that work is unavailable to the employee. In place of the presumption, the new legislation enacts a new provision which provides that an injured employee participating in vocational rehabilitation has a right to benefits except under only three circumstances where benefits may be reduced:

1. when the employee has returned to work with or received an increase in pay from the employer; 
2. when the employer has reduced benefits based on actual documented earnings of the employee; and 
3. when the employee has reached the durational limit on partial incapacity benefits 

Under the new legislation, there is no requirement that benefits be returned to the total rate if an employee has already been reduced to a partial rate, but benefits may not be reduced further except under the limited circumstances above.

Appellate Division Addresses Adequacy of Findings of Fact for Appellate Review

Under§ 318 of the Maine Workers’ Compensation Act:

. . . From the evidence or statements furnished, the administrative law judge shall in a summary manner decide the merits of the controversy . . . . The administrative law judge, upon the motion of a party made within 20 days after notice of the decision or upon its own motion, may find the facts specially and state separately the conclusions of law and file the appropriate decision if it differs from the decision filed before the request was made. Those findings and conclusions and the revised decision must be filed in the office of the board and a copy, attested by the clerk of the board, must be mailed promptly to all parties interested. . . .

When requested, an ALJ is under an affirmative duty to make additional findings to create an adequate basis for appellate review. Coty v. Town of Millinocket, 444 A.2d 355, 357 (Me. 1982).

If an employee requests additional findings of fact and conclusions of law under § 318 and submits proposed additional findings, the Appellate Division must not assume the ALJ made all necessary findings to support its conclusion(s). In such case, the Appellate Division reviews the original findings and any additional findings made in response to a motion for findings to determine if they are sufficient, as a matter of law, to support the result and if they are supported by record evidence. 

In Bisco v. SD Warren, WCB App. Div. No. 17-30 (September 22, 2017) an employee appealed a decision partially denying his Petition for Restoration, arguing that he proved a change in both medical and economic circumstances beyond a brief period awarded by the ALJ. In order to prevail upon a petition for restoration, the employee must demonstrate a change in circumstances sufficient to justify the restoration of compensation. This is typically done through proving a change in medical or economic circumstances.

Because the employee requested additional findings of fact and conclusions of law and submitted proposed additional findings, the Appellate Division must not assume the ALJ made all necessary findings to support the conclusion that the employee did not experience either changes of economic or medical circumstances beyond the limited period surrounding his surgery. 

The Appellate Division found the ALJ simply concluded that the employee had now shown a change in economic circumstances but did not specifically address this evidence or explain why this was insufficient to demonstrate a change in economic circumstances. The Appellate Division noted that the employee requested and submitted a proposed finding on the issue of whether increased pain due to the inability to take ibuprofen constitutes a change in medical circumstances that would justify revisiting the 2011 payment scheme beyond a recovery from surgery. The ALJs original findings do not address this issue and the Appellate Division found “some tension between his finding on the former effectiveness of ibuprofen and his conclusion that there had been no change of medical circumstances since the 2011 decree, except during the acknowledged closed-end period.” 

The case was remanded to the ALJ to make additional findings as to whether the employee’s failed effort to regain pre-injury earnings after the 2011 Decree constitutes a change of economic circumstances and whether the employee’s inability to control his symptoms with ibuprofen constitutes a change of medical circumstances.

The bottom line: When requested, an ALJ is under an affirmative duty under § 318 to make additional findings to create an adequate basis for appellate review. This case demonstrates the importance of adequate findings and the potential consequences on appeal without such findings. This is particularly important in the context of Petitions for Restoration or Review in which changed circumstances must be demonstrated, which is often a very fact-specific exercise.

Maine Supreme Court Case Involving Dispute Over Volunteer vs. Employee Status Could Have Far-Reaching Implications

Under the Maine Workers’ Compensation Act (§ 102(11)(A)), an “employee” is “every person in the service of another under any contract of hire, express or implied, oral or written.”

Generally, volunteers are not covered under the Workers’ Compensation Act. In Harlow v. Agway, Inc., 327 A.2d 856 (Me. 1974), the Law Court held that “[a]n essential element in creating an employer-employee relationship, and consistent with the purposes for which the [Act] was enacted, is payment, or expected payment, of some consideration by an employee to an employee, thus excluding from coverage purely gratuitous workers who neither receive, nor expect to receive, pay or other remuneration for their services.” In Closson v. Town of Southwest Harbor, 512 A.2d 1028 (Me. 1986), an individual who had applied for general assistance was injured while participating in the program’s work requirement. The Law Court found that because a participant in the program neither received nor could have expected to receive remuneration or wages for the services he performs, no employment relationship existed.

On October 12, the Maine Supreme Court heard oral arguments in the case of Huff v. Regional Transportation Program. At issue is whether an individual can be an “employee” for workers' compensation purposes even when treated as a volunteer by a nonprofit organization. 

In Huff v. Regional Transportation Program, Me. WCB App. Div. No. 16-40 (November 15, 2016), in 2011, an employee became a volunteer driver from the Regional Transportation Program (RTP), a nonprofit that provides elderly transportation. In conjunction with serving in this position, the employee signed a memorandum of understanding stating he was a volunteer. He also used his own vehicle to drive people around. The individual was reimbursed for expenses by RTP at the IRS employee reimbursement rate of 41 cents per mile. He generally received $700-$800/week in reimbursements. In 2012, the employee was involved in an accident while driving for RTP. He brought a claim for workers’ compensation benefits as an RTP employee, which the Workers’ Compensation Board (WCB) denied, finding he was a volunteer. 

The WCB Appellate Division affirmed the Board’s decision. The Appellate Division rejected the individual’s contention that the $0.41 per mile that the driver received as reimbursement constituted remuneration. The Appellate Division also rejected the argument that the $0.41 reimbursement rate is an IRS rate specifically set for employees, noting that provisions of the tax code do not dictate interpretations of the Workers’ Compensation Act. Because the individual’s services were without remuneration, he was not an employee under the Act. The Appellate Division found this case distinguishable from Harriman v. EMK, 1998 Me. Super. LEXIS 58 (Mar. 13, 1998), in which a volunteer, in exchange for services, was allowed to ski at any time without charge, received free beverages and was able to earn free ski passes for friends based on number of hours she worked. The key difference was that, in Harriman, that individual did not provide services on a purely gratuitous basis, but exchanged her services for valuable remuneration that was not fixed.

The decision may have significant implications for nonprofit employers.

WCB Limits Requirement for Notice of Rights Leading up to Cessation of Partial Incapacity Benefits after 520 Weeks

For injuries on or after January 1, 2013, partial compensation is calculated using 2/3 of the difference between the employee’s average weekly wage and post-injury earnings subject to the maximum rates. An employee’s benefits are capped after receiving 520 weeks of partial compensation benefits. This cap may be extended in cases involving extreme financial hardship or as outlined below. 

For injuries on or after January 1, 2013, employees whose permanent impairment exceeds 18% may qualify for an extension of the 520 week cap. Entitlement to benefits is determined based upon the facts as they exist at the expiration of 520 weeks of benefits, and requires that: (1) the employee must be working and the employee’s earnings (as measured by average weekly earnings over the most recent 26 week period) are 65% or less than the employee’s pre-injury average weekly wage; and (2) the employee’s actual earnings are commensurate with the employee’s earning capacity, including consideration of the employee’s physical and psychological work capacity as determined by a §312 Independent Medical Examiner, and (3) the employee has earnings from employment for a period of not less than 12 months within a 24 month period prior to the expiration of the 520 week durational cap. Additionally, once an employee’s post-injury earnings (as measured by the most recent 26 week period) exceed the pre-injury average weekly wage, the employee’s entitlement to partial incapacity benefits terminates permanently. 

Pursuant to the Board’s rules, an employer can discontinue partial incapacity benefits at the expiration of 520-weeks of payment of such benefits but, according to the a Workers’ Compensation Board rule, only if notice is first given to the employee 21-days in advance of the upcoming date of discontinuance and of the employee’s 30-day right to request a hardship extension. The rule states:

1. Prior to cessation of benefits pursuant to 39-A M.R.S.A. § 213(1), the employer must notify the employee that the employee’s lost time benefits are due to expire. The notice must be sent at least 21 days in advance of the expiration date, and must include the date the lost time benefits are due to expire and the following paragraph:

If you are experiencing extreme financial hardship due to inability to return to gainful employment, you may be eligible for an extension of your weekly benefits. To request such an extension, you must file a Petition for Extension of Benefits within 30 calendar days of the date that benefits expire, or, in cases where the expiration date is contested, within 30 calendar days of a final decree as to the expiration date.

Failure to send the required notice will automatically extend the employee’s entitlement to lost time benefits for the period that the notice was not sent. 

Notice shall be considered “sent” if it is mailed to the last address to which a compensation check was sent.

WCB Rule c. 2, §5

In Lorraine Somers v. S.D. Warren Co., Me. WCB No.: 00017178 (Feb. 28, 2017) Judge Elwin found that the above rule applies only if the employer files a 21-day Certificate of Discontinuance. It does not apply when a Petition for Review is filed when the decision is issued after the 520-week limit has expired because the future “date of discontinuance” is unknown at that point. Judge Elwin held that applying the rule when a Petition for Review is filed would be illogical because the date benefits are “due to expire” depends on when the Board issues a decision. The decision was appealed. The Appellate Division will decide the matter on the briefs or, if requested and the case fits the criteria, after oral argument.

As an aside, a Certificate of Discontinuance can only be filed when benefits are being paid voluntary, without prejudice (i.e. payment is not being made pursuant to an “accepted” Memorandum of Payment, Record of Mediation or Decree). In all other cases, a Petition for Review must be filed to discontinue benefits.

ALJ Elwin Reappointed for Seven-Year Term

The Workers’ Compensation Board appoints Administrative Law Judges to conduct formal hearings. Formal hearings are scheduled after a petition is filed. At the hearing stage, the parties exchange information, including medical reports, and answer discovery questions relating to a claim. The parties also file a “Joint Scheduling Memorandum” which lists the witnesses who will testify and estimates the hearing time needed. At the formal hearing, witnesses for both sides testify and, usually, documentary evidence is submitted. In most cases, the parties are represented either by an attorney or a worker advocate. Following the hearing, position papers are submitted and the Administrative Law Judge issues a final written decision.

Judge Elizabeth Elwin was reappointed for a seven-year term. Judge Elwin is one of 8 Administrative Law Judges with the Maine Workers’ Compensation Board. She hears cases in formal hearings from the Augusta Regional Office. Judge Evelyn Knopf also hears cases in that Regional Office. The remaining Administrative Law Judges include David Hirtle, Tom Pelletier, Glen Goodnough and Tim Collier, Sue Jerome and Mike Stovall. These other Judges hear cases in Bangor, Caribou, Lewiston and Portland, respectively.

Appellate Division Revisits Retirement Presumption in Various Contexts

Under the “retirement presumption” (§ 223 of the Maine Workers’ Compensation Act), an employee who terminates active employment and is receiving nondisability pension or retirement benefits is presumed not to have a loss of earnings as the result of a compensable injury or disease. This presumption may be rebutted only by evidence that the employee is medically totally incapacitated.

By way of background, the Maine Supreme Court has found, “[t]he retiree presumption is designed to assist fact-finders in determining when an employee who has reached or neared the conclusion of his or her working career will remain eligible to receive workers’ compensation benefits.” Downing v. Dep’t of Transp., 2012 ME 5. In Cesare v. Great N. Paper Co., 1997 ME 170, the employee announced an intention to retire early and was on the cusp of retirement when he sustained a new work injury. Due to the effects of the new work injury, he went out of work voluntarily before his retirement date; he was not working on the day he retired. The Court held that because he was not working as a result of a work-related injury, Cesare did not terminate active employment on 2/1/87.

“The fact that an employee has announced an intention to retire, or requested the necessary paperwork, or applied for retirement, does not affect the status of the employee as actively employed until the effective date of retirement. The presumption did not apply. The Cesare Court distinguished Bowie v. Delta Airlines, 661 A.2d 1128 (Me. 1995) where the employee argued that because he was working light-duty at the time of retirement, he was not actively employed for purposes of § 223. The Maine Supreme Court rejected this argument, holding that the phrase “active employment” is usually understood to mean one who is actively on the job and performing the customary work of his job.

In Perry v. Meadwestvaco, WCB App. Div. No. 17-29 (September 13, 2017) the employee appealed a decision denying his Petitions for Restoration due to the “retirement presumption.” The Appellate Division found the ALJ’s application of the retirement presumption was not erroneous. Although the employee was not performing the same duties of the job he held at the time of his original work injury, he performed the customary duties of his job, with restrictions, for many years until retirement. The Appellate Division found this work constitutes “active employment” for purposes of the presumption. The Appellate Division went one step further and noted, as an aside, that the employee did not prove that he had been working under duress or that he was unable to perform work suitable to his qualifications; two avenues which may offer relief from the retirement presumption if proven.

This is not the first decision this year from the Appellate Division dealing with the retirement presumption. In Wing v. NewPage, WCB App. Div. No. 16-5 (March 7, 2016) the Appellate Division applied the retirement presumption because the employee continued working, albeit light-duty, up to the date of retirement from active employment. In Hallock v. NewPage, WCB App. Div. No. 16-6 (March 7, 2016) the Appellate Division found the presumption applied where an employee had used accrued vacation time leading to a retirement date. In Casey v. NewPage, WCB App. Div. No. 16-9 (March 22, 2016), the Appellate Division found the presumption applied because the employee was actively employed at the time of retirement despite her claim that she retired because she was working with restrictions for financial reasons despite her injuries, which constituted coercion by the employer.

Expect more litigation on the retirement presumption in light of the fact-specific nature of workers’ compensation matters and the ever-changing law. The Appellate Division suggests that under the right facts (i.e. duress or an inability to perform work suitable to ones restrictions) the presumption may not apply. Time will tell whether the Appellate Division addresses an appeal with these facts in the future. For now, it is clear that as long as an employee is working in some capacity up until a retirement date, this is sufficient to trigger the presumption.