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.