Workers’ Compensation Board Appellate Division to Review Decision Dealing with Burden of Production and Proof Under the § 327 Death Presumption

Continuing with the case of Flaherty v. City of Portland, WCB Nos. 05032057 & 11036148 (June 22, 2017) from the previous post, the Board found the § 327 death presumption applied to the claims filed by Mrs. Flaherty under the traditional (non-occupational) Act. The Board found this presumption shifts the burden of proof to the Employer to demonstrate the nonexistence of the presumed fact. In other words, the Employer must demonstrate, on a more likely than not basis, that the decedent’s cancer did not arise out of or in the course of his employment.

The issue of burden-shifting under the § 327 presumption has been addressed quite a bit in recent times. In LaValle v. Town of Bridgton, Me. WCB App. Div. No. 15-13 (April 10, 2015), the ALJ applied § 327 by shifting the burden of proof to the employer to negate the facts established by the presumption. The Appellate Division affirmed. In Estate of Sullwold v. Salvation Army, 2015 ME 4, the Law Court addressed the application of § 327 and held that the Appellate Division in Estate of Sullwold, Me. WCB. App. Div. No. 13-3 (November 8, 2013), did not erroneously shift the burden of persuasion to the employer, but appropriately applied the standard articulated by the Law Court long ago in Toomey v. City of Portland, under which once an employer produces evidence sufficient to overcome the presumption of work-relatedness, the presumption disappears and the estate must then meet its burden of proof to prevail. However, in a footnote to the decision, the Law Court declined to reach the issue of whether the Appellate Division’s interpretation of § 327 is correct. In LaValle, the Appellate Division relied on Estate of Sullwold, Me. WCB. App. Div. No. 13-3, and held that to defeat the presumption, an employer must prove it is more probable than not that the injury did not arise out of and in the course of employment. In LaValle, rather than merely placing a burden of production on the employer, the Appellate Division placed on the employer the burden of proving the nonexistence of a presumed fact, making for a rather unclear decision in light of the Law Court’s ruling in Estate of Sullwold, 2015 ME 4.

In any event, the Employer was tasked with the burden of proving that the death was not related to employment. In order to rebut the presumption, the Employer presented evidence from Dr. Harbison, a toxicologist. Dr. Harbison was critical of Dr. Oliver's conclusions regarding the causal connection between Mr. Flaherty's work and his cancer. Dr. Harbison found: 

1. There is insufficient scientific evidence supporting the proposition that firefighters are exposed to levels of benzene that are harmful; and 
2. There is inadequate scientific evidence to support the proposition that benzene causes myelofibrosis. 

The Board was not persuaded by Dr. Harbison's analysis that it is more probable than not that Mr. Flaherty's myelofibrosis was not related to his employment as a firefighter because, among other things, his findings regarding exposure and causation were based on a paradigm of proof inconsistent with the applicable “more probable than not” standard traditionally used in Maine workers’ compensation cases. 

The Petitions for Award – Occupational Disease Law filed by Ms. Flaherty in her role as personal representative and as widow were denied insofar as those petitions allege claims under the Occupational Disease provision of the Act. Those petitions were granted, however, with respect to the claims made under the traditional worker's compensation Act. The employer was ordered to pay 500 weeks of benefits under § 215.

Workers’ Compensation Board Appellate Division to Review Decision Dealing with Application and Scope of § 327 Death Presumption

In Flaherty v. City of Portland, WCB Nos. 05032057 & 11036148 (June 22, 2017), Timothy Flaherty worked for years as a Portland firefighter. He was diagnosed with myelofibrosis, a rare cancer/disease of the bone marrow in August 2004. Mr. Flaherty retired from the fire department on February 28, 2005. He died from myelofibrosis on August 30, 2011.

Pending before the Board were two Petitions for Award – Occupational Disease Law, filed by Theresa Flaherty. The first petition was filed in Ms. Flaherty’s role as personal representative of the estate of Timothy Flaherty. The second petition was filed in her role as a dependent of Timothy Flaherty. Mrs. Flaherty alternatively claimed entitlement to incapacity and death benefits under the “traditional” (non-occupational) provisions of the Maine Workers’ Compensation Act. 

The petitions alleged that Mr. Flaherty's cancer was caused by occupational exposure related to his work as a firefighter. Mrs. Flaherty claimed entitlement to the benefit of the death presumption set forth in § 327 of the Act. The “death presumption” provides:

In any claim for compensation, when the employee has been killed or is physically or mentally unable to testify, there is a rebuttable presumption that the employee received a personal injury arising out of and in the course of employment, that sufficient notice of the injury has been given and that the injury or death was not occasioned by the willful intention of the employee to injure or kill the employee or another. 39-A MRSA § 327. 

Among other things, the employer argued the presumption did not apply because Mr. Flaherty was not unable to testify during the period between his cancer diagnosis and date of death. However, the Board found Mr. Flaherty had no reason to file a claim or otherwise testify concerning his potential exposure until it was discovered that there was a potential causal connection between his cancer and the conditions of his employment. Thus, Mr. Flaherty was “unable to testify” as of the date that potential connection was discovered (June 2012). The Employer also argued that the presumption was inapplicable because Mr. Flaherty was not killed, nor did he die, during the course of his employment. However, the Board found nothing in the language of § 327 that limits the presumption to the period of employment. In addition, § 327 has often been applied to cases where the employee has left employment. 

The Board noted, “[w]hether the presumption arises is determined based on the evidence actually presented and ‘testimony which, within reasonable limits, may be conceived as potentially forthcoming from the employee were the employee available as a witness.’ Therefore, the presumption is properly invoked if the evidence presented to the hearing officer, combined with any facts to which Sullwold may reasonably have testified if he were alive, could rationally result in an award of compensation.” Sullwold v. Salvation Army, 2015 ME 4, ¶ 9, (citing Toomey v. City of Portland, 391 A.2d 325 (Me. 1978)). In this case, the Board found that, if alive, Mr. Flaherty could have provided testimony concerning the nature and scope of his exposure to benzene. The Board found that such testimony, in combination with expert testimony in the record, could rationally result in an award of compensation. Thus, it is presumed that Mr. Flaherty received a “personal injury arising out of and in the course of his employment, and that sufficient notice has been given....” 39-A MRSA § 327.

The Board found Mr. Flaherty suffered a work-related injury in the nature of myelofibrosis as of February 28, 2005. The Petitions for Award – Occupational Disease Law filed by Ms. Flaherty in her role as personal representative and as widow were denied insofar as those petitions alleged claims under the Occupational Disease provision of the Act. Those petitions were granted, however, with respect to the claims made under the traditional Worker's Compensation Act. The employer was ordered to pay 500 weeks of benefits under § 215. 

The case is on appeal before the Workers’ Compensation Board Appellate Division. Among other things, at issue on appeal is the applicability of the death presumption, the burdens of production and proof under the presumption and the interplay between the Occupational Disease provisions in the Act and the traditional Act provisions.