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.

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.