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.

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.