Maine Workers’ Compensation Alert: Appellate Division Addresses § 327 Death Presumption Yet AgainMay 11, 2015
In LaValle v. Town of Bridgton, Me. WCB App. Div. Dec. No. 15-13 (April 10, 2015), an employee with a history of heart disease and prior heart attack died from a heart attack after a day of physical labor. His widow filed a Petition for Award—Fatal pursuant to 39-A M.R.S.A. § 215. The parties agreed the presumption afforded by 39-A M.R.S.A. § 327 applied (“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...”). At issue was its application. The Hearing Officer applied § 327 by shifting the burden of proof to the employer to negate the facts established by the presumption, found it failed to meet its burden and awarded death benefits pursuant to § 215. The Appellate Division affirmed.
The decision is interesting in light of Estate of Sullwold v. Salvation Army, 2015 ME 4 in which the Law Court addressed the application of § 327 and held that the Appellate Division in Estate of Sullwold v. Salvation Army, Me. WCB. App. Div. Dec. No. 13-3 (November 8, 2013) did not erroneously shift the burden of persuasion to the employer, but appropriately applied the standard under 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 Estate of Sullwold, Me. WCB. App. Div. Dec. No. 13-3, the Appellate Division found that the more stringent application of § 327 dictates the employers burden of proof).
In LaValle, the Appellate Division relied heavily on Estate of Sullwold, Me. WCB. App. Div. Dec. No. 13-3. LaValle held that to defeat the presumption, an employer must persuade the hearing officer that it was 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 apparently placed on the employer the burden of proving the nonexistence of a presumed fact, making for a confusing decision in light of the Law Court’s ruling in Estate of Sullwold, 2015 ME 4.
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