Publications
March 19, 2019 Article

Maine WC Alert: Appellate Division Clarifies Section 327 Death Presumption

Maine Workers' Compensation Appellate Division Clarifies Burdens of Production and Proof Regarding Notice in the Context of the Section 327 Death Presumption

In Estate of Deyone v. ITG Brands, LLC (WCB App. Div. 19-7 [March 14, 2019]), the Estate appealed a decision denying its Petition for Award-Fatal for untimely notice. The decedent died after a day of sales calls on February 8, 2016. On February 17, 2016, the decedent’s primary care physician (PCP) signed the death certificate, listing myocardial infarction as the cause of death. On November 2, 2016, a physician retained by the Estate opined that the death was likely the result of a cardiac event precipitated by, among other things, longstanding work-related stress and job dissatisfaction. The widow asserted that she was not initially aware of the potential work-related nature of the decedent’s death until she met with an attorney in May 2016. The administrative law judge (ALJ) found that the Estate failed to give timely notice as required by sections 301-302 of the Maine Workers’ Compensation Act (providing for a 30-day notice period and extending the notice period to three months after an employee’s death).

The ALJ found that the widow operated under a mistake of fact for some time but that the Estate did not meet its burden to establish that the mistake of act lasted long enough to render notice timely.

The Appellate Division reversed, finding the Estate was entitled to a presumption of timely notice under section 327 of the Act (“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 . . . sufficient notice of the injury has been given . . . .”), which shifts the ultimate burden of persuasion on the issue of notice, including on the issue of mistake of fact, to the employer. Thus, the ALJ misallocated the burden of proof on the issue of mistake of fact. ITG bore the burden to persuade the ALJ that notice was untimely. The Estate, as the party raising the issue of mistake of fact, bears the initial burden of production on the issue, but the ultimate burden of proof that notice was untimely remains with the Employer. Thus, “once the Estate produced evidence sufficient to demonstrate a genuine issue regarding whether it was operating under a mistake of fact, it fell upon [the Employer] to present evidence sufficient to prove that even if the notice period was tolled by a mistake of fact for a period of time, the mistake of fact ended more than three months prior to the Estate giving notice to [the Employer].”

Firm Highlights

Publication

Maine WC Alert: MAE Unit Publishes Guidance on Compliance with Recent Amendments

The Maine Workers’ Compensation Board’s Monitoring, Audit & Enforcement Unit has issued a document to provide guidance on complying with certain recent amendments to the Workers’ Compensation Act in P.L. 2019, c. 344 (LD...

Publication

Maine WC Alert: WCB Orders Remote Hearings Unless In-Person Deemed Necessary

COVID-19 Concerns Prompt Maine WCB to Order That Hearings Be Conducted Remotely Unless It Is Deemed Necessary to Conduct a Hearing In-Person On March 25, 2020, the Maine WCB issued an order regarding the...

Publication

Update on COVID-19 and Maine Workers' Compensation

In this uncertain time, Preti Flaherty wants to assure you we are still providing full coverage for your Maine Workers’ Compensation and Longshore legal needs. This update briefly addresses current laws and also touches...

Publication

Maine WC Appellate Division Addresses Refusal of Suitable Work and Notice

The Maine Workers' Compensation Appellate Division recently addressed cases dealing with refusal of suitable work and notice. Both decisions rely heavily on the specific facts of each case. In the context of a refusal...

Publication

Maine Workers' Comp Alert: Areas of Consideration Due to COVID-19

This alert addresses certain areas of concern with respect to the COVID-19 pandemic and Maine Workers’ Compensation. This alert touches upon new issues to consider, issues of concern for existing claims, and general concerns...

Publication

WC Alert: Recent Developments from Maine's Workers' Compensation Board

Frank A. Graf, MD, Reappointed to Approved List of § 312 Examiners At the February 11 meeting of the Maine Workers’ Compensation Board, Frank Graf, MD, was reappointed to the list of approved § 312...

Publication

Maine Workers' Comp Alert: WCB Announces New Nature and Cause of Injury Codes and FAQ for COVID-19

New Nature & Cause of Injury Codes The Maine Workers’ Compensation Board (WCB) has updated the Injury Description Tables that are used by the International Association of Industrial Accident Boards and Commissions (IAIABC) to...

Publication

Maine Workers' Comp Alert: WCB Transition to In-Person Hearings Likely to Occur No Sooner Than August 2020; Section 312 IME’s Have Resumed

A conference with Maine Workers' Compensation Board Executive Director John Rohde was held last week to discuss the transition to in-person hearings at the WCB. The WCB Subcommittees also met to discuss recent developments...

Publication

Maine WC Alert: Updated Version of Notice of Controversy (WCB-9) Must Be Used Effective February 1, 2020

Following the recent statutory changes to the Workers’ Compensation Act, the Maine Workers’ Compensation Board has updated the language in Box 22 of the Notice of Controversy. This new version should be used as...

Publication

Maine WC Alert: Appellate Division Addresses the Issue of Timely Notice in Two Recent Decisions

For claims for which the date of injury is on or after January 1, 2013, unless otherwise provided by the Maine Workers' Compensation Act, proceedings may not be maintained unless notice of an injury...