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].”

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