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


Maine WC Alert: Latest Appellate Division Rulings on Health Insurance Payments, Social Security Benefits

The Maine Workers' Comp Appellate Division recently issued rulings in the cases of Rich v. Maine Turnpike Authority and Butler v. City of Portland. Health Insurance Payments Made by Self-Insured Employer for Health Insurance...


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...


Maine WC Alert: Appellate Division Upholds Ruling on Reinstatement Provisions and Termination of Benefits

Maine WC Appellate Division Holds That Ongoing Noncompliance with Reinstatement Provisions in Section 218 Precludes Termination of Benefits for Expiration of Durational Cap Under 213 Section 218 of the Maine Workers’ Compensation Act provides...


Preti Flaherty Ranked Among U.S. News – Best Lawyers 2020 Best Law Firms

Preti Flaherty has been named among the 2020 Best Law Firms by the U.S. News – Best Lawyers rankings. To be eligible for ranking, a law firm must have at least one attorney named...


Maine WC Alert: Appellate Division Reiterates Requirement to Trigger Retirement Presumption

Maine Workers' Comp Appellate Division Reiterates That Working in Customary Job Until Retirement Constitutes “Termination of Active Employment” Sufficient to Trigger the Retirement Presumption In Capitan v. NewPage Paper (WCB 19-10 [App. Div. April...


Maine WC Alert: New Legislation Brings Procedural Changes, Benefit Modifications

LD 756 (“ An Act To Improve the Maine Workers’ Compensation Act of 1992 ”), was signed into law by Governor Mills on June 17, 2019. LD 756 has an effective date of September...


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...


Maine WC Alert: Appellate Division Rules No Consequences Under 218 for Deferment of Receipt of Old-Age Social Security Benefits

In Pratt v. S.D. Warren (No. 19-3 [WCB App. Div. April 30, 2019]), S.D. Warren appealed a decision denying its Petition for Approval of Discontinuance of Incapacity Benefits. An employer may reduce incapacity benefits...


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...


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...