May 11, 2015 Article

Maine Workers' Compensation Alert: Appellate Division Addresses § 327 Death Presumption Yet Again

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.

For more information on this case or to learn more about Preti Flaherty's Workers' Compensation Group, contact any of our Workers' Compensation attorneys.

Firm Highlights


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...


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...


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: 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 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: 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 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...


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...