April 1, 2021 Article

Maine Workers' Comp Alert: Appellate Division Affirms Decision Involving Gradual Injury That First Manifested at Home, Not at Work

Maine Workers' Comp Alert

In Thomas v. United Ambulance, United Ambulance appealed a Decision (Goodnough, ALJ) granting Thomas’s Petition for Award and granting in part his Petition for Payment. United Ambulance argued that the ALJ erred in determining that an August 14, 2016, injury arose out of and in the course of employment even though the injury manifested off the employer’s premises when Mr. Thomas was not working.

Thomas worked at United Ambulance as a dispatcher beginning in 2004. Although he was promoted to supervisor, he continued to do full-time dispatching. Thomas estimated that he handled 230 to 240 calls per day. He worked ten-hour days, four days a week plus frequent overtime, in a highly stressful environment. He worked in a fixed-posture position performing repetitive movements using a telephone and keyboard.

On August 14, 2016, Thomas was at home, reaching over his bathtub with an arm extended, when he felt a “pop” and immediately felt pain in his neck and left shoulder. He was treated at the emergency department and diagnosed with a thoracic strain. He was ultimately diagnosed with cervical disc herniations at C5-6 and C6-7. He pursued a workers’ compensation claim, contending his cervical disc problems were caused by his employment.

The ALJ based his finding that the injury arose out of the employment on the section 312 examiner Dr. Bradford’s findings. Dr. Bradford found that Thomas worked for many years “in a position with a fixed posture with repetitive if not nearly constant arm postures,” which resulted in a gradual, degenerative neck condition. Dr. Bradford further opined: “The reaching over a bathtub with arm extended may simply have been the “straw that broke the camel’s back,” the maneuver in and of itself [was] probably not sufficient to cause significant disc disease.... I do not feel the bathtub incident, in and of itself, was causative, but simply exacerbated the cervical condition which, as noted above, is related to his work, in my opinion.” The Appellate Division found that the IME’s opinion supports the finding that Thomas developed a degenerative neck condition as a result of his work activities over the years. Thus, the ALJ did not err in finding the neck injury arose out of employment.

United Ambulance argued that Thomas’s injury occurred outside the course of his employment because it occurred on his day off, at home, not while performing his work duties; thus, the injury did not occur at a place where the employee reasonably could be in the performance of his duties and while fulfilling those duties. The ALJ determined that “Mr. Thomas’s neck injury, from a medical perspective, originated in activities that occurred at work over a long period of time.” The ALJ reasoned that the outward manifestation of the injury having occurred at home is not dispositive, noting correctly that the Law Court has found compensable injuries that have occurred off premises. Nor has the Court required an injury to have acquired all of its injurious elements, including the final manifestation of the injury, on the employer’s premises during work hours. The ALJ also based the decision on a “delayed action” theory of work-connection, articulated by Professor Larson. As well, the Appellate Division found the ALJ correctly relied on various Maine cases supporting this. See Stein v. Inland Hosp., Me. W.C.B. No. 19-40, ¶¶ 15-16 (App. Div. 2021) (holding that stroke that occurred nearly four months after the employment ended resulted from a stress-related injury that began before employee left employment); see also Sanders v. Kenkev, W.C.B. 08-02-86-29 (Me. 2012) (holding that a gunshot injury that occurred off premises several months after the instigating incident was compensable based on a delayed action theory). The final test is not whether the ultimate injury happened at work, but whether the injurious activities that caused the injury were undertaken in the course of employment. See Moore v. Daigle & Daigle, Inc., No. 88-232 (Me. W.C.C. App. Div. Dec. 9, 1988) (distinguishing the terms “manifestation” and “consummation” from “arising”).

The Appellate Division affirmed finding competent evidence in the record that the injury fell within the bounds of the employment, despite that its culmination occurred at a time when Mr. Thomas was not working. The Appellate Division effectively held that the test is not whether the symptoms actually occur at work, but whether the activities causing the injury occurred in the course of employment.

Firm Highlights


46 Preti Flaherty Attorneys Selected by Peers for Inclusion in Best Lawyers in America 2022, Including 3 “Lawyers of the Year”

Forty-six Preti Flaherty attorneys have been named to Best Lawyers in America 2022, including four “Ones to Watch” and three “Lawyer of the Year” recipients. Inclusion in Best Lawyers in America is considered a...


Legal Lunches: Workin' for the Weekend

Laura Rideout and John Cronan will participate in a panel discussion called "Workin' for the Weekend: Team Safety Including Wage & Hour, OSHA and Workers' Comp in a Post-COVID World" as a part of...


Maine Workers' Comp Alert: WCB December Updates - Covid-19 Claim Statistics and Appeal Accepted by Law Court

The Maine Workers’ Compensation Board met for its regular business meeting on December 8. Among the items discussed were COVID-19 claim statistics and an appeal accepted by the Law Court dealing with a fascinating...


Maine Workers' Comp Alert: Maine Supreme Court Issues Decision Regarding Statute of Limitations in Coordination of Benefits

Maine Supreme Court Issues Decision in Charest v. Hydraulic Hose Dealing with Unique Statute of Limitations Issue in the Context of the Coordination of Benefits On March 30, 2021, the Law Court issued a...


Maine Workers' Comp Alert: Updates from the WCB February Monthly Business Meeting

The WCB met remotely on February 9, 2021, for its monthly business meeting. Following are some developments with respect to an appeal accepted by the Maine Supreme Court and claims related to Covid-19. COVID-Coded...


Maine Workers' Comp Alert: WCB Updates Guidance on COVID-19 Reporting and Related Requirements

The Maine Workers’ Compensation Board has updated its COVID-19 FAQ with current guidance and reporting requirements. Although the information offered is not legal advice and is not judicially enforceable, it is helpful direction in...


Maine Supreme Court Affirms Decision on WCB Rule 2 §5 Termination of Benefits Prior Notice Requirement

Notice Is Required Prior to Termination of Benefits for Durational Cap Under Former WCB Rule, Even When Discontinuance Is Sought by Petition Weekly compensation for partial incapacity benefits under the Workers’ Compensation Act are...


Maine Workers' Comp Alert: WCB Meeting Notes for June 2021

The following are highlights from the Maine Workers’ Compensation Board’s meeting of June 8, 2021. Attorney Kate Gatti Rooks Appointed for Partial Term as Administrative Law Judge in Portland Attorney Kate Gatti Rooks was...


Maine Workers' Comp Alert: WCB Revises Fee Schedule

The Maine Workers' Compensation Board has completed the annual update of its Medical Fee Schedule. Appendix II (professional fees) and Appendix IV (outpatient facility fees) have been updated in accordance with Title 39-A M.R.S.A...


How to Avoid Misclassifying Your Employees Under the Maine Workers’ Compensation Act

What criteria are necessary to classify someone as an independent contractor and how can employers avoid misclassification and the repercussions that come with it? In this article, Preti Flaherty attorney and Mainebiz guest columnist John...