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August  31, 2017

WC Appellate Division decision issued on August 31, 2017 - Satisfying the Burden of Proof

Below is a summary of a decision of the Appellate Division of the Workers’ Compensation Board issued on August 31, 2017. Please contact any member of the Norman, Hanson & DeTroy workers’ compensation practice group if you have any questions concerning the implications of this decision.

Satisfying the Burden of Proof

           In Wickett v. University of Maine System, Me. W.C.B. No. 17-27 (App. Div. 2017), the employee fell down a set of icy stairs and developed low back and abdominal pain. She was eventually diagnosed with a retroperitoneal mass, or an accumulation of fluid in the abdominal area. The employee filed both a Petition for Award and Petition for Payment seeking payment for treatment rendered on account of the retroperitoneal mass, including surgery, as well as for the related incapacity.
           During litigation a report from the treating physician was introduced in which he acknowledged that “I can only speculate” that there was a causal connection between the mass and the injury, and that the temporal relationship between the injury and the diagnosis “certainly make this a likely possibility”. Relying upon these statements, the ALJ found that surgery to remove the mass was causally related to the injury and awarded benefits accordingly.
           As the moving party in both petitions the employee bore the burden of proof. On appeal the Appellate Division recognized that expert medical evidence was necessary unless causation was both clear and obvious to someone with no medical training whatsoever. Medical causation cannot be established on the basis of “speculation, surmise, or conjecture”. In this case the Division recognized that the attending physician was not able to state that there was a probable connection between the injury and the condition which required surgery. Finding that the employee had failed to meet her burden of proof, the Division reversed the decision of the ALJ and found that the employer was not responsible for the cost of surgery and for the disability that followed. The employee was merely entitled to the protection of the Act for the contusion injury.

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