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August  11, 2017

WC Appellate Division decision issued on August 11, 2017 - PI and Burden of Production

Below is a summary of a decision of the Appellate Division of the Workers’ Compensation Board issued on August 11, 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.

PI and Burden of Production

           In 2004 the Law Court held that regardless of which party files a Petition to Determine Permanent Impairment, the employer bears the burden of proof to establish that the level of PI is below the prevailing statutory threshold, and that entitlement to benefits for partial incapacity is therefore capped. However, if the level of impairment is in dispute, the employee bears a separate burden of production and must present sufficient evidence that a genuine issue exists regarding the level of impairment resulting from the injury. If an employee meets the burden of production, the ultimate burden of proof then shifts back to the employer. A recent decision of the Appellate Division illustrated how this burden-shifting mechanism works.
           In Jensen v. S.D.Warren Co., Me. W.C.B. No. 17-26 (App. Div. 2017), the employee sustained an occupational injury in 2004 and in 2010 was awarded ongoing benefits for 100% partial incapacity by decree. Several years later both parties filed their own Petitions for Review and to Determine Permanent Impairment. The parties agreed that the extent of whole person PI due to the physical effects of the injury was 5%, but the employee argued that emotional consequences due to the injury brought the overall level of PI above the prevailing 13.4% threshold. In support of his position the employee argued that he “was getting a little depressed because of his lack of function”, but a psychiatrist serving as a Section 312 examiner declined to give causation and did not offer an opinion on the possible impact of depression upon the overall PI assessment. Nevertheless, the ALJ found that the employee had met his burden of production by suggesting that the depression was causally related, and that the employer failed to establish that the depression did not contribute to the overall level of PI. Both of the employer’s petitions were denied and the employee continued to receive benefits for partial.
           The Appellate Division vacated the decision of the ALJ, and agreed that the employee had failed to meet his burden of production. The Division observed that evidence sufficient to meet the burden of production must be more than “mere speculation” and must be sufficiently probative to defeat the employer’s attempt to trigger the durational limit if the evidence were believed. In particular, the Division held that a genuine issue regarding the extent of PI cannot be raised by the production of evidence which merely raises a possibility that the overall level of PI exceeds the threshold. As the Division held:

Mr. Jensen’s testimony that he feels depressed due to the work injury does not provide an evidentiary basis for a finding that his permanent impairment level could be above the threshold.

In the absence of any supporting medical evidence, the employee failed to meet his burden of production and the Division held that the ALJ should have established PI at a 5% level. The Division instructed the ALJ to modify his decision accordingly, and ordered the employer to immediately terminate benefits as more than 520 weeks of partial had already been paid.

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