Estate of Deyone v. ITG Brands

Insurance Company

Liberty Mutual

Date Decided

March 14, 2019

Panel Members

Timothy Collier

Elizabeth Elwin

Evelyn Knopf


Death Presumption Notice


Heart Attack Work-Related Stress Death §327 Mistake of Fact Notice

File Size

243 KB


Summary from the Troubh Heisler Attorneys

Mr. Deyone was a route salesman who, after a day of sales calls, had a heart attack and died in his car in his driveway. His death certificate said that his myocardial infarction was caused by diabetes and tobacco abuse. His wife said that his work was "very stressful," and a physician later retained by the estate said the cardiac event was caused in part by his "longstanding work-related stress and job dissatisfaction." On behalf of the Estate, Ms. Deyone filed a Petition for Award-Fatal more than 3 months after the death, and ITG claimed late notice.

Judge Hirtle denied the petition, finding that the Estate failed to sustain its burden that it provided timely notice. The Estate argued that the notice period was tolled due to Ms. Deyone's mistake of fact that her husband's work caused his death. Judge Hirtle found that the Estate did not meet its burden to establish the notice was timely. The Estate filed a Motion to Reopen the Evidence, to present further evidence of when Ms. Deyone first became aware that the death was work-related, but Judge Hirtle denied that motion. The Estate appealed.

On appeal, the Estate argued that §327 gives it the rebuttable presumption of timely notice, which shifts the burden of proof to the employer to show untimely notice. The panel noted that this was the first case in which it had to address mistake of fact when notice is presumed. The panel concluded that Judge Hirtle "misallocated the burden of proof on the issue of mistake of fact." The panel held that, once the Estate produced some evidence of mistake of fact, ITG had to prove that the mistake of fact ended more than 3 months before the Estate gave notice. Because Judge Hirtle misallocated the burden of proof of notice to the Estate, the panel vacated his decision and remanded the case to him for reevaluation correctly applying the burden of proof.

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