Name

Daniel Larrabee v. City of South Portland

Insurance Company

Maine Municipal Assoc.

Date Decided

November 25, 2020

Panel Members

Elizabeth Elwin

Sue Jerome

Evelyn Knopf

Categories

Tags

mistake of fact firefighter presumption

File Size

191 KB

Summary from the Troubh Heisler Attorneys

While working both as a per diem firefighter for the Town of Scarborough and an EMT for South Portland in 2007 Larabbe suffered a heart attack while sweeping a floor. In July 2008 the insurer produced a report from Dr. Sze stating the cardiovascular condition was not work related. In 2012 while working as a firefighter for the city of South Portland Larrabee suffered another cardiac event while shoveling snow. At that time he was working per diem for Scarborough.

Larrabee met with an attorney following the second heart attach in 2012 who filed petitions alleging both gradual and acute cardiac injuries against both municipalities for both heart attacks. ALJ Collier denied the petitions against the 2007 injury because the two year statute of limitations had expired. Judge Collier also found that that the municipalities has rebutted the Sec. 328 presumption as to the 2012 gradual injury, but that South Portland had failed to rebut the presumption as to an acute 2012 cardiac injury. 39-A M.R.S.A 328 affords a qualified firefighter with a rebuttable presumption that a cardiovascular injury arises in an out of the course of employment.

The Appellate Division upheld and vacated the decision in part. The ALJ did not err in concluding that Larrabee was not under a mistake of fact until 2012 as to the possible work related nature of his 2007 heart attack. He had told an adjuster he might file a claim and the board had mailed him notice of his rights to bring a petition before the board.

The Panel upheld the ALJ's conclusion that the presumption shifts to the employer the burden to prove the cardiac events did not arise out of and in the course of employment. The ALJ did err in relying on Dr. Sze's later record review report and deposition opinion because that opinion did not negate the presumed fact that firefighting work is causative; he merely adopted an alternative theory. The case was remanded for the ALJ to determine if the injuries were significant aggravations of his pre-existing cardiac condition so at to render the disability compensable.