Estate of Jensen v. SD Warren

Insurance Company

Date Decided

November 20, 2020

Panel Members

Elizabeth Elwin

Sue Jerome

Evelyn Knopf


Death Presumption


Death Presumption Occupational Disease Act Work-Related Cancer §327 Asbestos Toomey Hall

File Size

120 KB


Summary from the Troubh Heisler Attorneys

Jensen worked at S.D. Warren for 29 years and developed asbestos-related pleural plaque disease, established as compensable by decree. He also had heart issues and ultimately died of a heart attack. The official cause of death related the heart attack to lung cancer, which the employee claimed was work-related.

His Estate filed a Petition for Award - Fatal and claimed that §327 presumed Jensen’s death was work-related, shifting the burden of proof to Warren to prove that it was not. Warren argued that §327 was inapplicable, and that even if it did apply, the Law Court's 1978 Toomey decision required Warren to show only that it was equally probable that the heart attack was unrelated, shifting back to Jensen the burden of proof by a preponderance of the evidence.

The Estate presented expert evidence that the fatal heart attack was causally related to work-related lung cancer, and Warren presented expert evidence that it was not related. Warren objected to Judge Stovall allowing the Estate to depose its own medical expert, who supported the claim. Judge Stovall applied the §327 presumption, found that Warren did not rebut the presumption of compensability, and awarded death benefits to the Estate.

The Appellate Division upheld Judge Stovall's decision, citing adequate medical evidence supporting the §327 presumption and award. The panel cited the Law Court's 1981 Hall decision interpreting statutory presumptions and concluded the burden of proof fully shifted to the employer once the employee met the §327 presumption standards. The panel held that Judge Stovall was within his discretionary bounds in deciding which experts to believe and in allowing the Estate to depose its own medical expert.

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