Kevin Thomas v. United Ambulance
Maine Employer's Mutual Ins.
March 16, 2021
CategoriesLegal Causation Compensability Compensability Legal Causation
in the course of employment
Summary from the Troubh Heisler Attorneys
Kevin Thomas v. United Ambulance Service (attached) – Mr. Thomas was a dispatch supervisor whose job required him to sit and use a keyboard and mouse with his arms and hands. On one of his days off, he was at home reaching over his bathtub when he ruptured two cervical discs. He filed petitions claiming that his job caused cervical disc disease resulting in the ruptures at home.
Dr. Bradford’s §312 IME found that Thomas had significant but asymptomatic pre-existing cervical disc disease, and his reaching over the bathtub at home was an exacerbation that was “the straw that broke the camel’s back.” Judge Goodnough adopted Dr. Bradford’s opinion and granted Thomas’s petitions.
United appealed, but the Appellate Division upheld the decision. They held that a gradual injury does not require that the employee have gradually progressing symptomology over time or that the first outward manifestation of the injury occur at work. Instead, it requires only that the injurious activities resulting in injury occur at work.
United argued that the gradual injury became manifest on his day off at home, and therefore did not occur “in the course of employment.” The panel rejected that argument, upholding Judge Goodnough’s decision that, because the degenerative disc disease was caused by work activities during the course of employment, the injury itself occurred during the course of employment. The panel also upheld his adoption of a “delayed action” theory of compensability, in which work activity can cause a compensable injury that occurs outside of the time and place of work.
United also argued that, because Thomas had no symptoms until the injury at home, and because Dr. Bradford’s report contained several factual errors, the record contained “clear and convincing evidence to the contrary” of Dr. Bradford’s findings. The panel disagreed and upheld Judge Goodnough’s reliance on the IME opinion. Finally, United argued that Judge Goodnough failed to apply the Comeau factors to determine compensability, but the panel held that “[t]he Comeau test was not designed to address the delayed-injury situation.”
This decision appears to eliminate the “in the course of” requirement for compensability because, under the panel’s analysis, any injury that is “arising out of” the employment will also occur “in the course of” the employment.