Caution: EE's testimony is 'evidence' enough to stack PI

The Maine Supreme Court has just decided that, in PI-stacking cases, the Employee can satisfy his burden of production merely by testifying that a later injury aggravated an earlier condition, thus requiring the Employer to prove the contrary, probably by a medical opinion.

In Bisco v. S.D.Warren, 2006 ME 117 (Oct. 17, 2006), the Employee had three work injuries, in 1990, 1995 and 1999. The Board previously apportioned benefits between the injuries: 50% to the 1990 and 1995 arm injuries, and 50% to the 1999 back injury. The Employer petitioned to determine PI, and the Board (H.O. Jerome) found 21% on the 1995 injury and 5% on the 1999 injury.

The Employee testified that, "when driving, he has back pain from the 1999 injury that he has to compensate for by pushing himself up with his hands, which causes pain in the area affected by the 1995 injury." In accordance with the Court's 2004 Farris decision, however, the Board found that the Employee had not met his burden of production and therefore declined to stack the PI from the two injuries, so the Employee faced a 50% reduction in benefits at the expiration of the cap on partial on the 1999 injury.

The Court reversed the Board's decision, however, and held that the Employee's testimony at hearing was enough to satisfy his burden of production, shifting to the Employer the burden of proof that the 1995 arm injury was NOT aggravated by the 1999 back injury. We expect this decision to prompt employee attorneys and advocates to produce similar employee-testimonial "evidence" in all such PI cases, and we suggest that employers get pre-emptive medical opinions to the contrary, to avoid similar results.