MAINE SUPREME JUDICIAL COURT                                                       Reporter of Decisions
Decision: 2015 ME 4
Docket:   WCB-13-541
Argued:   November 5, 2014
Decided:  January 22, 2015

Panel:          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.*



                           ESTATE OF GREGORY SULLWOLD

                                                   v.

                               THE SALVATION ARMY et al.

HJELM, J.

         [¶1]     The Salvation Army appeals from an order of the Workers’

Compensation Board Appellate Division affirming the decision of the Board

(Knopf, HO) to grant an award of compensation to the estate of Gregory Sullwold.

The Salvation Army contends that the hearing officer improperly applied the

rebuttable presumption in 39-A M.R.S. § 327 (2014) to conclude that Sullwold’s

death from a heart attack was a personal injury arising out of and in the course of

employment. Because we find no error in the hearing officer’s application of the

presumption, we affirm the judgment.




   *
      Silver, J., sat at oral argument and participated in the initial conference but retired before this
opinion was issued.
2

                               I. BACKGROUND

      [¶2] The hearing officer found the following facts. On February 23, 2010,

Gregory Sullwold died of a heart attack while exercising on a treadmill in his

home. At the time of his death, he was employed by the Salvation Army as a

portfolio specialist and comptroller and was responsible for overseeing investor

relations and the financial interests of the Salvation Army’s Eastern Division,

which were then valued at approximately $2.5 billion.

      [¶3]   Sullwold had lived in Maine since 2009, when he moved from

New York City, where the Eastern Division’s office is located. The Salvation

Army permitted him to work remotely from home, supplying him with a computer,

BlackBerry, and other office materials. On the day of his death, Sullwold started

working at 8:30 a.m. in his home office and continued working until about

3:30 p.m., when he took a break to walk on the treadmill, bringing his BlackBerry

with him. About thirty minutes later, his wife found him unconscious on the floor

with the treadmill still running and the BlackBerry next to him.       Emergency

medical professionals were called, but were unable to revive him.

      [¶4] Sullwold had previously suffered a heart attack in 1993. As a result,

his doctors recommended that he make lifestyle changes by dieting and exercising

regularly, which he did. He continued to be treated for coronary artery disease and

atherosclerosis, and shortly before his death he reported to his doctor that he was
                                                                                                  3

experiencing chest pain while walking his dog. There is no evidence that Sullwold

reported any concerns about his workload or work-related stress to any of his

doctors, although shortly before his death he suffered a panic attack, which he

attributed to “overload.” His wife and coworkers also reported that he experienced

stress from working long hours and traveling frequently, and that this stress was

exacerbated by increased donor contributions after September 11, 2001, and the

effect of the 2008 economic downturn on the Salvation Army’s finances.

       [¶5] On January 28, 2011, Sullwold’s widow filed a petition for award of

compensation with the Workers’ Compensation Board, alleging that Sullwold’s

“work resulted in a myocardial infarction and cardiac arrest.” Following a hearing,

the Board granted the petition. The Salvation Army filed a motion for findings of

fact and conclusions of law pursuant to 39-A M.R.S. § 318 (2011),1 and the

hearing officer issued a decision reaffirming the original order and making further

findings of fact regarding her determination that work stress was a major causal

factor in Sullwold’s death.




   1
      Title 39-A M.R.S. § 318 has since been amended to reflect the reestablishment of the Appellate
Division. P.L. 2013, ch. 63, §§ 10, 16 (effective October 9, 2013) (codified at 39-A M.R.S. § 318
(2014)).
4

        [¶6]     The Salvation Army then filed appeals with the Workers’

Compensation Board Appellate Division and with this Court.2 In March 2013, we

dismissed the appeal to this Court, holding that the case was subject to initial

review by the Appellate Division. See Estate of Sullwold v. Salvation Army,

2013 ME 28, ¶ 8, 63 A.3d 1061. In November 2013, the Appellate Division

affirmed the Board’s award of compensation, concluding that the hearing officer

did not err in finding that the evidence triggered the presumption found in

39-A M.R.S. § 327 and that the Salvation Army failed to rebut the presumption.

We granted the Salvation Army’s petition for appellate review pursuant to

39-A M.R.S. § 322 (2014).

                                        II. DISCUSSION

        [¶7] The Salvation Army argues on this appeal that the hearing officer

erroneously applied the presumption in 39-A M.R.S. § 327 and that she

misconstrued the nature of the burden needed to rebut the presumption.                              In

determining whether the hearing officer correctly applied the presumption, “[w]e

accept the hearing officer’s findings of fact,” Damon v. S.D. Warren Co.,

2010 ME 24, ¶10, 990 A.2d 1028, but review questions of law, including statutory

interpretation, de novo, see McKeeman v. Cianbro Corp., 2002 ME 144, ¶ 7,

    2
      The Appellate Division had recently been re-created, and there was uncertainty over whether the
appeal was appropriately directed to the Appellate Division or the Law Court. See Estate of Sullwold v.
Salvation Army, 2013 ME 28, ¶ 4, 63 A.3d 1061.
                                                                                   5

804 A.2d 406. “When construing provisions of the Workers’ Compensation Act,

our purpose is to give effect to the Legislature’s intent.”                Graves v.

Brockway-Smith Co., 2012 ME 128, ¶ 9, 55 A.3d 456 (quotation marks omitted).

A.      Application of the Section 327 Presumption

        [¶8] Title 39-A M.R.S. § 201(1) (2014) provides that an employee covered

by the Maine Workers’ Compensation Act “must be paid compensation” if he or

she “receives a personal injury arising out of and in the course of employment.”

Pursuant to 39-A M.R.S. § 327,

        In any claim for compensation, when the employee has been killed or
        is physically or mentally unable to testify, there is a rebuttable
        presumption that the employee received a personal injury arising out
        of and in the course of employment, that sufficient notice of the injury
        has been given and that the injury or death was not occasioned by the
        willful intention of the employee to injure or kill the employee or
        another.

The Salvation Army contends that the evidence was not sufficient to generate the

statutory presumption that Sullwold’s death arose out of and in the course of his

employment and that the hearing officer erred in applying the presumption in this

case.
6

        [¶9] In Toomey v. City of Portland, 391 A.2d 325, 330 (Me. 1978), we

interpreted the virtually identical precursor statute to section 327.3 There, we

concluded that the statute contained an “implied requirement of preliminary

linkage” between the employment and the incident underlying the claim. Id. at 331

(quotation marks omitted).             Because the Legislature intended to allow the

presumption “only for the benefit of a compensation claimant whose filing of a

claim is a rational act,” there must be evidence that, were the employee available to

testify, the incident at issue would have “some rational potential of eventuating in

an award of compensation.”              Id. at 330-331.        Under this standard, “hopeless

claims” do not receive the benefit of the presumption, but claims that have a

rational possibility of success do.              Id.     Whether the presumption arises is

determined based on the evidence actually presented and “testimony which, within

reasonable limits, may be conceived as potentially forthcoming from the employee

were the employee available as a witness.”                    Id. at 330-331.        Therefore, the

presumption is properly invoked here if the evidence presented to the hearing

officer, combined with any facts to which Sullwold may reasonably have testified

if he were alive, could rationally result in an award of compensation.



    3
      The statute at issue in Toomey was 39 M.R.S.A. § 64-A (1978), which provided: “In any claim for
compensation, where the employee has been killed, or is physically or mentally unable to testify, there
shall be a rebuttable presumption that the employee received a personal injury arising out of and in the
course of his employment.” See Toomey v. City of Portland, 391 A.2d 325, 328 (Me. 1978)
                                                                                 7

      [¶10] In order for the estate’s claim to be successful without the benefit of

the presumption, the estate would have to establish affirmatively that the injury

(1) occurred in the course of the employment and (2) arose out of the employment.

See 39-A M.R.S. § 201(1). The hearing officer did not err in determining, based

on the evidence presented to her and Sullwold’s inferred testimony, that there was

a rational prospect that the estate could have proved both elements. Consequently,

the hearing officer properly applied the presumption created by section 327.

      [¶11] As to the first element, the evidence in the record supported the

hearing officer’s conclusion that the estate could reasonably have proved that

Sullwold’s death occurred in the course of employment. Whether an injury arose

in the course of employment depends on “the time, place, and circumstances under

which an injury occurs, the place where the employee reasonably may be in

performance of the employee’s duties, and whether it occurred while fulfilling

those duties or engaged in something incidental to those duties.” Feiereisen v.

Newpage Corp., 2010 ME 98, ¶ 6, 5 A.3d 669 (quotation marks omitted). Here,

the hearing officer found that, although Sullwold was walking on the treadmill at

the time of his death, his injury occurred during work hours, in a place that the

Salvation Army sanctioned for his work, and while he was using the BlackBerry

that the Salvation Army provided to him for his work. In fact, as the hearing

officer observed, Sullwold’s use of a treadmill to exercise allowed him to work
8

while exercising. Even without anticipating how Sullwold would have testified if

he had been available, the evidence presented to the hearing officer was sufficient

to demonstrate that this part of the claim was not “hopeless” and that there was a

“rational potential” for success.    See Hall v. State, 441 A.2d 1019, 1021

(Me. 1982) (applying the section 327 presumption to an employee who was injured

at his place of employment, but while engaged in an activity that had not been

sanctioned by his employer).

      [¶12] The evidence before the hearing officer also supported the conclusion

that the estate had a rational chance of proving the second element––that

Sullwold’s injury arose out of his employment. As a general matter, for an injury

to arise out of employment, “there must be some causal connection between the

conditions under which the employee worked and the injury, or that the injury, in

some proximate way, had its origin, its source, or its cause in the employment.”

Feiereisen, 2010 ME 98, ¶ 6, 5 A.3d 669 (quotation marks omitted).           More

specifically, pursuant to 39-A M.R.S. § 201(4) (2014), an injury, such as

Sullwold’s heart attack, resulting from a pre-existing physical condition “is

compensable only if contributed to by the employment in a significant manner.”

See Celentano v. Dep’t of Corr., 2005 ME 125, ¶ 17, 887 A.2d 512. The hearing

officer found that “Ms. Sullwold testified convincingly about the stress her

husband experienced,” including the demands of frequent travel, long workdays,
                                                                                     9

and the effects of the economic recession. In particular, Sullwold “typically began

working early in the day and worked well into the evening,” and “[s]ometimes at

night he would check emails and news on world markets.” Shortly before his

death, he suffered a panic attack that he attributed to the demands of his job.

Based on this testimony, the hearing officer found that Sullwold “was under

extraordinary and relentless stress in performing his duties.”

      [¶13] The hearing officer also found, based on the testimony of a medical

expert, that Sullwold’s “longstanding, chronic and relentless work stress

significantly   accelerated   and   combined     with    his     underlying   coronary

[atherosclerotic] heart disease, which resulted in sudden cardiac death.” Although

there was competing evidence that factors unrelated to Sullwold’s employment

may have contributed to his death, the hearing officer did not err in concluding that

the evidence of work-related stress could rationally result in a determination that

the employment contributed “in a significant manner” to the fatal heart attack and

that it therefore arose out of his employment.

      [¶14] In addition to the facts found by the hearing officer, it was also

reasonably possible based on the evidence in the record that, had Sullwold been

available, he would have augmented the record by testifying that he was under

significant work-related stress and that he was engaged in work-related activities at

the time of his death. Therefore, because the actual evidence, both with and
10

without Sullwold’s possible testimony, created the rational potential for an award

of compensation, the hearing officer did not err in invoking the presumption

created by section 327 that Sullwold’s fatal injury arose out of and in the course of

his employment.

B.    Burden Shifting Pursuant to the Section 327 Presumption

      [¶15] The Salvation Army also contends that the hearing officer erred, after

applying the section 327 presumption, by shifting the burden of persuasion to the

Salvation Army to prove that Sullwold’s death did not arise out of or in the course

of employment. Regardless of which party bears the ultimate burden of proof

when the presumption arises, however, the hearing officer did not shift the burden

of persuasion to the Salvation Army in this case.

      [¶16]    In Toomey, we followed the approach set forth in Hinds v.

John Hancock Mut. Life Ins. Co., 155 Me. 349, 363-64, 155 A.2d 721 (1959),

which held that a presumption is rebutted when evidence is produced that makes it
                                                                                                            11

as probable as not that the presumed fact does not exist.4 391 A.2d at 332. In Hall,

however, we held that “the employer rather than the employee bears the ultimate

burden of proof on the question of whether the injury arose out of and in the course

of employment.” 441 A.2d at 1021. Our holding in Hall was predicated on the

applicable provision of the Maine Rules of Evidence, which at the time governed

Workers’ Compensation Commission proceedings. See id. at 1021 n.2; Johnson v.

S.D. Warren, 432 A.2d 431, 436 (Me. 1981). Pursuant to M.R. Evid. 301(a), a

presumption is rebutted with proof “that the nonexistence of the presumed fact is

more probable than its existence.” The Salvation Army argues here that, because

the Legislature has since abrogated the application of the Rules of Evidence to

Workers’ Compensation Board proceedings, see 39-A M.R.S. § 309(2) (2014), the

Board should reinstate the Toomey approach that requires that the employee

ultimately prove that the injury arose out of and in the course of employment, and

abandon the approach followed by Hall and the Maine Rules of Evidence, which

shifts the burden of persuasion to the employer.

   4
     Although the parties and the Appellate Division recite that the Court in its pre-Hall cases shifted the
“burden of production” to the employer, that characterization is not accurate. The burden of production
merely requires that a party produce “some evidence to persuade a reasonable fact-finder” that a factual
proposition is true. Farris v. Georgia-Pacific Corp., 2004 ME 14, ¶ 16, 844 A.2d 1143 (emphasis
added); see also Trott v. H.D. Goodall Hosp., 2013 ME 33, ¶ 18, 66 A.3d 7 (stating that in order to meet
the burden of production, a party must “present sufficient evidence to raise a genuine issue of fact . . .”).
Hinds and Toomey, however, require that, for the employer to rebut the presumed fact, “the evidence
[must] satisf[y] the jury or factfinder that it is as probable that the presumed fact does not exist as that it
does exist.” Hinds v. John Hancock Mut. Life Ins. Co., 155 Me. 349, 363-64, 155 A.2d 721 (1959).
Although that rule stops “short of shifting the burden of persuasion,” id. at 364, it nonetheless requires a
higher level of proof than would merely satisfy a burden of production.
12

         [¶17] In this case, however, the hearing officer did not shift the burden of

persuasion as prescribed by Hall, but instead applied Toomey, which is exactly

what the Salvation Army argues she should have done. In addressing whether or

not the Salvation Army rebutted the statutory presumption, the hearing officer

quoted Toomey at length and invoked the “as probable as not” standard articulated

in that case. She stated that she was “[a]pplying this standard to the instant case,”

and then determined that the Salvation Army “failed to rebut the presumption.”

Therefore, the hearing officer’s analysis makes clear that she did not impose on the

Salvation Army the burden of persuasion that it contends would have constituted

an error of law.

         [¶18] Because the hearing officer in fact applied the burden that was more

favorable to it, the Salvation Army would not have succeeded under either

standard. Because the Salvation Army has failed to demonstrate prejudice arising

from the hearing officer’s decision, we need not address the nature of the burden

necessary to rebut the statutory presumption.5 See Hall, 441 A.2d at 1022.

         The entry is:

                         Judgment affirmed.


     5
     Although the Appellate Division concluded, as we do, that the Board held the Salvation Army to the
lower burden of demonstrating only that the evidence was in equipoise, it also determined that Hall
remains good law, meaning that to rebut the presumption created by section 327, the employer bears the
burden of persuasion to disprove the presumed facts. For the reasons set out in the text, however, we
decline to reach that issue of law.
                                                                     13




On the briefs and at oral argument:

        Arthur J. Lamothe, Esq., Brunswick, for appellant The
        Salvation Army

        G. William Higbee, Esq., McTeague Higbee, Topsham, for
        appellee Estate of Gregory Sullwold



Workers’ Compensation Board Appellate Division case number 12-0002
FOR CLERK REFERENCE ONLY
