Decided: February 3, 2017

Topic: Permanent Impairment

This appellate decision presents an interesting look at burden shifting when permanent impairment [PI] is at issue. The panel felt the employee, Ms. Gowen, had met her burden to produce “some evidence to persuade a reasonable fact-finder of the existence of a genuine issue concerning the percentage of permanent impairment.” Ms. Gowen alleged there were additional neck and upper back symptoms related to her injury, which should then be included in her PI evaluation. The panel then goes on to discuss the shift to L.L. Bean’s ‘ultimate’ burden to prove Ms. Gowen’s PI does not exceed the threshold. However, since L.L. Bean did not address these newly alleged symptoms in her neck and upper back with the assessments, they were deemed to not have met their burden – one which is not clearly outlined in this decision, but seemingly remains at the more likely than not level of most issues within our system.

I’m perplexed by the Appellate Division’s analysis on this issue – I understand the concept includes whole-person permanent impairment, but doesn’t it have to be established as related to the injury before it can be considered? The Strout v. Blue Rock Industries case earlier last year involving this topic, where despite PI remaining below the threshold, benefits were ordered continued, makes it more and more clear that potential PI alone can extend the statutory cap.

An employer’s effort to determine permanent impairment and cap benefits can thus seemingly be halted by an employee’s insistence there are other related symptoms than those previously addressed – which in this case was combined with a discredited medical causation opinion to reach the burden of production. Ms. Gowen raised never-before established body parts as something connected to her injury, but doesn’t she have another burden before she gets to this one? Can this be a ‘genuine issue’ if there’s been no establishment of causation previously? Essentially, the employee here has been able to go through the back door and get continued benefits for body parts she has yet to produce causation on. While I agree with the panel that the opinions on PI should have outlined what they were or were not including in their assessments, the framework laid out by this and other decisions is rendering the 520 week cap a nearly unattainable feat.