Decided: October 28, 2016

Topic: Arising out of employment

In a recent en banc decision by the Maine Workers’ Compensation Appellate Division, the panel upheld Administrative Law Judge David Hirtle’s determination that a non-mandatory vaccination injury arose out of the employment. The Workers’ Compensation Board director, Paul Sighinolfi, determined the issues presented by Torrey v. Island Nursing Home warranted consideration by the entire panel of Administrative Law Judges, thus why it is called an *en banc *decision. Also unique is that the oral argument for this case was held live at this past year’s Comp Summit at the Samoset Resort before a large crowd.

This case dealt with a certified nursing assistant (CNA), Jaime Torrey, who was encouraged by her supervisor to get the hepatitis B vaccine, which is recommended by the Centers for Disease Control (CDC) for all healthcare workers. Ms. Torrey received the injection and soon afterwards, her arm became stiff and painful. When her symptoms continued, she sought treatment from her primary care provider, who diagnosed her with Complex Regional Pain Syndrome (CRPS) and eventually took her out of work. At the hearing level, Judge David Hirtle awarded Ms. Torrey a period of total incapacity benefits and an ongoing partial award. The nursing home then appealed.

The issue on appeal was whether the Administrative Law Judge erred in determining that Ms. Torrey’s injury arose out of her employment. The purpose of this requirement is so that employees are compensated for “injuries suffered while and because they were at work.” Comeau v. Me. Coastal Servs., 449 A.2d 362, 365 (Me. 1982) (quoting Bryant v. Masters Machine Co., 444 A.2d 329, 333 (Me. 1982)).

The panel responded to the appeal by summarizing the nursing home’s arguments did not rise to the level of reversible error. On appeal, significant deference is given to the underlying Administrative Law Judge’s application of the Comeau factors. See Fournier v. Aetna, Inc., 2006 ME 71, ¶ 18, 899 A.2d 787. The panel followed by specifically pointing out here, the Administrative Law Judge “need not reach the ‘correct’ conclusion, but a conclusion that is ‘neither arbitrary nor without rational foundation.'” Id. (quoting Comeau, 449 A.2d at 366).

Many of the Appellate Division cases echo the standards by which a decision may be overturned. However, it seems many of the parties seeking such a flip on appeal do not focus their arguments on these specific burdens. The oral arguments provided by Island Nursing Home essentially went so far as to reiterate the same factual issues seemingly provided at the original hearing level. Little focus was directed at the role of the Appellate Division to determine whether the lower decision involved any misconception of applicable law or whether the application of the law to the facts as found was arbitrary. Decisions which apply the proper test legal test and weigh the factors, but do so and reach a conclusion contrary to our argument, may ultimately be frivolous on appeal.

The role of the Appellate Division on appeal “is limited to assuring that the [ALJ’s] findings are supported by competent evidence, that [the] decision involved no misconception of applicable law and that the application of the law to the facts was neither arbitrary nor without rational foundation.” Moore v. Pratt & Whitney Aircraft, 669 A.2d 156, 158 (Me. 1995). While the facts of the underlying case may have been slightly tantalizing, the appeal fell short on raising any issue of significance.

For full text of the decision, visit: Torrey v. Island Nursing Home