Hall v. State ( 1982 )

WATHEN, Justice,

with whom VIOL-ETTE, Justice, joins, dissenting.

I must respectfully dissent from the majority opinion. The record compels the conclusion that the Commissioner misconceived the procedural impact of 39 M.R.S.A. § 64-A. The majority acknowledges that the effect of that section when combined with M.R.Evid. 301(a) is to place the burden of proof on the employer in establishing that the injury did not arise out of or in the course of employment. Section 64 — A by its terms gave rise only to a rebuttable presumption. In Toomey v. City of Portland, Me., 391 A.2d 325 (1978) this Court discussed the “presumption” and defined its procedural effect. Thereafter, Rule 15 of the Worker’s Compensation Commission Rules and Regulations made the Maine Rules of Evidence applicable to all hearings before the Commission. In this manner the rebuttable presumption was converted into a burden shifting device. The record demonstrates that the Commissioner did not have these procedural developments in mind when rendering his decision in this case. The only specific reference to burden allocation is contained in the Commissioner’s finding that “the rebuttable presumption established by Section 64-A of the Act, that Hall’s death arose out of and in the course of employment, is fully dispelled by the evidence.” (emphasis added) The majority chooses to read the finding as though it stated that the burden of proof established by Section 64-A is fully satisfied. There can be a vast and meaningful difference between these two statements, both in theory and in outcome. In the face of this explicit reference to dispelling a rebuttable presumption, I cannot indulge in the assumption that the Commissioner nevertheless appropriately allocated the burden of proof. The language employed by the Commissioner belies that assumption. The burden of proof is not dispelled, nor is it rebut-table, nor is it a presumption.

The fact that counsel for the petitioner did not squarely address the issue of burden allocation on appeal only establishes that he similarly misconceived the application of Section 64-A. Counsel contends that the Commissioner committed error in finding that the presumption was fully dispelled and error does exist, but for reasons other than those specified. Notwithstanding the lack of precision and clarity in counsel’s challenge, this Court should not assume that the law was appropriately applied when the findings evidence the contrary. Reversible error was committed in this case through a misapplication of the burden of proof and the pro forma decree should be vacated. Gilbert v. Maheux, Me., 391 A.2d 1203 (1978).