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.