Comeau v. Maine Coastal Services

CARTER, Justice,

concurring.

The Court’s opinion reformulates the established Maine law of work-connection to be applied under the statutorily articulated standard that, to be compensable, an injury must be one “arising out of and in the course of employment.” 39 M.R.S.A. § 51. Although the opinion studiously avoids the use of the term, it undeniably adopts, for the first time in the law of Maine, the so-called “quantum theory” of work-connection. See 1A Larson, The Law of Workmen’s Compensation § 29 (1979). Though I agree with the result ultimately reached by the majority, I must vigorously express disagreement with what I think to be so unwise and unwarranted a course of judicial revision of established law.

The “quantum theory” of work-connection holds that the “course and arising” components of the statutory formula for determination of work-connection are simply “separate headings for convenience,” id. at 5-354: that “both are parts of a single test of work-connection, and therefore deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other.” Id. (emphasis added) 1 The effect of this abstract construct is to reduce greatly the rigors of the statutory test of work-connection. Its principal thrust is to permit a finding of work-con *370 nection where the evidentiary proof fails to satisfy, as a substantively discrete analytical entity, either the “course” or “arising” components of the test. For that reason, the “quantum theory” functions to accomplish an enormous expansion of the parameters of the work-connection test as that has long been articulated by this Court.

I would point out that the section 51 concept of work-connection frames more potently than any other provision of the Workers’ Compensation Act the outer boundaries of the legislative policy judgments underlying the Act. The application of this provision determines those injuries that are to be subject to compensation under the Act. An injury that cannot meet the requirements of the standards there laid down does not qualify as compensable under the Act.

Under our cases, in order for a worker to be entitled to an award of compensation, it must be established both that his injury is sustained “in the course of” and that it “arise out of” his employment. 39 M.R.S.A. § 51. Wing v. Cornwall Industries, Me., 418 A.2d 177, 178 (1980); Moreau v. Zayre Corp., Me., 408 A.2d 1289, 1292 (1979); Wolfe v. Shorey, Me., 290 A.2d 892, 893 (1972). The burden of producing proof sufficient to satisfy these requirements is on the employee. Cardello v. Mt. Hermon Ski Area, Inc., Me., 372 A.2d 579, 581 (1977); Wolfe, 290 A.2d at 893 . These requirements are distinct legal criteria. Gilbert v. Maheux, Me., 391 A.2d 1203, 1205 (1978). The “arising out of” requirement means that the injury must have “in some proximate way” its “origin, its source, its cause in the employment.” Id. This test is primarily concerned with the existence of a causal connection between the employment and the injury in question. 1 Larson, supra at § 6. It requires “a showing that the injury was caused by an increased risk to which claimant, as distinct from the general public, was subjected by his employment.” Id. at 3-1. See Bryant v. Masters Machine Co., Me., 444 A.2d 329, 337 (1982).

The requirement that the injury be sustained “in the course of” the employment has a different thrust. It “directs attention basically to the temporal and spatial circumstances of the worker’s sustaining of injury.” Wing, 418 A.2d at 179 ; see Moreau, 408 A.2d at 1292 ; Blackman v. Harris Baking Co., Me., 407 A.2d 21, 23 (1979). It requires proof and an ultimate determination that the employee sustained his injury at a time and place reasonably within the requirements of the performance of his work-related duties. Fournier’s Case, 120 Me. 236 , 113 A. 270 (1921). Accordingly, we have said:

It is, therefore, not enough to justify an award of compensation that the general employment situation has causal relation to a worker’s injury, so that the injury may be said to “arise out of” the employment; it is further requisite that the sustaining of injury be particularly tied to a time, a place and the performance of employment duties, or the incidents thereof, such that the injury may be found to have originated “in the course of” employment.

Wing, 418 A.2d at 179 (emphasis added).

These two statutory requirements under prior Maine law have been taken to be discrete elements of a general statutory test of work-connection which is broader than either of them taken individually. See Wing, 418 A.2d at 178-79 . Our cases have maintained a very strict compartmentalization of the two requirements for purposes of analysis. See Wing, 418 A.2d 177 (1980); Moreau, 408 A.2d 1289 (1979); Blackman, 407 A.2d 21 (1979); Gilbert, 391 A.2d 1203 (1978); Wolfe, 290 A.2d 892 (1972); Boyce’s Case, 146 Me. 335 , 81 A.2d 670 (1951); Sullivan’s Case, 128 Me. 353 , 147 A. 431 (1929); Gray’s Case, 123 Me. 86 , 121 A. 556 (1923); Mailman’s Case, 118 Me. 172 , 106 A. 606 (1919). As we have said very recently:

[I]t was not intended that compensation should issue for every disability resulting from an injury sustained while the employee was at work, but only for a disability as to which the precipitating injury was additionally sustained because of the employee’s work.

Bryant, 444 A.2d at 334 (emphasis in original).

*371 I believe, for a variety of reasons, that it is unwise for us to abandon these established principles which have evolved in our case law over a period of at least sixty years. First of all, applying the standard of work-connection established under the Act, we are charged with construing and applying the statutory language to accomplish the underlying legislative intent. 2 The cited Maine case law thus represents the Court’s determination of the Maine Legislature’s intent in enacting section 51. That intent, we have said, is that to be compen-sable an injury must meet both the requirement of proximate causality, on the one hand, and that of spatial and temporal relationship to the circumstances of employment, on the other. I cannot find any indication that the Legislature has ever demurred from our construction of this language or expressed dissent from the determination of legislative intent which that construction implements as the law of this State. There is nothing of recent occurrence to indicate that the Legislature has departed from its intent, so construed and so determined. How, then, can we suddenly posit a loosening of the strictures of the established test of work-connection in construing long-standing statutory language? 3 There has been no showing of injustice in the workings of the established standard of work-connection. Cf. Myrick v. James, Me., 444 A.2d 987, 1000 (1982). There has occurred no sharp shift in societal conditions or legal needs demonstrating any compulsion for a more liberal standard. Id. at 998 . There has been no erosion of legal princi- *372 pies or precedent showing the existing standard to be obsolete, unworkable or productive of unjust results. Id. at 999 . There seems to me to be no basis to believe that this judicial redefinition of one of the most important parts of the Workers’ Compensation Act is appropriate or justifiable. Nisi fractus est, ne repares.

Second, even assuming that there was a demonstrable need for a new standard of work-connection and that the judicial, rather than the legislative, imposition of a new standard could be analytically justified, the “quantum theory” is an unsound standard to substitute for the old one for two reasons: (1) it provides no standard of ascertainable substantive content for application at the commission level, and (2) under our existing standard of appellate review, its application by the commission will not be susceptible of meaningful review on appeal.

The primary advantage of the existing standard is that it segregates, for purposes of analysis of a specific case, considerations of causality (which involve both the determination of fact and the application of legal principle) from considerations of the time-space relationship of the injury to the employment (which primarily involve the determination of facts). Causality considerations require a definition of the nature and scope of the risk, exposure to which resulted in the employee’s injury. It must then be determined whether that risk is one to which the employee is exposed because of his employment. This latter determination is accomplished only by searching out legal principles which serve to define as a matter of policy those hazards that are sufficiently connected to the employment to bring their compensability within the policy goals of section 51 of the Act. The facts of the specific case, as they bear on the relationship between work activity and origination of the injury, must then be found and legal principles applied to them to determine if the injury “arises out of” the employment as a matter of legal cause. If, by this procedure, it is found that the injury does not “arise out of,” that is, that the injury is not legally and factually caused by the employment or some work-related circumstance or activity, clearly the injury is not intended to be compensated for under the Act.

If, on the other hand, the showing of causal connection between the injury and the employment is made out, it must then be determined if the causally connected injury occurred at a time when and at a place where the employee could reasonably be expected to be in the course of his employment. At this step, the analyst seeks to resolve a substantially different question than that of causality: assuming that the injury was caused by circumstances or activities of the employment, did it occur at a time and place that the employee was “in the course of his employment?” Professor Larson has succinctly stated the policy components of this aspect of the work-connection issue:

It has been well established for many years that work-connection activity goes beyond the direct services performed for the employer and includes at least some ministration to the personal comfort and human wants of the employee. It would be inhuman to snatch away compensation protection from a workman each time he takes a momentary rest from his exertions. On the other hand, one can hardly justify an award to a workman who has been sleeping all day instead of working. The problem is to define a principle which will tell us where the line is to be drawn.

1A Larson, supra, § 20 at 5-1 — 5-2 (emphasis added). That principle is one of the space-time relation existent between the employment producing the injury and the circumstances of the injury. Wing, 418 A.2d at 179 . It focuses upon whether the injury “occurs within the period of the employment at a place where the employee reasonably may be in the performance of his duties.... ” Fournier’s Case, 120 Me. at 240 , 113 A. at 272 . This is a question separate and apart from that of whether the employment caused or brought about the injury. Even if causal connection is demonstrated, the statutory language requires a showing that that cause acted on this employee at a time and place when he *373 was within the course of his employment. Thus, the “cause” and “arising” requirements are properly to be treated as analytically distinct criteria to test for work-connection within the purposive meaning of the Act.

The “quantum theory” destroys this compartmentalization, both for purposes of conceptualization and of application, of these analytically distinct criteria. It permits— indeed it requires — the Commissioner to apply them as counterbalancing factors in a loosely-structured format of factors without any articulate guidelines or discernible standards by which he can measure an appropriate level of compliance with either criterion in any fact situation. The process of weighing the level of compliance with one criterion against the level of compliance with the other must necessarily be largely judgmental. Such judgmental comparisons, even if capable of articulation (and in most cases they would not be), would seldom, if ever, be susceptible of objective evaluation and demonstration of error on appellate review.

Under such a standard of work-connection, the Commissioner’s untrammelled discretion, as shaped by his personal values and philosophical views, becomes the dispos-itive factor in determining issues of work-connection. The decision is thus not subject to testing by any objective standard that segregates the discrete impact in the deci-sional process of separable considerations of causal relation and of temporal and spatial connection. The standard of work-connection thus becomes a ball of fluff for analytical purposes. The only prospect of meaningful review would become that of de novo. review, which we have recently abjured. See Hall v. State, Me., 441 A.2d 1019, 1021 (1982); Dunton v. Eastern Fine Paper Co., Me., 423 A.2d 512, 514-16 (1980). The Appellate Division of the Commission has very recently adopted this principle; “The Division will not independently review the record and substitute its judgment of the facts for those of the commissioner who heard the evidence and saw the witnesses.” Chapman v. Bath Iron Works, Decision No. 82-03, slip op. at 2 (Me. Worker’s Comp. Comm.App.Div., June 29, 1982).

Because I am convinced that nothing would do greater harm to the fair administration of the Workers’ Compensation Act than de novo determination on appeal of such technical and intricately factual issues as work-connection, I vigorously object to this adoption of a standard of work-connection that will permit no other meaningful methodology of review. The “quantum theory,” by leaving exclusively to commissioners the full determination on work-connection issues, is in sharp contradiction to the statutory mandate that appellate review be available. 39 M.R.S.A. §§ 103-B, 103-C. Because decisions on work-connection issues are subject to appellate review, we are obliged to provide meaningful review. In order to do that, we must articulate standards of substantive law that are capable of principled application by the commissioners and that provide a basis for objective review. The “quantum theory” prohibits the maintenance of any functionally effective environment for such application or review.

I would affirm the Commissioner’s decision here “[bjecause the Commissioner’s decision involved no misconception of applicable law and his application of this law was neither arbitrary nor without rationale foundation.” Hall, 441 A.2d at 1022 . The majority’s expansion of the work-connection test is therefore unnecessary, unwarranted and unwise.

. That the adoption of the “quantum theory” is the result of the Court’s opinion is clearly displayed by the language there used. It is said that (1) “[a] proper analysis of the question of compensability requires harmonization of both components of the statutory rule and comprehensive analysis of all relevant considerations so as to determine whether a sufficient connection between the employment and the injury exists” 449 A.2d at 366 (emphasis added); (2) both elements of the rule “are, in many cases, inextricably interrelated,” 449 A.2d at 366; (3) an “implication” can be drawn from cited Maine cases that “... when the fact pattern of a case does not fall snugly within the arising out of and iii the course of employment requirement, closer analysis is required to ascertain whether a sufficient work-connection exists to justify an award of compensation” 449 A.2d at 366; (4) those factual propositions that have in the past been the basis for our application of the test “do not create a dispositive checklist; rather, they are but factors on the scale weighing toward or against a finding” of work-connection (at 367); and (5) “[wjhile one factor may not be solely determinative, strong evidence on one aspect of work-connection may sometimes support an award of compensation despite contrary evidence relating to other considerations” (at 367).

. The broader factual considerations that potentially underlie the legislative formulation of the work-connection test require an informed application of not only the most wide-ranging principles of social policy but also of important considerations of economic policy. All of these principles and considerations are peculiarly within the arena of legislative purpose and function, not to mention expertise, and are uniquely beyond, for purposes of accurate analysis, the informational resources, expertise and proper function of the judiciary. The social and economic equation that yields the work-connection test subsumes the resolution of so many issues of such delicate balance and supreme technicality that the potential for error, if not harm, in any revision of it is staggering. Thus, any such revision of its content should be left to the Legislature, which can, at least, assess the magnitude of potential error in those changes it chooses to make and move expeditiously to correct any error resulting from them as soon as it is perceived to be of significance in terms of adverse impact upon legislatively determined policy goals.

. The majority suggests that such a revision of the standard is required because “the factors involved in the concept of work-connection are, in many cases, inextricably interrelated.” 449 A.2d at 366. Such, I suggest, is not in reality the case at all. First, to the extent that the two criteria are interrelated, that has not, for at least the last sixty years, proven to be any significant barrier to purposeful and integrated application of the policy principles underlying section 51 of the Act to particular fact situations. This Court has never before complained of, or even noted, any great difficulty in extricating one factor from another in making work-connection analyses nor in exploring and exploiting the consequences of any discernible interrelationships that may exist between them. I have not had pointed out to me, nor can I visualize, any reason why, on this occasion, our capacity for such reasoned application of these principles is suddenly forestalled.

Second, to the extent that the majority means to suggest that some insuperable barrier to analysis exists because some facts may be relevant to the satisfaction of both criteria, it takes too simplistic a view of the work-connection analysis. It is thoroughly appropriate and wholly to be expected that in exploring complex issues of causality and of temporal-spatial relationship, some factual considerations bearing on employment conditions, scope of duties, circumstances of injury, and medical opinions of the likelihood of aggravating pre-existing physical conditions should have some relevance to causality and, at the same time, some relevance to temporal-spatial relation of injury to employment. That should not prove to be any great obstacle to discrete application of the two legal criteria. The relevance of the common facts will in each instance be different, because the inquiry is different. In the first instance, the facts are examined for the significance they have in determining the existence of a causal connection between injury and employment. In the latter instance, the same facts may be sometimes relevant for their significance in establishing the requisite link in space and time between injury and employment. I do not find that such a duality of significance to distinguishable inquiries creates any obstacle to effective analysis. Even if it were to do so, the difficulty of analysis, alone, does not justify the destruction of the mandated tools of analysis.