Allen v. McCann, CIVIL ACTION DOCKET NO. CV-12-161

• Decision Date: 18 March 2014
• Docket Number: CIVIL ACTION DOCKET NO. CV-12-161
• Parties: BONNIE ALLEN, Plaintiff v. ALEXANDER F. MCCANN, Defendant
• Court: Maine Superior Court

BONNIE ALLEN, Plaintiff v. ALEXANDER F. MCCANN, Defendant

CIVIL ACTION DOCKET NO. CV-12-161

STATE OF MAINE CUMBERLAND, ss SUPERIOR COURT

FILED: March 19, 2014

Date: March 18, 2014

ORDER ON MOTION FOR

SUMMARY JUDGMENT

This matter is before the court on defendant's motion for summary judgment on plaintiff's complaint alleging legal malpractice. For the following reasons, the motion is granted.

BACKGROUND

Plaintiff Bonnie Allen was a mill worker for the Mead Company (Mead).¹ (Supp. S.M.F. ¶¶ 1-2). On June 4, 2002, she injured her neck, back, arms, and shoulders while handling a high-pressure hose at work. (Supp. S.M.F. ¶ 2; Opp. S.M.F. ¶ 2.) Following the accident, plaintiff hired defendant Alexander McCann, Esq. in December 2002 to represent her in her workers' compensation claim. (Supp. S.M.F. ¶ 4.) Plaintiff continued to work full time at Mead under appropriate work restrictions. (Supp. S.M.F. ¶ 5.) Her condition worsened, however, and by August 2004 she had completely stopped working based on the advice of her doctors. (Supp. S.M.F. ¶¶ 6-7; Opp. S.M.F. ¶ 7.) Although Meaddisputed whether she was totally incapacitated, it began paying plaintiff workers' compensation benefits on August 4, 2004. (Supp. S.M.F. ¶ 9.)

In December 2004, Mead offered plaintiff a different job. (Supp. S.M.F. ¶ 11.) Plaintiff's treating physician, David L. Phillips, II, reviewed the job description and determined that plaintiff could not perform the work. (Supp. S.M.F. ¶ 12.) Following Dr. Phillips' advice, plaintiff declined the job and remained out of work. (Supp. S.M.F. ¶ 14.)

In February 2005, plaintiff applied for Social Security Disability Insurance (SSDI). (Supp. S.M.F. ¶ 15; Opp. S.M.F. ¶ 15.) Plaintiff's application was initially denied, but she was ultimately successful in 2007. (Supp. S.M.F. ¶ 16; Opp. S.M.F. ¶ 16.) Plaintiff received $857.10 in monthly benefits. (Allen Aff. ¶ 16; Ex. D, 2.)

In March 2005, Dr. Peter A. Bridgman, performed an independent Section 312² medical evaluation on plaintiff, and in his opinion he stated, "the patient is capable of some limited work with her upper extremities." (Supp. S.M.F. ¶ 18; Add. S.M.F. ¶ 5.) Dr. Bridgman confirmed this opinion in a deposition on June 2, 2005, in which he stated that plaintiff could work with certain restrictions. (Add. S.M.F. ¶ 6.)

In April 2005, Mead offered plaintiff a different job. (Supp. S.M.F. ¶ 19.) Plaintiff reviewed the job with Dr. Phillips and declined the job based on his advice and a visit to the job site. (Supp. S.M.F. ¶ 20; Opp. S.M.F. ¶ 20.) In a letter dated July 6, 2005, Dr. Phillips offered his opinion that "Bonnie Allen is totally and permanently disabled and is unlikely to recover in the near future. There isno medical treatment or surgery that would allow her to fully recover and return to gainful employment." (Supp. S.M.F. ¶ 21.)

On August 20, 2005, Mead suspended plaintiff's total incapacity workers' compensation benefits, claiming she voluntarily refused reasonable employment. (Supp. S.M.F. ¶ 23.) At defendant's request, plaintiff's benefits were provisionally reinstated at a partial incapacity level³ on 9/27/05 pending an evidentiary hearing on 2/9/06. (Supp. S.M.F. ¶ 24.) On 2/1/06, Mead's labor market survey expert issued a report on the stability of the labor market. (Add. S.M.F. ¶ 9.) After the hearing, the transcript of Mead's labor market expert was admitted into evidence on 3/31/06. (Add. S.M.F. ¶ 11.)

On 5/18/06, the hearing officer issued a decision and found plaintiff was unable to perform the jobs that Mead had offered her, but concluded that plaintiff was "partially, as opposed to totally, incapacitated on account of her work injury since August 30, 2005 and continuing." (Supp. S.M.F. ¶¶ 29-30.) The hearing officer found that plaintiff "has been since August 2005 capable of earning about $200/week in the local competitive labor market." (Add. S.M.F. ¶ 13.) The decision provides: "Ms. Allen has not presented evidence of a work search and is therefore not eligible for 100% partial incapacity benefits." (Add. S.M.F. ¶ 14.) Accordingly, plaintiff was awarded partial incapacity benefits at a rate of $308.48 per week. (Add. S.M.F. ¶ 13.)

After reading the May 2006 decision, plaintiff asked defendant whether she should be looking for work. (Add. S.M.F. ¶ 23.) Defendant responded thatshe was not required to look for work. (Add. S.M.F. ¶ 24.) At no time did defendant advise plaintiff to conduct a work search.⁴ (Add. S.M.F. ¶ 15.)

In March 2009, plaintiff hired James MacAdam, Esq. to represent her in her workers' compensation claim. (Supp. S.M.F. ¶ 57.) At Attorney MacAdam's direction, plaintiff began a work search in April 2009 but never found employment. (Supp. S.M.F. ¶¶ 58-59.) Attorney MacAdam intended to use the failed work search to petition for an increase in her workers' compensation benefits. (Add. S.M.F. ¶ 37.) Mead raised a res judicata defense to any change in plaintiff's benefits. (Add. S.M.F. ¶ 37.) On December 7, 2010, Attorney MacAdam demanded a settlement of $350,000 from Mead. (Supp. S.M.F. ¶ 60.) Plaintiff ultimately settled her workers' compensation claim for $300,000. (Supp. S.M.F. ¶ 63.)

PROCEDURAL HISTORY

Plaintiff filed a single count complaint for professional malpractice on 3/29/12. Plaintiff alleges defendant was negligent in failing to advise her to perform a work search prior to her workers' compensation hearing, which caused her to receive partial, as opposed to total, incapacity benefits. Defendant moved for summary judgment on 2/21/13. On 6/12/13, defendant filed a suggestion of bankruptcy to stay the case. On 11/15/13, the court received notice that defendant's bankruptcy case had been dismissed.

DISCUSSION

1. Standard of Review

"Summary judgment is appropriate when there is no genuine issue of material fact that is in dispute and, at trial, the parties would be entitled to judgment as a matter of law." Fitzgerald v. Hutchins, 2009 ME 115, ¶ 9, 983 A.2d 382. "An issue is genuine if there is sufficient evidence supporting the claimed factual dispute to require a choice between the differing versions; an issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v. Hemond, 2008 ME 146, ¶ 10, 956 A.2d 104. To avoid a summary judgment, "[t]he plaintiff must establish a prima facie case for each element of his cause of action." Steeves v. Bernstein, Shur, Sawyer &: Nelson, P.C., 1998 ME 210, ¶ 11, 718 A.2d 186 (quoting Barnes v. Zappia, 658 A.2d 1086, 1089 (Me. 1995)).

"In legal malpractice cases, plaintiff must show (1) a breach by the defendant attorney of the duty owed to the plaintiff to conform to a certain standard of conduct; and (2) that the breach of the duty proximately caused an injury or loss to the plaintiff." Niehoff v. Shankman & Assocs. Legal Ctr., P.A., 2000 ME 214, ¶ 7, 763 A.2d 121. "Proximate cause exists in professional malpractice cases where 'evidence and inferences that may reasonably be drawn from the evidence indicate that the negligence played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably foreseeable consequence of the negligence. The mere possibility of such causation is not enough, and when the matter remains one of pure speculation or conjecture, or even if the probabilities are evenly balanced, a defendant is entitled to judgment.'" Id. ¶ 8 (quoting Merriam v. Wanger, 2000 ME 159, ¶ 8, 757 A.2d 778).

2. Standard of Care and Breach

Plaintiff alleges defendant negligently failed to advise her to perform a work search, which would have resulted in her receipt of the full amount of workers' compensation benefits. The Workers' Compensation Act divides benefits into total incapacity and partial incapacity for work benefits. 39-A M.R.S.A. § 212-13 (2013). For medical issues, including an employee's ability to work, the Workers' Compensation Board shall adopt the findings of an independent medical examiner "unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings." Id. § 312(7).

In Monaghan v. Jordan's Meats, the Law Court explained the three ways an employee can prove entitlement to full workers' compensation benefits:

First, an employee who demonstrates a total physical incapacity, that is, the medically demonstrated lack of the physical ability to earn, can prove entitlement to 'total' incapacity benefits pursuant to section 212 without a showing of any work search or other evidence that work is unavailable.

Second, in limited situations, an employee suffering only partial incapacity to earn may be entitled to 'total benefits' pursuant to section 212 if the employee can establish both (1) the unavailability of work within the employee's local community, and (2) the physical inability to perform full-time work in the statewide labor market, regardless of availability.

Third, a partially incapacitated employee may be entitled to '100% partial' incapacity benefits pursuant to section 213 based on the combination of a partially incapacitating work injury and the loss of employment opportunities that are attributable to that injury. In order to obtain the 100% benefit, it must be established, pursuant to the 'work search rule' that work is unavailable within the employee's local community as a result of the work injury.

Monaghan v. Tordan's Meats, 2007 ME 100, ¶¶ 11-13, 928 A.2d 786 (internal citations and quotations omitted). The court clarified however, that the "work search rule" is a misnomer because "any competent and persuasive evidence toshow the unavailability of work in his or her local community is acceptable, including labor market surveys, or other credible evidence regarding availability of work for a particular employee in the local community." Id. ¶ 16. Nevertheless, in many cases "a work search is the most straightforward and persuasive method of demonstrating the availability...