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Allen v. McCann

Superior Court of Maine, Cumberland

May 23, 2014

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

ORDER ON MOTION TO ALTER OR AMEND JUDGMENT

Nancy Mills, Justice, Superior Court.

Before the Court is plaintiff's motion to alter or amend judgment. Plaintiff argues that the Court erred in granting defendant's motion for summary judgment because she raised an issue of fact with regard to whether she would have received total incapacity benefits but for defendant's negligence and with regard to Social Security benefits.

Plaintiff argues that the independent medical examiner, Dr. Bridgman, testified that plaintiff's work capacity was limited to four hours per day. (Add. S.M.F. ¶ 6.) Plaintiff misstates Dr. Bridgman's testimony. In response to a question about whether the plaintiff could perform a specific job, Dr. Bridgman stated:

Well, yes, I don't know if she would be able to do the eight hours for the first day. It might have to be four hours, you know, for a while, then six hours, then eight hours, depending on her learning. This is not something that has to be done by a licensed chemist, you get trained to do it.

(Bridgman Dep. 12:14-19.)[1] He never limited plaintiff to part-time work.

Plaintiff relies on Lelievre v. Pitt Construction, Inc. to argue that Dr. Bridgman's testimony about working up to eight hours per day is not probative. In that case, the issue was whether there was any competent evidence in the record to support the commission's finding that the employee had fully recovered his work capacity on 11/6/79. Lelievre v. Pitt Constr., Inc., 437 A.2d 636, 638 (Me. 1981). The Court held that testimony from doctors, who saw plaintiff prior to 11/6/79, that the employee could not perform heavy labor, that his physical limitations " might improve, " and that should try to return to work, " does not constitute evidence to support a finding of recovery of work capacity." Id. at 638-39. The employer conceded the record contained no evidence that plaintiff could return to anything other than light work.

To receive total incapacity benefits, an employee must demonstrate that she could perform only part-time work, regardless of its availability. Monaghan v. Tordan's Meats, 2007 ME 100, ¶ 12, 928 A.2d 786. Dr. Bridgman testified that she could potentially work up to eight hours per day. Given this opinion, plaintiff has not raised an issue of fact that the hearing officer would have found her to be totally incapacitated.

Finally, plaintiff argues that the hearing officer did find that plaintiff could only perform part-time work. (Add. S.M.F. ¶ 12.) This argument misconstrues the hearing officer's decision, in which he states plaintiff was " probably capable at this time of part-time, light-duty work . . . earning about $200/week in the local competitive labor market." (McCann Dep. Ex. 11, ¶ 13.) The hearing officer's decision was based on what plaintiff could earn in the local competitive labor market. He never reached the issue of whether plaintiff could perform any full-time work, regardless of its availability.

Because the court finds that it did not err in granting summary judgment on the issue of total incapacity benefits, the court does not readdress plaintiff's argument about Social Security benefits.

The entry is

Plaintiff's Motion to Alter or Amend Judgment is DENIED.


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