FAY E. JOHNSON
THE HOME DEPOT USA, INC., et al
Argued: November 6, 2014.
On the briefs: Douglas S. Kaplan, Esq., Kaplan & Grant, Portland, for appellant Fay Johnson.
Stephen Hessert, Esq., Norman, Hanson & DeTroy, Portland, for appellee The Home Depot USA, Inc. and Helmsman Management Services, LLC.
At oral argument: Douglas S. Kaplan, Esq., Kaplan & Grant, Portland, for appellant Fay Johnson.
Kevin M. Gillis, Esq., Norman, Hanson & DeTroy, Portland, for appellee The Home Depot USA, Inc. and Helmsman Management Services, LLC.
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶1] In this unusual case, Fay E. Johnson, an employee of Home Depot USA, Inc., has been missing since March 2012. Her attorney has filed an appeal from a decision of the Workers' Compensation Board Appellate Division affirming the order of a hearing officer ( Jerome, HO ) that allowed Home Depot to suspend Johnson's workers' compensation benefits until she reappears and petitions for their reinstatement. Johnson's attorney contends on her behalf that (1) Home Depot's service of petitions for review of incapacity and for forfeiture of benefits on him but not on Johnson failed to satisfy 39-A M.R.S. § 307(2) (2013); and (2) the hearing officer lacked the authority to direct Home Depot to pay Johnson's benefits into a segregated account rather than to her designee pending a hearing on the petitions, and to suspend her benefits following the hearing. We affirm the decision.
[¶2] The facts are not disputed. In a September 2010 consent decree, the Workers' Compensation Board (Board) ( Elwin, HO ) found that Johnson was injured while working for Home Depot in January 2009. The parties agreed that Home Depot would pay Johnson benefits at a rate of 50% from March 2009 forward. Also by agreement, the decree included a caveat that " with respect to the level of ongoing incapacity, this decree will not have res judicata effect. . . . if either party moves to alter the extent of incapacity, the burden of proof . . . will not include the necessity to show a change in condition." Johnson designated her attorney to receive and deposit her benefits. When Johnson later had shoulder surgery, Home Depot increased her benefits to a rate of 100%.
[¶3] In March 2012, Johnson disappeared and her whereabouts remain unknown. The Probate Court appointed Johnson's daughter as her temporary conservator with the power to act on her behalf in workers' compensation matters, including the authority to receive and deposit her benefit checks.
[¶4] In June 2012, Home Depot filed two petitions with the Board: (1) a petition for review of incapacity, seeking permission to stop paying benefits; and (2) a petition for forfeiture, asking the Board to declare Johnson's benefits forfeited because she failed to appear for a ...