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Allen v. McCann

Supreme Judicial Court of Maine

July 14, 2015

BONNIE L. ALLEN
v.
ALEXANDER F. MCCANN

Argued February 12, 2015.

On the briefs: Marshall J. Tinkle, Esq., Hirshon Law Group, PC, Portland, for appellant Bonnie L. Allen.

Philip P. Mancini, Esq., and Andrew P. Pierce, Esq., Drummond & Drummond, LLP, Portland, for appellee Alexander F. McCann.

At oral argument: Marshall J. Tinkle, Esq., for appellant Bonnie L. Allen.

Philip P. Mancini, Esq., for appellee Alexander F. McCann.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

OPINION

Page 91

MEAD, J.

[¶1] Bonnie Allen appeals from an entry of summary judgment by the Superior Court (Cumberland County, Mills, J. ) in favor of Alexander McCann on Allen's complaint alleging legal malpractice. We affirm the judgment.

I. BACKGROUND

[¶2] On June 4, 2002, Bonnie Allen injured her neck, back, shoulders, and arms handling a high-pressure hose while working at a paper mill. In December 2002, Allen hired attorney Alexander McCann to represent her in her workers' compensation claim. Allen was unfamiliar with workers' compensation law and relied on McCann to guide her through the process from December 2002 until March 2009. Following her injury, Allen continued to work full-time under light-duty restrictions, but her condition worsened over the next two years. In August 2004, Allen's medical providers indicated that she should no longer work for the time being, and she has not worked since.

[¶3] On August 4, 2004, Allen's employer began paying her workers' compensation benefits, but the employer disputed whether she was totally disabled. McCann made a lump-sum settlement demand to Allen's employer for $300,000 in late September 2004. In December 2004, Allen's employer offered her a different job, which she declined based on the advice of her doctor who opined that she currently had no work capacity. Allen's employer again offered her another job in April 2005, which she declined on the advice of her doctors. In August 2005, Allen's employer suspended her workers' compensation benefits based on the opinion of an independent medical examiner that Allen was " capable of some limited work" ; the employer alleged that Allen voluntarily refused reasonable employment. McCann petitioned for reinstatement of Allen's benefits, which were provisionally reinstated on September 27, 2005, pending an evidentiary hearing, which was held on February 9, 2006.

[¶4] In May 2006, the Workers' Compensation Board (WCB) awarded Allen, still represented by McCann, partial incapacity benefits. In his decision, the hearing officer stated, " Ms. Allen has not presented evidence of a work search and is therefore not eligible for 100% partial incapacity benefits," concluding that Allen was capable of earning about $200 per week. Allen was awarded $308.48 per week in workers' compensation benefits. After reading the hearing officer's decision, Allen was confused and contacted McCann, asking if she should be performing a work search. McCann responded:

You are not required to look for work, but the payments you are receiving presume that you have earnings. In other words, you are being treated as if you are presently earning $200 per week . . . . This could change, either up or down, in the event of a change in circumstances . . . . Similarly, if you set out to look for work elsewhere paying $200 per week, and were able to prove that you could not get that work because ...

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