Smith v. Maine Coast Sea Vegtables, Inc.

Insurance Company


Date Decided

January 2, 2020

Panel Members

Bryan Chabot

Timothy Collier

Sue Jerome




Transcript Determination of Total Incapacity

File Size

130 KB


Summary from the Troubh Heisler Attorneys

Ms. Smith was a baker who injured her right knee at work, requiring surgery and causing chronic right knee pain. Maine Coast voluntarily paid her total incapacity benefits for three years and then unilaterally discontinued her benefits, so Ms. Smith petitioned for ongoing total benefits. Dr. Mazzei’s §312 exam report suggested she was totally disabled, but at deposition he testified that she had a full-time sedentary work capacity. Judge Pelletier found she had a partial earning capacity and ordered only partial incapacity benefits.

On her pro se appeal, Ms. Smith argued that her treatment records supported a finding of total disability, but the appellate panel noted that the §312 opinion was “binding” and found competent evidence in her own doctors’ records to support Judge Pelletier’s contrary finding. She also argued that Maine Coast should not have sent surveillance evidence to its §207 examiner Dr. Kimball to review after he had issued his initial report, but the panel found this practice “not unusual” in these cases. She argued that the videos had been edited to remove the times she was out of view, but the panel said Judge Pelletier had the discretion to allow them into evidence anyway.

Finally, she argued that her WCB advocate provided “ineffective assistance of counsel,” but the panel said that standard applies only to criminal cases, not to WC cases, and that the “any alleged deficiency . . . did not affect the outcome” anyway. Although the WCB could not produce a transcript of the hearing for appeal, Judge Pelletier had the parties submit “statements of the evidence,” which the panel found to be consistent with court practice and within his discretion. The appellate panel affirmed Judge Pelletier’s decision limiting her benefits to partial.

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