KAREN SMITH (Appellant)
v.
MAINE COAST SEA VEGTABLES, INC. (Appellee)
And
MAINE EMPLOYERS’ MUTUAL INSURANCE CO. (Insurer)
Decision No. 20-1
No. A.D. 18-0056
Maine Workers Compensation Decisions
State of Maine Workers’ Compensation Board
January 2, 2020
Conference held: December 4, 2019
Appellant: Karen Smith, pro se.
Attorneys for Appellee: Chelsea A. Suvlu, Esq. Joshua E.
Birocco, Esq. TUCKER LAW GROUP.
PANEL
MEMBERS: Administrative Law Judges Collier, Chabot and Jerome
Jerome, Administrative Law Judge.
[¶1]
Karen Smith appeals from a decision of a Workers’
Compensation Board administrative law judge
(Pelletier, ALJ) granting her Petitions for
Award and for Review in part and awarding her ongoing partial
incapacity benefits for a work-related injury to her right
knee. Ms. Smith maintains that the ALJ erred when failing to
find that she is totally incapacitated due to her work
injury, and by allowing certain surveillance evidence to be
considered by examining doctors. She also asserts that she
was harmed due to ineffective assistance by her WCB Advocate
and by the absence of a hearing transcript due to an
equipment malfunction. We affirm the decision.
I.
BACKGROUND
[¶2]
Karen Smith worked as a baker for Maine Coast Sea Vegetables
(Maine Coast) for approximately ten years. On January 7,
2013, she sustained a twisting injury to her right knee while
handling trays of product. She attempted to continue to work
for several months after the injury. After an MRI revealed
torn menisci, however, she underwent surgery in July of 2013.
She developed chronic right knee pain after the surgery.
Maine Coast voluntarily paid Ms. Smith total incapacity
benefits until September 2016, when it filed a certificate to
reduce benefits. Ms. Smith filed her Petitions for Award and
for Review and a Request for Provisional Order. The board
(Hirtle, ALJ) provisionally restored her benefits at
a partial level.
[¶3]
The main issue in controversy is whether Ms. Smith is totally
or partially incapacitated. Ms. Smith underwent an
independent medical examination by Dr. Mazzei pursuant to
39-A M.R.S.A. § 312 (Supp. 2018),[1] and an
examination by Dr. Kimball pursuant to 39-A M.R.S.A. §
207 (Supp. 2018). Ms. Smith was represented by WCB Advocate
Sandra Osterby. A hearing was held in Machias on November 8,
2017, at which Ms. Smith and her husband testified. Several
exhibits were admitted at the hearing and at a conference in
March of 2018, including a report and deposition transcript
from Dr. Mazzei, a report and updated report from Dr.
Kimball, as well as other records from Ms. Smith’s
treating physicians. The record also includes surveillance
videos, reports, and photographs; and the deposition
transcript of the private investigator who conducted the
surveillance.
[¶4]
The board (Pelletier, ALJ) issued its decree on
August 6, 2018, granting the Petitions in part and awarding
ongoing partial incapacity benefits based on an imputed
full-time earning capacity at less than minimum wage.
Advocate Osterby provided notice on August 9, 2018, that she
was withdrawing her appearance. Without the assistance of an
advocate, Ms. Smith proceeded to file her Motion for Findings
of Fact and Conclusions of Law pursuant to 39-A M.R.S.A.
§ 318 (Supp. 2018), which the ALJ denied. This appeal
followed, also filed pro se.
[¶5]
Soon thereafter, the Appellate Division was informed by board
staff that the recording equipment used at the November 2017
hearing had malfunctioned and the board would be unable to
produce a transcript of the hearing testimony. The Appellate
Division stayed the appeal and remanded the case to the ALJ
for a conference on the issue...
