No Malpractice In Workers’ Compensation Matter

The Maine Supreme Judicial Court affirmed the grant of summary judgment to a lawyer sued for malpractice based on his alleged negligence in a workers’ compensation matter

Allen argues that she suffered a measureable loss due to McCann’s failure to advise her to perform a work search. However, Allen settled with her employer, and because of the settlement, her proffered damages calculation is speculative. Attorney MacAdam’s assertion, without further detail or explanation, that he believes that he could have settled for more had Allen been receiving an additional $150 per week in workers’ compensation benefits, does not provide a foundation upon which a jury could assess damages without resort to speculation. The other party to the settlement, the employer, certainly has its own settlement criteria, which may or may not have focused upon the weekly benefit rate. Because the factors producing a settlement cannot be ascertained or weighed in hindsight, attempting to calculate an award of damages is speculative. Summary judgment was correctly granted.

The malpractice issue arose after new counsel got involved

In March 2009, Allen hired attorney James MacAdam to represent her in her workers’ compensation claim, replacing McCann. MacAdam advised Allen to do a work search, which she did unsuccessfully, beginning in April 2009. MacAdam sought to use the work search to obtain an increase in Allen’s workers’ compensation benefits, but Allen’s employer raised a res judicata defense. In December 2010, MacAdam sent a settlement demand for $350,000 on behalf of Allen to her employer, and in July 2012, Allen settled her workers’ compensation claim for $300,000.

(Mike Frisch)