The opinion
een
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
a4 DOCKET NO. AP-02-72
saa 8 4 iG, A AS 19 Th a c wa Sty Ss
LINDSAY KNAPP,
Petitioner
Vv.
MAINE WORKERS’ COMPENSATION DECISION AND ORDER
BOARD,
Defendant
and
MAINE EMPLOYERS’ MUTUAL
INSURANCE COMPANY,
Party-In-Interest RAR 28 anu
This matter is before the court on the appeal of the plaintiff from the
decision of the State of Maine, Workers’ Compensation Board (the “Board”),
pursuant to M. R. Civ. P. 80C.
BACKGROUND
On September 16, 1993, the petitioner, Lindsay A. Knapp, within her
first week of employment as a chef at Fred’s Emporium, suffered a work-related
injury when she fell through an opening in the kitchen floor. (R. Vol. III at
1219.) Fred’s Emporium was owned by Robert Fortier and insured by Maine
Employers’ Mutual Insurance Company (“MEMIC”). (R. Vol. I. at 44.)
The Board heard the petitioner’s case, and pursuant to a decree dated
October 30, 1997, which was subsequently adjusted pursuant to a decree dated
February 17, 1999, the petitioner was awarded compensation for time lost from
work for a closed-end period of time. (R. Vol. I. at 44-47.) The 1997 decree
found the petitioner’s average weekly wage to be $448.90, and it also ordered
MEMIC to pay certain medical bills. (R. Vol. I at 49-50). However, the Board
found that the petitioner had not met her burden of proof that she continued
to be affected by the accident and determined that no further compensation
would be due after the set closed-end period of time. (R. Vol. I at 46.) The
petitioner appealed the 1997 decree to the Law Court pursuant to 39-A
M.R.S.A. § 322; review of the appeal was denied. (R. Vol. I at 52.)
In a motion dated October 13, 1998, the petitioner alleged, inter alia, that
that her former employer, Mr. Fortier, had lied about her average weekly wage
during a June 11, 1996 hearing before the Board. (R. Vol. I at 10.) On January
4, 1999, this issue was referred to the Board’s Abuse Investigation Unit (the
“AIU”). (R. Vol. lat 6.) In her AIU position papers, the petitioner raised several
additional issues. (R. Vol. I at 19-28 & 39-40.)
On February 28, 2001, the AIU sent a letter to the parties regarding its
determination that pursuant to 39-A M.R.S.A. § 360(2), petitioner’s complaints
should be referred to a Hearing Officer for a Hearing. (R. Vol. I at 64.) Per
MEMIC’s request, the AIU clarified the issues that were being forwarded for
hearing. (R. Vol. I at 103-104.)' The issue of whether MEMIC committed fraud
’ The following issues were referred for hearing:
1) Whether the employer intentionally misrepresented the amount of the
employee’s pre-injury earnings;
2) Whether the employer intentionally misrepresented his reason or reasons for
firing the employee;
3) Whether MEMIC’s representative, Susan Hartnett intentionally misrepresented
the amount of job counseling and vocational rehabilitation Ms. Knapp had
received;
4) Whether MEMIC’s agent, Betsy Audette, intentionally misrepresented to Ms.
Knapp that MEMIC would pay her medical bills;
5) Whether MEMIC’s and the employer’s actions taken as a whole constitutes
fraud meant to deprive Ms. Knapp of her benefits.
(R. Vol. I at 104.)
when it referred to an examination it had set up with Dr. Boucher under 39-A
M.R.S.A. § 207 as an independent medical exam (“IME”) was not originally
referred for a hearing, but was later included after the petitioner requested its
reconsideration by the AIU. (R. Vol. lat 104 & 119.)
On November 15, 2002, the Hearing Officer issued a decision denying all
of the claims raised by the petitioner against MEMIC. (R. Vol. II] at 1217-27.)
Pursuant to 5 M.R.S.A. § 11002, the petitioner filed an appeal to this court
requesting that the agency decision be reversed with respect to all counts with
the exception of the count concerning the insurer’s late payment of medical
bills. (R. Vol. III at 1232.) In her brief, however, the petitioner raises additional
issues not referred to or determined by the Hearing Officer, as well as elects not
to directly appeal certain portions of the Hearing Officer's decision. (Pet. Br. at
1-2.)
DECISION
In an 80C appeal, the court reviews the administrative record to
determine whether the agency’s findings are supported by any competent
evidence, as well as whether the agency correctly applied the law to the
particular facts of the case. Seider v. Bd. of Examiners of Psychologists, 2000
ME 206, 1 8, 762 A.2d 551, 555. The court will not disturb an agency decision
unless the record before it compels a contrary result. Lewiston Daily Sun v.
Unemployment Ins. Comm'n, 1999 ME 90, 1 7, 733 A.2d 344, 346. The Board’s
findings of fact may be reversed on appeal if the court determines that they are
unsupported by substantial evidence on the whole record. 5 M.R.S.A. §
11007(4)(C)(5) (2002).
“The court may not substitute its judgment for that of the agency merely
because the evidence could give rise to more than one result.” Dodd v. Sec’y of
State, 526 A.2d 583, 584 (Me. 1987). In reviewing an agency decision, the issue
before the court is not whether it would have reached the same conclusion as
the agency, "but whether the record contains competent and substantial
evidence that supports the result reached." CWCO, Inc. v. Superintendent of
Ins., 1997 ME 226, 1 6, 703 A.2d 1258, 1261 (citation omitted). “The burden of
proof rests with the party seeking to overturn the decision of an administrative
agency.” Seider, 2000 ME 206, § 9, 762 A.2d at 555 (citation omitted); see also
Seven Islands Land Co. v. Maine Land Use Regulation Comm’n, 450 A.2d 475,
479 (Me. 1982). In cases where conflicting evidence is presented, the Law Court
has repeatedly held that such conflicts are for the fact finder to resolve. Bean v.
Maine Unemployment Ins. Comm’n, 485 A.2d 630, 634 (Me. 1984).
For the following reasons, the court finds that the petitioner has not met
this burden of proof with respect to any of the issues that may be appealed in
this action,” as well as finds that the Hearing Officer acted within her
authority when she denied the petitioner’s request for penalties against
MEMIC.
Reference to 39-A M.R.S.A. § 207 as an IME
The petitioner alleges that the MEMIC committed fraud when it referred
to an examination it had set up under 39-A M.R.S.A. § 207 as an IME,
claiming that the reference to an IME was an attempt to mislead her into
believing that an examination MEMIC scheduled with Dr. Boucher was a
* The court does not address any of the petitioner’s claims not referred to the Hearing
Officer, as these claims are not properly before the court on this 80C appeal. Nor
binding IME pursuant to 39-A M.R.S.A. § 312. To prove MEMIC’s liability for
fraud at the hearing below, the petitioner had the burden of establishing by
clear and convincing evidence that MEMIC: (1) made a false representation; (2)
of a material fact; (3) with knowledge of its falsity or with reckless disregard for
whether it was true or false; (4) for the purpose of inducing the petitioner to
act or refrain from acting in reliance upon it; and (5) the petitioner justifiably
relied upon the representation as true and acted upon it to her detriment. See
St. Francis De Sales Fed. Credit Union v. Sun Ins. Co. of New York, 2002 ME
127, 1 26, 818 A.2d 995, 1003.
The Hearing Officer's determination that this burden was not met is
supported by substantial evidence in the record. First, several exhibits offered
by the petitioner belie the petitioner’s claim that a false representation was
made by MEMIC, as these exhibits, although using the phrase “independent
medical examination” clearly indicate to the petitioner that the examination
was being scheduled pursuant to 39-A M.R.S.A. § 207. See R. Vol. II,
Employee's Ex. 2 at 555; R. Vol. II, Employee’s Ex. 5 at 558: R. Vol. II,
Employee’s Ex. 6 at 560; R. Vol. II], Employee’s Ex. 7 at 562. In addition, the
record contains evidence that contradicts the petitioner’s claim that she
believed that the exam would be a binding § 312 IME because she and MEMIC
agreed on the doctor who would perform the exam, as well as evidence showing
that the referral of the examining physician came from MEMIC alone and that
the petitioner knew that the exam was performed at MEMIC’s request. See R.
Vol. II, Employee’s Ex. 3 at 556; R. Vol. II, Employee’s Ex. 8 at 563: R. Vol. IIL,
Employee’s Ex. 15 at 572-86; R. Vol. II at 689.
does it address the portions of the Hearing Officer’s Decision not contested in the
The record also contains evidence that the petitioner did not rely on Dr.
Bouchard’s exam to her detriment. See e.g. R. Vol. II at 694 (where petitioner
argues that the exam should be given full weight). Finally, as stated by the
Hearing Officer, when MEMIC scheduled the petitioner’s exam, the Board had
not established a list of independent medical examiners as required by 39-A
M.R.S.A. § 312(1). Hence, it would have been impossible for MEMIC and the
petitioner to obtain an independent medical examination pursuant to § 312.
(R. Vol. II at 1224.)
Intentional Misrepresentation of Employer Regarding Pre-Injury Earnings
The petitioner claims that the Hearing Officer erred by not finding that
her former employer intentionally misrepresented her salary in order to cause
her to receive reduced benefits. The petitioner’s former employer testified that
while he did tell the petitioner that she could possibly make $27,000 a year, he
also told her that such money could only be earned if she worked
approximately fifty hours a week. See R. Vol. II at 838, lines 4-12. This
testimony coupled with record evidence that the petitioner was paid an hourly
wage and “never worked that many hours,” see R. Vol. II at 918, provides
adequate record support for the agency's decision.
The record also shows that the petitioner never established that MEMIC
was attempting to cause her to receive reduced benefits. Although the
petitioner believes that her average weekly wage should have been calculated by
dividing $27,000 by fifty-two weeks, this method was not available to her, as
she had not been employed for the requisite 200 days prior to her injury. See
39-A M.R.S.A. § 102(4)(A) (2001). Similarly, while the Board could have
petitioner’s brief.
determined the petitioner’s pre-injury earnings by the number of weeks worked,
this would have resulted in a much lower average weekly wage because Ms.
Knapp only had worked three days prior to her injury. See R. Vol. I at 290; see
also 39-A M.R.S.A. § 102(4)(B) (2001). Accordingly, there is substantial
evidence in the record to support the Hearing Officer’s determination that the
employer did not misrepresent the petitioner's pre-injury earnings in order to
cause the petitioner to receive reduced benefits.
General Allegations of Fraud Against Employer and MEMIC
The petitioner asserts that the Hearing Officer wrongly decided the issue
of whether the actions of MEMIC and her former employer, taken as a whole,
constitute fraud meant to deprive the petitioner of her benefits. The Hearing
Officer's determination reflects an accurate understanding of the law and is
supported by her findings on the four other claims that were referred to her by
the AIU.
First, as discussed above, based on significant evidence in the record, the
Hearing Officer did not find any misrepresentation or fraud with respect to the
petitioner's average weekly wage or the use of the phrase “independent medical
examination.”
In addition, the petitioner alleges that MEMIC knew she had been fired
from her job but misrepresented this knowledge to petitioner so as to deny
petitioner a remedy under 39-A M.R.S.A. § 218. However, the record shows
that the Hearing Officer was justified in finding that the petitioner understood
the nature of her separation from employment. R. Vol. II at 754, lines 7-16.
Further, the Hearing Officer correctly concludes that regardless of whether the
petitioner had been fired, she would not necessarily have had a remedy under §
218 unless she had requested reinstatement to her position and was denied
reinstatement or reasonable accommodation. See 39-A M.R.S.A. § 218 (2001)..
The petitioner was free to request reinstatement and to seek relief under § 218
regardless of whether she was laid off or let go, see id., and sought no such
relief. Therefore, even if the petitioner was able to establish that MEMIC
misrepresented the nature of her termination, which the court does not find,
she cannot claim that she relied on the representation as true and acted on it
to her detriment.
Similarly, the Hearing Officer’s determination that MEMIC’s
representative did not intentionally misrepresent to the Board that she had
received sixteen weeks of vocational rehabilitation is supported by the Hearing
Officer’s legal conclusion that job development is a form of employment
rehabilitation under section 217. See 39-A M.R.S.A. § 217.
Finally, the Hearing Officer’s determination that Ms. Audette, acting as
an agent of MEMIC, did not intentionally misrepresented to Ms. Knapp that
MEMIC would pay her bill was lawful and is supported by the record. While
Ms. Audette did tell the petitioner that the insurer would pay her bills up to
the date of the mediation, see R. Vol. II] at 1041, the Hearing Officer correctly
decided that the insurer’s failure to meet the petitioner’s demands or
expectations regarding the time frame for paying these bills is not tantamount
to fraud or misrepresentation. See R. Vol. III at 1223.
The court, like the Hearing Officer, takes notice of the fact that the AIU
has previously levied a fine against the insurer for failure to pay interest on
monies ordered by decree in 1999. See R. Vol. III at 1226. However, there is
substantial evidence in the record which would still allow the Hearing Officer
to conclude that MEMIC’s actions as a whole did not constitute fraud.
Authority of Hearing Officer
The petitioner’s final argument is that the Board’s AIU had already
determined the legal issue of whether fraud had occurred and that the Hearing
Officer’s authority was limited to determining whether the facts alleged by the
petitioner were true. The court disagrees. See 39-A M.R.S.A. § 360(2)
(requiring a full hearing, before a Presiding Officer, of the merits of a claim
alleging fraud and/or misrepresentation); see also W.C.B Rule Ch. 15,810
(giving the AIU an investigatory role and the Presiding Officer an adjudicatory
role in hearings before an imposition of a penalty). An agency’s interpretation
of its own internal rules, regulations and procedures is given considerable
deference. Seider, 2000 ME 206 4 32, 762 A.2d at 561. It will not be set aside
“unless the rule or regulation plainly compels a contrary result.” Id. (quoting
Downeast Energy Corp., v. Fund Ins. Review Bd., 2000 ME 151, 9 13, 756 A.2d
948, 951).
DECISION
Pursuant to MLR. Civ. P. 79(a), the Clerk is directed to enter this
Decision and Order on the Civil Docket by a notation incorporating it by
reference and the entry shall be:
The decision of the Board is AFFIRMED.
Lop
Dated: June 25, 2004 \
Justice, Superior Court
Date Filed 12-16-02
CUMBERLAND Docket No. AP-02-72
County
LINSAY A. KNAPP
WORKERS' COMPENSATION BOARD
VS.
Plaintiff’s Attorney
Pro-Se
25 GRANITE STREET
PORTLAND, MAINE 04102
b>
wih
Defendant’s Attorney (ME Employers Mutual
John Chapman Esq. Insurance Company)
PO BOX 168 Portland ME 04112
TIMOTHY COLLIER/ JOHN C. ROHDE
ASSISTANT GENERAL COUNSEL
27 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0027