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Totman-Berube v. Maine Public Employees Retirement System

Superior Court of Maine

March 12, 2015



M. Michaela Murphy, Justice Maine Superior Court

Petitioner Rhonda Totman-Berube appealed, pursuant to M.R. Civ. P. 80C, from the Final Decision of the Board of Trustees ("Board") of the Maine Public Employees Retirement System ("MainePERS or System") denying Petitioner disability retirement benefits. Along with her appeal, Petitioner also moves to modify and correct the administrative record arguing that the underlying hearing officers and Board erred in determining Petitioner requested an unrestricted adjudicatory process.[1] For the reasons discussed below, the Court denies Petitioner's M.R. Civ. P. 80C appeal as well as Petitioner's motion to modify and correct the record.

I. Background

On November 17, 2010, Petitioner applied for disability retirement benefits due to congenital renal defects, heart palpitations, anxiety, and menopausal syndrome. Record ("K") at 1.6. On August 3, 2011, the MainePERS' Executive Director's Designee ("EDD") concluded there were no functional limitations associated with these conditions. R. at 1.412. Petitioner appealed that decision, and on September 29, 2011 James Smith, Esq. was appointed as hearing officer. See R. at 24.155.

A telephonic preliminary conference was held on December 19, 2011 with Petitioner, hearing officer Smith and a representative from MainePERS. R. at 21.2. In his report of the conference, hearing officer Smith stated that Petitioner "has requested an unrestricted hearing" and noted that if the parties "have any comments or objections regarding this Report and Order, they shall submit them on or before January 3, 2012." R. at 21.2-3.

Petitioner returned to work full time on December 27, 2011. R. at 28.2. On February 23, 2012, hearing officer Smith recused himself because he had previously worked with Petitioner and concluded a conflict could occur. R. at 22.1. The recusal stated, however, that "[t]he parties agreed.. .that the pre-hearing conference could be held, which it was as scheduled." Id. Mark Terison, Esq. was appointed as the new hearing officer.

On April 18, 2013, the System representative sent Petitioner a list of exhibits to be introduced at the hearing. R. at 28.1 On May 9, 2012, the hearing was held. R. at 33. During the hearing, Petitioner argued against the admission of additional evidence contending that she requested a restricted hearing. Kg. R. at 33.36. In support, Petitioner pointed to a report of the pre-hearing conference she prepared, which stated that Petitioner requested a restricted hearing. R. at 33.150. Petitioner's report is dated April 13, 2012, but was not circulated until the date of the hearing. R. at33.154. Petitioner also argued that she did not receive hearing officer Smith's report of the pre-hearing also argued that she did not receive hearing officer Smith's report of the pre-hearing conference until February, after the date to protest the determination of a restricted hearing had already passed. R. at 33.49. Petitioner claims this deprived her of the opportunity to object to the unrestricted nature of the hearing. R. at 33.50. The System's representative agreed that he did not receive a copy of the pre-hearing conference report "until a later date as well, " but pointed out that Petitioner could have contacted the System or the hearing officer to object in a timely manner. Id. The System argued Petitioner only objected to the nature of the hearing after the System sent Petitioner additional information that supported its position. Id. During the hearing, Petitioner also testified that she returned to work in December, 2011.

Following the submission of additional filings and emails by Petitioner objecting to the unrestricted nature of the proceedings, hearing officer Terison issued an order finding that Petitioner requested an unrestricted appeal. R. at 43.2. The order explained that hearing officer Smith's report clearly stated that Petitioner requested an unrestricted appeal. R. at 43.1. It further noted that Petitioner was provided an opportunity to comment on or object to the report on or before January 3, 2012, but did not do so. Id. In addition, it stated that Petitioner submitted new medical information on February 23, 2012, which would not have been permitted for an expedited, restricted appeal. Id.

On July 17, 2012 the EDD affirmed her original denial, after a review of the complete record, including the hearing transcript. R. at 44.1. The parties filed simultaneous post-hearing briefs on August 28, 2012. R. at 54.1, 55.1. Hearing officer Terison also permitted the Petitioner and MainePERS to file reply briefs on September 14, 2012, and September 28, 2012, respectively. R. at 59, 63.

Subsequently, hearing officer Terison issued a Recommended Final Decision on December 21, 2012 arguing the Board should affirm the EDD's denial of disability retirement benefits to Petitioner. R. at 67.8. Petitioner timely submitted comments critiquing the Recommended Final Decision. R. at 75.

On March 11, 2013, the hearing officer transmitted an un-modified Recommended Final Decision to the Board and issued an order refusing to accept proof of an adverse employment action filed by the Petitioner because the evidentiary record closed months ago. R. at 80.1, 82. Subsequently, Petitioner filed a request for hearing prior to the issuance of a Final Decision, a request to take official notice of adverse evaluations, which allegedly contradict the hearing officer's determination that she suffered no adverse evaluations resulting from her incapacity, and a motion to disqualify hearing officer Terison on grounds of bias and misapplication of law. R. at 83.5, 86.1, 90.1.

On May 23, 2013, the Board remanded the case to hearing officer Terison to address Petitioner's assertion that she had a pending request for a hearing regarding the unrestricted nature of the May 9, 2012 hearing explaining that while "[t]he record is resplendent with instances where the Hearing Officer appears to have previously ruled upon the same issue(s), " Board counsel was unable to determine if Petitioner's December 31, 2012 email had been specifically addressed. R. at 103.1. Hearing officer Terison modified the Recommended Final Decision to address the Board's concerns and resubmitted the Decision without further change. R. at 104.1. Due to the "specific nature of the remand, " hearing officer Terison did not permit a comment period for the parties. Id. The Board determined this was error and remanded the Decision, enabling the parties to file comments by July 11, 2013. R. at 107, 108. Petitioner submitted comments on July 11, 2013. R. at 110.1-10. Hearing officer Terison against transmitted his Recommended Final Decision, without changes, to the Board on July 29, 2013. R. at 111.1.

Following a number of motions and appeals by Petitioner, Petitioner requested and was granted an opportunity for oral argument before the Board, not to exceed fifteen minutes. R at 122.1. After argument, the Board issued its decision and order on October 10, 2013. Rat 125.1.

A. The Board's Decision

The Board's Decision first explained that Petitioner is presently employed as an office specialist with the Maine Workers' Compensation Commission and is admittedly able to perform the tasks assigned to her at work. R. at 125.4. The Board then explained that while Petitioner suffers from a congenital variation or abnormality in kidney development, it agreed with the assessment of urologist Michael R. Curtis, M.D., that "no urological diagnosis prevents gainful employment or current position." Id. The Board explained that while Petitioner only saw Dr. Curtis once and he was not one of her treating medical providers, it agreed with Dr. Curtis' assessment that she was not experiencing pain due to her kidneys. Id.

The Board further found that despite complaints of anxiety, Petitioner is, according to a November 6, 2008 note from John Smith, D.O., a "[v]ery high functioning individual." R. at 125.5. This note was repeated in Petitioner's history when she was treated by Diane Handler, P. A., on March 30, 2010 for migraine headache, as well as follow-up care for symptoms of anxiety. Id. P.A. Handler listed palpitations, anxiety, and headache among her "impressions." Id. Subsequently, on April 7, 2010 David Frost, M.D., opined that the heart palpitations Petitioner suffered "sound more benign" and recommended she reduce her caffeine intake of five drinks or more per day. Id. Dr. Frost planned an "event monitor, " but subsequently determined that "things looked quite normal" and determined that Petitioners' palpitations "would not affect employment" and could cite "no specific reason to suggest she is disabled." Id. The System's Medical Board reviewed the medical record and found evidence of anxiety, but still determined Petitioner was a "high functioning" individual with no functional limitations attributable to anxiety. Id. Similarly, it found no evidence that Petitioner's heart palpitations resulted in any functional limitations that would impair her ability to work. Id.

On August 31, 2010 Maylene Peralta, M.D., an endocrinologist, diagnosed Petitioner with menopausal syndrome, likely with underlying anxiety. Id. Nothing in Dr. Peralta's report to MainePERS, however, concerned any function limitations Petitioner may have suffered due to her condition. Id. To the contrary, Dr. Peralta found Petitioner's behavior, mood, speech, and thought were all "normal." Id. The System's Medical Board accordingly found nothing in the medical records demonstrated functional limitations connected to menopausal syndrome. R. at 125.6-7. Nevertheless, Petitioner was placed on an unpaid medical leave from December 2010 through December 27, 2011 due in part to menopausal syndrome. R. at 125.7.

On May 31, 2011 Dr. Frost commented that Petitioner should keep hydrated, but otherwise identified no specific cardiac cause or recommendation regarding the palpitations. Id. On June 1, 2011, James E. White, Ph.D., formally diagnosed Petitioner with "generalized anxiety disorder, " but found no evidence of a thought disorder. Id.

Finally, the Board explained that on December 26, 2011, Petitioner was permitted to return to work by her family nurse practitioner for a 32 to 40 hour week with no lifting over fifty pounds or prolonged standing. Id. Petitioner conceded that except for a few materials for meetings, she is not required to lift in order to perform her job. Id.

Based on these findings of fact, the Board found no functional limitations making it impossible for Petitioner to perform the essential duties of her job due to renal congenital defects, menopausal syndrome, heart palpitations or anxiety. R. at 125.9-10.[2]In particular, the Board explained that Petitioner did not carry her burden to prove that it was impossible for her to perform her duties as an Office Specialist II due to her renal congenital defects. This is because Dr. Curtis unequivocally stated that "no urological diagnosis prevents gainful employment or current position." R. at 125.9. The Board explained that viewing the record in its entirety, including the fact that Petitioner continues to perform her job and has been able to do the tasks assigned to her at work, "the hearing officer could not conclude that her kidney condition and associated symptoms result in functional limitations that make it impossible for her to perform the essential duties of her job." Id.

Regarding menopausal syndrome, the Board determined that Petitioner's application "fares no better" because nothing in Dr. Peralta's opinion amounts to functional limitations making it impossible for Petitioner to work at her administrative office job and Petitioner has in fact continued to work at her job. Id. While the Board recognized that Petitioner "may have difficulties doing the job" she did not prove by a preponderance of the evidence that it was impossible. Id.

In determining Petitioner's heart palpitations did not make it impossible for Petitioner to perform her job, the Board relied on Dr. Frost's opinion that the Petitioner's palpitations "would not affect employment." R. at 125.10. In particular, the Board cited to Dr. Frost's opinion that "things looked quite normal" and that ...

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