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Behr v. Maine Public Employees Retirement System

Superior Court of Maine, Kennebec

July 23, 2015

SARA BEHR, Petitioner,


Michaela Murphy, Justice

Petitioner Sara Behr appeals, pursuant to M.R. Civ. P. 80C, the Final Decision of the Board of Trustees ("Board") of the Maine Public Employees Retirement System ("Maine PERS or System") denying Petitioner disability retirement benefits. In that Decision, the System acknowledges that Petitioner suffers from fibromyalgia, but determined that she failed to carry her burden of proof to show that this condition caused functional limitations that made it impossible for her to perform her job.

As discussed in greater detail below, the Court denies Petitioner's M.R. Civ. P. 80C appeal because even though the evidence could support a finding to the contrary, the Board's Decision was supported by competent evidence and Petitioner did not make a sufficient showing to overcome the presumption that the Hearing Officer and Attorney General's office acted in good faith.

I. Background

On December 7, 2012, Petitioner filed her application for disability retirement benefits based on Lyme disease, mononucleosis, fibromyalgia, Chronic Fatigue Syndrome, PTSD (anxiety, depression), and insomnia. (Record "R." 3.5.) On January 18, 2013, Petitioner took herself out of work and, by February 22, 2013, used up her accrued vacation and sick time. (R. 3.491.) As a result, February 22, 2013 was Petitioner's last date in service with her employer, the Department of Transportation ("DOT"). (Id)

On April 23, 2013, the decision of the Executive Director's Designee ("EDD") issued. (R. 1.1.) The EDD Decision denied Petitioner's application for disability on all conditions. (Id.) Of particular relevance, the EDD Decision determined that the medical evidence indicated support for the condition of fibromyalgia, but "the records are insufficient to determine functional limitations, therefore it is not impossible for [Petitioner] to perform the essential duties of [her] job as of February 22, 2013 (last date in service)." (Id.)

Petitioner appealed and Jonathan B. Huntington, Esq., was assigned as hearing officer. (R. 2.1; see R. 5.1.) On June 19, 2013, a pre-hearing conference was held at which Petitioner withdrew and waived her right to appeal the denial of the conditions of Lyme disease, mononucleosis, PTSD, anxiety, and insomnia. (R. 5.1.) On November 6, 2013, a hearing was held on Petitioner's appeal. (See R. 189.1-189.2.) OnNovember8, 2013, Petitioner withdrew and waived her right to appeal the denial of the condition of Chronic Fatigue Syndrome. (R. 18.1.) Evidence closed on December 4, 2013. (R. 23.1)

On March 6, 2014, the Deputy Executive Director of the System determined there was no basis to change the EDD's decision. (R. 24.1.) This decision was accompanied by two memoranda from the System's Medical Board dated February 6, 2014 and March 6, 2014, respectively.[1] On March 10, 2014, a briefing schedule issued and thereafter the parties submitted written argument to the Hearing Officer. (See R. 28.1-28.10; 30.1-30.10.) On June 12, 2014, the Hearing Officer issued the Recommended Decision For Comment, for the parties' submission of written comments. (R. 31.3-31.13.) The Recommended Decision for Comments found that Petitioner did not "meet her burden of proving the existence of medically based functional limitations associated with fibromyalgia." (R. 31.13.) It also found that there was a causal relationship between Petitioner's diagnosis of depression and her fibromyalgia. (Id.) It explained, however, that the references to "depression" were "more likely references to [the doctors'] impression of [Petitioner's] reaction to her condition" and were "not persuasive indicators of a definitive psychiatric diagnosis of major depressive disorder." (Id.)

Petitioner submitted comments to this decision on June 24, 2014. (R. 34.1-34.6.) In her comments, Petitioner agrees that her "major depression episodes are, and were, due to the medical condition of fibromyalgia." (R. 34.1.) On August 7, 2014, the Hearing Officer issued the Final Recommended Decision. (R 36.2-36.12.) The Final Recommended Decision, as discussed in greater detail below, found Petitioner did not meet her burden of proving medically based functional limitations stemming from her fibromyalgia. (R. 36.12.)

On August 19, 2014, Petitioner requested a review pursuant to System Rule 702(16) and 5 M.R.S. § 17106-A ("section 17106-A review"). (See R. 37.1; 38.1.) On September 10, 2014, the section 17106-A review issued and found the Final Recommended Decision contained no errors of law, was supported by the record as a whole, and did not exceed the hearing officer's authority or jurisdiction. (R. 38.1-38.3.) On October 9, 2014, the Board issued its decision adopting and attaching the Hearing Officer's Final Recommended Decision. (R. at 39.2.) This decision was sent to Petitioner in a letter dated October 20, 2014. (R. at 39.1.)

A. The Board's Adopted Decision

The Hearing Officer's Final Recommended Decision adopted by the Board (hereinafter the "Decision") briefly discussed the background and procedural history of the present dispute and then laid out the myriad exhibits and evidence presented before the Hearing Officer. (R. 39.3-39.5.) Following a brief summary of the parties' respective positions, the Decision set forth its findings of fact.

i. The Decision's Findings of Fact Regarding Petitioner's Medical History

The Decision explained that the record contains numerous documents showing a number of conditions and treatments from several providers over a four-year period beginning in 2009 and continuing through November 2013. (R. 39.6.) The Decision found that Travis Grondin, D.C., described improvements and exacerbations of Petitioner's condition, but "did not provide functional limitations in his notes." (Id. (citing R. 10.116-10.131).) The Decision explained that Dr. Grondin's progress notes stated that Petitioner's condition was chronic, but also provided that Petitioner had no subsequent appointment scheduled and would call when needed. (Id. (citing R. 10.117-10.118).)

The Decision then outlined Petitioner's treatment at Augusta Family Medicine and noted that after August 2012, Petitioner's primary care provider became Timothy Nuce, M.D. (Id.[2]) In Dr. Nuce's first visit with Petitioner, his notes provide that Petitioner requested multiple referrals to specialists for her fibromyalgia. (Id. (citing R. 3.67).) This reference to fibromyalgia, the Decision finds, was the first in Petitioner's history with Augusta Family Medicine and accompanied Petitioner's alleged statement that she has been suffering from fibromyalgia for approximately one year. (Id. (citing R. 3.67).) On January 24, 2013, Dr. Nuce assisted Petitioner with paperwork related to medical leave. (Id. (citing R. 3.99).)

On August 14, 2013, the Decision explained that Dr. Nuce reviewed an "essentially normal" sleep study and noted that he was unable to find a functional capacity evaluation for Petitioner. (Id. (citing R. 10.46).) The Decision then states that at the last visit to Augusta Family Medicine documented in the record, the medical assistant made note of the complaints and history provided by Petitioner. (R 39.6-39.7 (apparently citing to R. 10.40, which stems from a visit to Dr. Nuce at Winthrop Family Medicine, not Augusta Family Medicine).) Dr. Nuce added to the assistant's notes of Petitioner's complaints that "[d]ue to these symptoms and findings it is impossible for this patient to do her regular job duties and functions, " but, the Decision notes, Dr. Nuce did not amplify on the findings or explain the specific limitations or job duties to which he was referring. (R. 39.7 (apparently citing R. 10.42 (" Due to these symptoms and findings it is impossible for this patient to do her regular job duties and functions. I feel that she has most likely exhausted all of the reasonable medical treatments that might restore her to being able to work normally. Unfortunately I think this is more likely permanent. This was discussed with the patient today. She agrees")).)

The Decision then discussed how Petitioner was seen by Catherine Gaynor, F.N.P. beginning in November, 2011. (Id. (citing R. 3.224; 3.226; 3.228).) Ms. Gaynor's last note, dated September, 2013, found that Petitioner's fatigue was "complex" and made it "impossible to do job [sic] on some days, " but that there was "never a consistent pattern." (Id. (citing R. 10.74).) The Decision also discussed Petitioner's treatment with Barbara Cameron, a licensed clinical social worker and Brett VanCott, an acupuncturist. (Id. (citing R 3.185; 3.193; 3.204).)

The Decision then found that, in June of 2012, Petitioner sought care at Inland Rheumatology, but none of the providers at Inland Rheumatology provided any functional limitations related to Petitioner's fibromyalgia. (Id. (citing R. 3.298; 10.109).) The Decision noted, however, that Marci Lowe, A.R.N.P. of Inland Rheumatology agreed that a referral for functional capacity testing would be appropriate. (Id.)

The Decision explained that Petitioner also saw Frank Gentile, P.T. for neck pain. (Id. (citing R 3.264; 3.98).) The notes from Mr. Gentile's last session with Petitioner noted that she had less neck discomfort, but still had restrictions on her range of motion and that further therapy would focus on the upper cervical and suboccipital regions. (Id. (citing R 3.98).) Finally, the Decision noted that Petitioner was last seen by Matthew Johnson, M.D. of Mental Health Associates of Maine, LLC on September 13, 2013. (Id. (citing R 10.115 September 23, 2013 letter from Dr. Johnson to Nurse Gaynor). Dr. Johnson opined, that at the time of his examination, Petitioner had "a mood disorder due to her severe medical condition, " which included fibromyalgia. (R. 39.7-39.8 (citing R. 10.115).)

ii. The Decision's Findings of Fact Regarding Petitioner's Employment

The Decision discussed Petitioner's education and the requirements of her position with the DOT. (R. 39.8.) It then discussed her supervisor's testimony that he was satisfied with Petitioner's performance at her job "until a point in 2012 when he began to think she was not qualified to perform the job." (Id.) The supervisor prepared a written performance evaluation that he intended to cover the period from December 2009 through December 2011. (Id. (citing R. 3.465-3.470).) In the evaluation, he faulted Petitioner for under-performance and for failing to provide the expected level of coaching and counseling to employees under her in the areas of attendance, use of leave time, and internet usage. (Id. (citing R. 3.466; 3.468; 21.170-21.177).) The Board also explained that at some point, the dates on the full performance evaluation the supervisor prepared were altered. (Id. (citing R 21.193).) The Board, however, found this immaterial as the altered and unaltered evaluation forms both reflected Petitioner's performance of her duties during 2012. (Id.)

The Decision next turned to the testimony of Petitioner's spouse, Christian Behr. (Id.) Mr. Behr testified that he began noticing changes in Petitioner's work patterns after December, 2009. He explained that she started having trouble with her physical ability to work during 2011, 2012, and 2013. (Id. (citing R. 21.21).) Approximately two years from the date of the Decision, Petitioner began to stay home from work, call in sick, or go to work later in the day than normal. (R. 39.8-39.9 (citing R 21.9).) The Decision further noted that Petitioner's co-workers noticed changes in her work pattern in the two to three year period preceding her last day at work in January 2013. (R. 39.9 (citing R. 21.64; 21.81-82).) They noticed that she looked fatigued and was absent a great deal during 2012. (Id.) One particular employee felt that Petitioner was unable to supervise him properly due to her absences. (Id.) The DOT terminated Petitioner on January 25, 2014 due to information it received from Petitioner stating that she would be unable to return from her leave of absence. (Id (citing R. 21.41).)

iii. The Decision's Findings of Fact Regarding Petitioner's Functional Limitations

The Decision found that Petitioner's functional limitations varied from practitioner to practitioner and over time. (R. 39.9.) The Decision explained that after Petitioner left her employment on January 18, 2013, Dr. Nuce opined that her period of incapacity began in 2008. (Id. (citing R. 10.9).) The Decision found that this statement was either inconsistent with the other facts in the record or indicates a view that Petitioner's incapacity did not result in limitations interfering with her ability to perform her job functions. (Id.) In a note dated July 9, 2013, Dr. Nuce stated that Petitioner was "unable to perform her full time occupational requirements" because of a "medical condition." (Id. (citing R. 10.16).) The Decision notes that Dr. Nuce did not specify the limitations or the underlying medical condition. (Id.) In a note dated August 26, 2013, Dr. Nuce added that he diagnosed Petitioner with fibromyalgia and was "unable to determine when she can and cannot work." (Id (citing R. 10.20).) Dr. Nuce also wrote that Petitioner needed a "part-time or reduced work schedule of 8 hours per day, 5 days per week, for an unknown, undetermined" period of time and commented that:

[Petitioner] has fibromyalgia. She has severe headaches, feels pain all over her body, she has sleep disturbance and is tired all the time. I don't have a crystal ball and I am unable to determine when she can and cannot work."

(R. 10.20.)

The Decision then found that a healthcare provider questionnaire dated August 16, 2013, which was signed by Dr. Nuce was actually prepared by Petitioner. (R. 39.9 (citing R. 10.24; 19.3).) The Decision explained that Dr. Nuce ...

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