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Jalbert v. Maine Public Employees Retirement System

Superior Court of Maine, Kennebec

November 16, 2015


Plaintiff's Attorney Gerard Conley, Jr., Esq.

Defendant's Attorney Christopher Mann, AAG.


Petitioner Elizabeth Jalbert petitions for judicial review, pursuant to M.R. Civ. P. 80C, the Final Decision of the Board of Trustees ("Board"] of the Maine Public Employees Retirement System ("System"] denying Petitioner disability retirement benefits. Petitioner contends that she presented significant evidence establishing that she suffers from permanent disabilities associated with post-concussive syndrome, depression, and anxiety that render it impossible for her to carry out the duties of her teaching job. She contends that the Board's denial of benefits violates statutory provisions, is not supported by substantial evidence on the record as a whole, is affected by errors of law, and is arbitrary and capricious.

Petitioner explains that she is a hard-working, single mother who has worked for approximately twenty-four years as a teacher, despite her long-term depression. Petitioner has worked since the age of 14 or 15 and has spent the majority of her working life at the Dike-Newell Elementary School, at which she received numerous positive evaluations and an upstanding reputation throughout the years. In 2004, Petitioner applied for disability benefits with the System due to bi-polar disorder and anxiety, but withdrew the application after her health improved thanks to consultations with her psychiatrist, Lawrence Fischman, M.D. Over the next eight years, Petitioner used sick leave, but never missed work due to depression.

On January 21, 2012 and nine days later on January 30th she fell twice hitting her head each time. This resulted in a diagnosis of post-concussive syndrome which impacted Petitioner's ability to perform her job. In particular, she was having difficulties with vision, headaches, dizziness, fatigue, and speaking. Petitioner also experienced difficulties reading, was bothered by noise, lost her social life, and became dependent on her husband for assistance in many, often mundane matters.

Petitioner's lifelong friend and co-teacher, Kathy Henrickson and Ms. Henrickson's daughter, Jenner Rice provided unchallenged background information, eye witness accounts, and examples of how Petitioner was transformed from a self-sufficient teacher into a shadow of her former self following the falls.

Petitioner submitted evidence by Dr. Morse, allegedly one of the most respected neuropsychologists in Maine. Dr. Morse found, in pertinent part, that Petitioner was diagnosed with post-concussive syndrome and that her two head injuries close in time increased the risk of recovery difficulties. He diagnosed Petitioner with persistent post concussive syndrome and supported this opinion by pointing to Petitioner's complaints, her observed functioning difficulties-before and after the falls-by Ms. Henrickson, and her neuropsychological testing. He explained Petitioner's functional limitations as: 1) having to very carefully plan every step of the day in advance to avoid memory and concentration problems; 2) frequently requiring breaks and naps due to fatigue; 3) difficulty multi-tasking and switching gears; 4) difficulty expressing herself clearly and fluently; 5) difficulty reading for any length of time; and 6) difficulty processing visual information. Dr. Morse also concluded that "[i]t is impossible for her to perform her duties as a school teacher" and that in his "neuropsychological opinion it is more likely than not that her incapacity is permanent."

Carl S. DeMars, M.D., her primary care provider, examined Petitioner after her two falls, referred her to John A. Taylor, D.O.-Petitioner's treating neurologist-and concluded that Petitioner is unable to work as a teacher, and many other occupations, due to her inability to concentrate and her speech difficulties. Dr. DeMars stated that Petitioner's functional limitations prevent her from concentrating on more than one thing at a time and require her to take longer to complete tasks. Dr. DeMars stated that Petitioner obtained maximal improvement, but is still unable to return to her prior occupation as a teacher-

David C. Lilly, Psy. D., her cognitive behavioral therapist, noted that his findings have been consistent with Dr. Morse's findings in that he observed presentation, communication, and rapportive impairment in daily functioning, although his observation does not constitute an objective or standardized assessment. Dr. Lilly noted that he was not concerned about "malingering" and found Petitioner's efforts in session to be very strong and her work applying strategies to improve functioning and reduce symptoms excellent.

Colin Robinson, O.D., provided an opinion regarding Petitioner's vision and balance issues arising from her post-concussive syndrome. In particular, Dr. Robinson opined that most of Petitioner's functional visual problems are caused by the partial disconnect of her central, focal visual system and peripheral ambient visual system, which can occur after a neurological event. Petitioner's visual problems, however, do not show up on any medical scans.

Maureen R. Halmo, Ph.D., who was treating Petitioner for mental health issues long before her falls, supported her application, but was totally ignored by the Medical Board. Dr. Halmo opined that following Petitioner's second fall, it was clear that she was suffering significant difficulties in communication, and that this was a significant change from her past behavior. Whereas Petitioner could formerly manage a full psychotherapy hour, her energy now waned after thirty minutes. In addition, Dr. Halmo found Petitioner' ability to multitask was diminished, she experienced significant fatigue, and suffered from headaches. Dr. Halmo opined that it is very difficult for her to see how Petitioner could perform as a teacher and hard for her to imagine her improving to the extent that the impairments would not get in her way as a teacher in the future.

Dr. John A. Taylor, D.O., neurologist, found, in pertinent part, that he does not believe Petitioner can perform the essential activities needed to be a school teacher because she lacks the cognitive skills and has difficulty in multiple domains including attention and concentration, which leads to problems with working memory, which leads to problems multitasking and cognitively shifting. Dr. Taylor found that this "makes it inappropriate for [Petitioner] to work in the fast place [sic] and challenging setting of a school system." Dr. Taylor noted that in addition to the cognition problems, Petitioner also has problems with vestibular dysfunction, premorbid anxiety, and depression. He stated at deposition, that while various forms of therapy have helped Petitioner make a recovery, she has presently stagnated. Dr. Taylor concludes that it is unlikely Petitioner will make significant enough gains to be able to return to work as a school teacher in any capacity, based in part on her problems with concentration, speech, and vestibular ocular dysfunction. Dr. Taylor also explained, at his deposition, that people with anxiety and depression-such as Petitioner-are more likely to have worsening anxiety and depression after post concussive syndrome and that it is unlikely she will recover enough to return to work. He stated that at this point, Petitioner's problems have gone on long enough that he doesn't think she is going to recover significantly enough to go back to work. Petitioner contends that Dr. Taylor also concurred with the findings of Petitioner's other health care providers and disagreed with those of the Medical Board.

The System acknowledges that there is factual evidence in the record supporting the award of disability retirement benefits to Petitioner. However, the System claims that Petitioner misrepresents the record when it contends there is no factual support for the decision adopted by the Board (the "Board's Decision" or "Decision").

The System starts by discussing Petitioner's 2004 application for disability benefits. The Decision explains that Petitioner received psychiatric care for many years and "certainly as long ago as 1996 when Andrew Cook, M.D. was treating her for bipolar illness. It also found that Petitioner has been treated by Laurence Fischman, M.D., a psychiatrist, for a condition also identified as bipolar through at least November 2012.[1] Petitioner's 2004 disability application was based on the medical condition of bipolar disorder, as well as anxiety, stress impacting hypertension and other health conditions, pre-diabetes, and irritable bowel syndrome. In support of the application, Petitioner submitted a letter from Dr. Fischman in which he described Petitioner's functional limitations as follows:

Her functional limitations in relation to classroom teaching include: difficulty concentrating; difficulty trying to attend to two or more things at once, or "multi-tasking, " difficulty planning and creating lesson plans; difficulty following or comprehending conversations; difficulty meeting standards for learning objectives; difficulty reconciling demands of students, students' parents and school principal; difficulty tolerating aberrant behavior of ...

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