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Heath v. Board of Trustees, Mainepers

Superior Court of Maine, Kennebec

October 13, 2016

SHANE HEATH, Petitioner


          Michaela Murphy Justice, Superior Court

         Before the Court is Petitioner's appeal of the denial of his application for disability retirement benefits by MPERS.

         I. Background

         a. Medical

         In 2003, Petitioner first met with Dr. Rice for an eye injury resulting from playing softball. (R. at 3). According to Dr. Rice's February 19, 2014 report, Petitioner had suffered "substantial permanent vision loss in the left eye to glaucoma and showed signs of incipit glaucoma in the right." (R. at 43.5). Dr. Rice prescribed treatment with drop therapy, which Petitioner followed for several years. (R. at 43.5). Petitioner developed a traumatic cataract in the left eye. (R. at 43.5). Dr. Rice removed the cataract in 2008. (R. at 43.5). Thereafter, Petitioner's vision was significantly improved to 20/20 in his left eye, although he was diagnosed with irreversible and substantial visual field loss due to glaucoma. (R. at 43.6). In December 2012, Petitioner complained to Dr. Rice that he suffered severe glare affecting both night and day driving. (R. at 43.6). Dr. Rice successfully performed cataract surgery on Petitioner's right eye. (R. at 43.6).

         On December 28, 2012 and January 16, 2013, Petitioner's vision was measured at 20/20 by Dr. Rice. (R. at 43.6). Petitioner left work February 5, 2013 and did not return. (R. at 43.6). On February 11, 2013, Petitioner met with Dr. Rice complaining of having trouble on the job. (R. at 43.6). His vision was again measured at 20/20. (R. at 43.6). Dr. Rice wrote a note recommending that Petitioner be taken off duty because of a flare up of preexisting glaucoma for the next 2-3 weeks. (R. at 43.6). On February 20, 2013, Petitioner's vision was measured at 20/20 in the right eye and 20/25 in the left. (R. at 43.6). At that time Dr. Rice wrote a second note concerning Petitioner's employment stating that Petitioner should remain off duty through April 3, 2013. (R. at 43.6).

         In April 2013, Petitioner complained of foggy vision and Dr. Rice performed a YAG laser capsulotomy on May 13, 2013. (R. at 43.6). Dr. Rice stated that this procedure usually resolves problems of glare and foggy vision. (R. at 43.6). On May 29, 2013, Dr. Rice's note indicated that Petitioner had reported glare symptoms and did not feel safe performing his job. (R. at 43.6). Dr. Rice stated that he was not qualified to determine whether Petitioner was able to continue working as a patrolman. (R. at 43.6).

         On June 27, Petitioner's vision was measured at 20/20 on the right eye and 20/30 on the left eye. (R. at 43.6). Under glare stress, his vision was measured at 20/30 on the right and 20/50 on the left. (R. at 43.6). In a February 19, 2014 letter, Dr. Rice reported that Petitioner had complained of glare and fog interfering with his vision making him feel unsafe doing his job. (R. at 43.6). In a letter dated February 20, 2014, Dr. Rice stated that the reported symptoms of glare and fog likely resulted from the damage to his left eye. (R. at 43.7). In that letter Dr. Rice concluded that Petitioner "was incapable of pursuing his current line of work as of February 5, 2013. (R. at 43.7).

         b. Employment

         Petitioner returned to the Berwick Police Department in 2002 after living outside of Maine. (R. at 43.7). Petitioner was considered marginal employee. (R. at 43.7). He had been disciplined on multiple occasions. (R. at 43.7). On January 28, 2013, shortly before he left work, the Town of Berwick Employee Performance Evaluation stated that his reporting was unsatisfactory, he failed to accept responsibility, and he was overall not meeting the expectations of the employer. (R. at 43.7).

         On February 5, 2013, Chief Towne scheduled a meeting with Petitioner to discuss a new incident under investigation. (R. at 43.7). The meeting was to discuss the investigation of Petitioner's possible use of excessive speed. (R. at 43.7). In the meeting, Petitioner told Chief Towne that he did not intend to work past April 2013 at which point he would have put in sufficient years to receive his full pension. (R. at 22.20, 24, 62). After the meeting, Petitioner left work and returned only to voluntarily clean out his desk and hand in his firearm. (R. at 43.7). On February 7, 2013, after Petitioner's departure, a notice was issued to Petitioner concerning a meeting to begin investigation for a situation involving a possibly impaired driver who Petitioner allowed to drive herself home. (R. at 43.8). The investigations were put on hold during Petitioner's absence. (R. at 43.8). Because Petitioner did not return to work, the investigations were never completed. (R. at 43.8).

         c. Procedural History

         Petitioner applied for disability retirement benefits on February 28, 2013. His application was denied by the Executive Director ("ED") on June 24, 2013. (R. at 43.3). Petitioner filed an appeal on July 23, 2013. (R. at 43.3). The hearing took place on March 26, 2014. (R. at 43.3). MPERS deposed Chief Timothy Towne on April 22, 2014. (R. at 43.3). MPERS issued a decision on July 23, 2014 accompanied by a memorandum from the Medical Board dated July 17, 2014 affirming the determination of the ED. Both parties submitted memorandum on August 22, 2014. (R. at 43.3). The Hearing Officer's Recommended Decision For ...

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