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Knoll v. Maine Public Employees Retirement System

Superior Court of Maine, Cumberland

October 14, 2016

PAUL W. KNOLL Petitioner
v.
MAINE PUBLIC EMPLOYEES RETIREMENT SYSTEM Respondent

          DECISION ON APPEAL

          A. M. Horton, Justice

         Pursuant to Rule 80C of the Maine Rules of Civil Procedure, Petitioner Paul W. Knoll appeals from a decision of the Respondent Maine Public Retirement System (MPERS) denying his application for disability retirement benefits.

         Before the court are Petitioner's and Respondent's briefs as well as Petitioner's reply brief and the administrative record. The court elects to decide this case without oral argument, See M.R. Civ. 80C(1) (oral argument to be scheduled "[V]nless the court otherwise directs." See also Lindemann v. Comm'n on Governmental Ethics & Election Practices, 2008 ME 187, ¶ 26, 961 A.2d 538 (Rule 80C permits court to direct that oral argument not be scheduled).

         Based on the entire record, the court affirms the decision of MPERS and denies the appeal.

         I. Background

         Petitioner Paul W. Knoll was employed as the assistant principal at Memorial Middle School in South Portland when he began experiencing headaches, fatigue, dizziness and confusion in 2001. (R. at 36.6). These symptoms interfered with his ability to focus, read, and learn. (R. at 36.6). He had difficulty with memory and attention span. (R. at 36.6). After Mr. Knoll began experiencing these symptoms, other school employees complained of similar symptoms. (R. at 36.6).

         The school was examined for mold and the National Institute for Occupational Safety and Health ("NIOSH") performed a health hazard evaluation. (R. at 36.6). A report dated December 17, 2003 stated that the building Mr. Knoll worked in had a history of odors and known water incursions and that there were sporadic indoor air quality problems. (R. at 36.6). However, private consultants and the Maine Department of Labor investigated the building and did not find mold amplification. (R. at 36.6).

         Mr. Knoll was evaluated by a number of medical professionals, many of whom concluded that Mr. Knoll could not return to work as assistant principal at Memorial Middle School. (R at 36.7). Mr. Knoll stopped working in October 2002. (R. at 36.7).

         On July 1, 2003, Mr. Knoll applied to Maine Public Employees Retirement System ("MPERS") for disability retirement benefits. (R. at 36.3). After reconsideration of an initial denial, Mr. Knoll's application was approved by decision of the Executive Director dated July 19, 2005, based on a finding that Mr. Knoll was incapacitated by the condition of cognitive disorder, not otherwise specified (NOS), as of October 17, 2002. (R. at 36.7). The application was denied as to any history of fungal/mold allergy and adjustment disorder with anxiety and depression. (R. at 36.7).

         After discontinuing his work at the school in 2002, Mr. Knoll worked in several different capacities. (R. at 36.7). He worked in website design, for a publisher packing books, and at Royal Bean Coffee Shop serving coffee and pastries. (R. at 14.157, 36.7). He worked in the field of dowsing, also referred to as geomancy. (R. at 14.151-52, 36.7). He has maintained a website and blog and offered workshops and personal services in the area of shamanism including shamanic journeying and shamanic energy and healing. (R. at 14.153-55, 14.177, 36.7). He has produced and self-published a CD on shamanic practices. (R. at 177-78). On the occasions Mr. Knoll was able to find paid work in dowsing or shamanism, he offered his services at rates of $50.00 to $100.00 per hour. (R. at 36.7).

         Mr. Knoll has also worked at SaviLinx, a call center in Brunswick, Maine. (R. at 36.7). He began in February 201* as the lead agent on a contract with DHL. (R. at 36.7). He worked 2-3 hours per day and his responsibilities included scheduling his call team of six or seven people, communicating with DHL on a daily basis about the team's performance, and managing the team to address any issues. (R. at 36.7). At the end of the contract with DHL, Mr. Knoll was assigned to work on a contract with General Dynamics. (R. at 36.7). Mr. Knoll made eight business trips to Mississippi for SaviLinx for the purpose of conducting interviews and training sessions for General Dynamics. (R. at 36.7). At SaviLinx he worked mainly in the human resources area, presenting orientation sessions and team building presentations. (R. at 36.7). Daniel Murray, an employee of SaviLinx working with Mr. Knoll, testified that Mr. Knoll is "very good at what he does" and "prompt and punctual". (R. at 36.7).

         In addition, Mr. Knoll has developed and presented a story, based on a life experience, that was broadcast nationally on Moth Radio, which is affiliated with Maine Public Radio and National Public Radio. (R. at 14.167-68). He submitted an online application for his story, and after it was accepted, he spent about two months working with the Moth Radio producers on refining the story. (Id.) He then told the story onstage at the State Theater in Portland, and the story was later broadcast. (Id.)

         In June 2004, Mr. Knoll sought treatment with Richard G. Doiron, Ph.D., a clinical psychologist in Portland, Maine, and continued to see Dr. Doiron twice a year for the next 10 years. (R. at 14.80). As far as the record shows, Mr. Knoll has not obtained treatment for cognitive disorder, at least in recent years, from anyone besides Dr. Doiron. (R. at S6.8). Dr. Doiron's psychotherapy notes from September 29, 2005 through October 8, 2013 were admitted into evidence. (R. at 36.8). Dr. Doiron has noted multiple times that his diagnosis of Mr. Knoll for cognitive disorder NOS was secondary to, or a consequence of, toxic encephalopathy (fungal/mold exposure). (R. at S6.8). Dr. Doiron also treated Mr. Knoll for depression and stress. (R. at 36.8).

         As required by statute, 5 M.R.S. § 17929(2)(B)(1), the MPERS has conducted periodic reviews of Mr. Knoll's case to determine whether he remains eligible for disability retirement benefits.[1] On July 5, 2006, July 29, 2008, and July 1, 2010, after reviewing Mr. Knoll's condition, MPERS approved Mr. Knoll's continuation of benefits, based on findings by MPERS that Mr. Knoll continued to be unable to engage in "substantially gainful activity" consistent with his training, education or experience and average final compensation. (R. at 56.3).

         However, after a review that began in September, 2013, the Executive Director through a designee ("the EDD") issued a decision dated October 9, 2014 finding that Mr. Knoll had not shown that he continued to be unable to engage in substantial gainful activity. Mr. Knoll appealed this determination on October 27, 2014. (R. at 36.3).

         A hearing was held before hearing officer Jonathan B. Huntington on May 20, 2015. (R. at 36.3). Mr. Knoll was represented by attorney Mark A. Cloutier and MPERS was represented by attorney Anedra C. Gregori. (R. at 36.3). Mr. Knoll testified, along with five witnesses on his behalf. (R. at 36.3).

         At the hearing, Dr. Doiron testified that Mr. Knoll's cognitive disorder condition had not changed since 2006, although he also acknowledged that Mr. Knoll's cognitive function had improved over time. (R. at 14.68-70, 14.80-81, 36.8). Also, although he testified that Mr. Knoll was capable of working the job Mr. Knoll then had at SaviLinx, on the schedule Mr. Knoll then had, but no more. (R. at 14.74, 14.79), Dr. Doiron has not placed any limitations on Mr. Knoll's work capacity. (R. at 14.79). Dr. Doiron has not conducted any recent testing or assessment of Mr. Knoll's condition, but has relied on Mr. Knoll's reports to him of difficulty with energy and attention span as well as sensitivity to substances in the environment. (R. at 14.75, 14.79, 36.8).

         Donna Maria Bordeaux also testified at the hearing. She has been married to Mr. Knoll for two years and did not know Mr. Knoll before the onset of his cognitive disorder. (R. at 36.8). Ms. Bordeaux and Mr. Knolls went through orientation at SaviLinx together. (R. at 36.9). Ms. Bordeaux testified that Mr. Knoll needed to have information repeated, that he took notes, and that he was slower than the rest of the group. (R. at 36.9). She testified that he became mentally overwhelmed and fatigued and left work early on several occasions. (R. at 36.9). He also left early when a scent "set him off' and he would have a difficult time concentrating on the task at hand. (R. at 36.9). He was given his own cubicle, and then his own office to accommodate his difficulties with concentration, and he was permitted to work from home. (R. at 36.9).

         At the May 20, 2015 hearing, she testified that when Mr. Knoll worked at SaviLinx, he was fatigued and confused with impatience, irritability, and difficulty finding words, and took frequent naps. (R. at 36.8). She further testified that he was not seeing a doctor regularly and he was not taking medication. (R. at 36.9). His treatment regimen was eating healthy, exercising every day and meditating. (R. at 36.9). She testified that his ability to function cognitively had worsened since they met. (R. at 36.9).

         Barbara Safford-Garret, human resources manager at SaviLinx, testified at the May 20, 2015 hearing. (R. at 36.9). She testified that Mr. Knoll did not do his own paperwork associated with his trips to Hattiesburg because it was not his strength and it tended to overwhelm and fluster him. (R. at 36.9). He was paid $16.50 per hour at SaviLinx. (R. at 36.9). If he were able to work full time, then a full time job at SaviLinx would be offered to him. (R at 36.9).

         Martin J. Fitzpatrick, a vocational rehabilitation and job placement counselor, performed a vocational assessment and evaluation of employability of Mr. Knoll. (R. at 36.9). Fitzpatrick assumed, for the purposes of the report, that Mr. Knoll had the limitation stated in Dr. Doiron's note on July 9, 2013, that Mr. Knoll was able to work 2-3 hours per day, two days a week. (R. at 36.9). Based upon his evaluation, Fitzpatrick concluded that Mr. Knoll was not a suitable candidate for employment earning remuneration in the range of $57, 148.53 and above. (R. at 36.9). On the other hand, although his report stated that Mr. Knoll was "not released to full-time work, " (R. at 14.301), he also acknowledged that this was based on his interpretation of Dr. Doiron's notes, (R. at 14.105), which, in turn, as noted above were based on Mr. Knoll's twice-yearly visits with Dr. Doiron.

         At the hearing, the MPERS staff presented a vocational assessment from Daniel Casavant, who, like Mr. Fitzpatrick, has a background in vocational rehabilitation. (R. at S.S49-50). Mr. Casavant reached a conclusion different from Mr. Fitzpatrick, namely that Mr. Knoll was employable and qualified for a variety of jobs, including ...


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