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Jalbert v. Maine Public Employees Retirement System

Supreme Court of Maine

April 11, 2017


          Argued: June 10, 2016

         Reporter of Decisions

          Gerard P. Conley, Jr., Esq. (orally), Cloutier, Conley & Duffett, P.A., Portland, for appellant Elizabeth T. Jalbert

          Janet T. Mills, Attorney General, Christopher L. Mann, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Maine Public Employees Retirement System


          Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, HJELM, and HUMPHREY, JJ.

          HJELM, J.

         [¶1] Elizabeth T. Jalbert appeals from a judgment entered in the Superior Court (Kennebec County, Marden, J.) affirming the decision of the Maine Public Employees Retirement System (MPERS) Board of Trustees (the Board) to adopt the hearing officers recommended decision denying Jalberts application for disability retirement benefits. Because the record does not compel the conclusion that Jalbert has a mental or physical incapacity that "is expected to be permanent" and makes it "impossible to perform the duties of [her] employment position, " 5 M.R.S. § 17921(1)(A)-(B) (2016), we affirm.

         I. BACKGROUND

         [¶2] The following facts, which are supported by competent evidence in the record, are drawn from the recommended final decision issued by the hearing officer and adopted by the Board. See Anderson v. Me. Pub. Emps. Ret. Sys., 2009 ME 134, ¶ 5, 985 A.2d 501.

         [¶3] Jalbert was employed as a teacher at Regional School Unit No. 1 for twenty-four years, beginning in 1989. In 2004, Jalbert applied to MPERS for disability retirement benefits, claiming that she suffered from bipolar disorder. Although Jalbert had received a positive employment evaluation that year, she alleged that her mental health condition adversely affected her ability to teach. In 2005, Jalbert withdrew her application for disability retirement benefits and continued teaching effectively despite her ongoing mental health conditions.

         [¶4] In January 2012, Jalbert slipped on ice and fell twice, nine days apart, hitting her head each time. Jalbert was examined at an emergency room after each fall, and the physicians noted only minor head injuries. After the falls, however, Jalbert reported to several treatment providers that she was struggling with speech and concentration, and that her depression and anxiety had worsened. She was absent from work for most of the remaining school year. In February 2012, Jalbert was examined by a neurologist who diagnosed her with post-concussion syndrome exacerbated by her pre-existing anxiety and depression, and he recommended that she see a speech therapist.

         [¶5] Jalbert returned to work in September 2012 with modified duties. Around that same time, Jalbert underwent formal neuropsychological testing, which revealed strengths in intellectual ability, problem solving, short term memory, and language skills, but weaknesses in some aspects of attention and concentration. In November 2012, Jalberts primary care physician provided her with a note excusing her from work based on her claim that she did not feel competent at her job. While on leave, Jalbert continued to see her primary care physician, neurologist, neuropsychologist, speech therapist, and mental health providers; and she received treatment for tinnitus, dizziness, and vision problems. Her official last date in service was April 10, 2013.

         [¶6] In February 2013, Jalbert filed an application for disability retirement benefits with MPERS based on her diagnosed post-concussion syndrome, anxiety, and depression.[1] See 5 M.R.S. § 17925(1) (2013).[2] The Executive Directors designee obtained extensive medical records from Jalberts treatment providers. Those materials were then reviewed by a medical board comprised of eight physicians, see id.; 5 M.R.S. § 17106(3)(D) (2016), which issued two reports in June 2013 analyzing the effect of Jalberts alleged health conditions on her ability to teach: the first report analyzed post-concussion syndrome, and the second report analyzed anxiety and depression. The Executive Directors designee ultimately denied Jalberts application, see 5 M.R.S. §§ 17921(1), 17924(1) (2016), and Jalbert appealed to the Board, see 5 M.R.S. § 17451 (2016).

         [¶7] A hearing was held before a hearing officer in February 2014 and the evidence was finally closed in April 2014. Because Jalbert chose to follow an "unrestricted appeal process, " see 12 C.M.R. 94 411 702-2 § 6(2) (2014), the evidence presented to the hearing officer went beyond the voluminous medical records and June 2013 medical board reports already considered by the Executive Directors designee, and included testimony from Jalbert, her daughter, and one of her colleagues; transcribed testimony of Jalberts neurologist; and additional medical records and responses to requests for information from six of Jalberts treatment providers.

         [¶8] After the close of all the evidence, the hearing officer returned Jalberts appeal to the Executive Director for a reconsidered decision. See 12 C.M.R. 94 411 702-2 § 6(2)(B). The Executive Director consulted with the medical board, see id., which issued two additional reports in May 2014 stating its opinion that the cumulative evidence failed to establish the existence of significant functional limitations related to post-concussion syndrome, anxiety, or depression. A Deputy Executive Director then issued a reconsidered decision affirming the earlier decision of the Executive Directors designee to deny Jalberts application for benefits and returned the matter to the hearing officer. See 12 C.M.R. 94 411 702-5 § 15(1) (2014).

         [¶9] In the summer and fall of 2014, the parties filed post-hearing briefs with the hearing officer and commented on the hearing officers draft decision. After responding to the parties comments, in October 2014, the hearing officer issued a recommended final decision, see 5 M.R.S. § 17106-A (2016), which was supported by extensive findings of fact and concluded that Jalbert had not satisfied her burden of proving that her conditions made it "impossible to perform the duties of [her] employment position, " id. § 17921(1)(B). The hearing officers decision was based on the following key findings: medical records and other evidence contemporaneous with Jalberts head injuries indicated that when she fell, the impacts were mild; objective testing showed that Jalberts mental functions were only minimally impaired; Jalberts decline in functional capacity was inconsistent with her diagnosis of post-concussion syndrome and was not sufficiently explained by her doctors; and Jalberts current alleged impairments closely resembled those alleged in her 2004 application for benefits.

         [¶10] The Board concluded that the hearing officers decision was "supported by the record as a whole" and adopted it in full. See id. § 17106-A(1). Jalbert filed a complaint for review of the Boards decision in the Superior Court, see 5 M.R.S. §§ 11001-11007 (2016); M.R. Civ. P. 80C, which affirmed the Boards decision. This appeal followed.


         [¶11] Jalbert argues that the Board erred by concluding that she did not qualify for disability retirement benefits. To qualify for the benefits, Jalbert was required to prove that she has a mental or physical incapacity that (1) "is expected to be permanent, " and (2) makes it "impossible to perform the duties of [her] employment position."[3] 5 M.R.S. §§ 17921(1), 17924(1). In particular, she contends that the evidence compelled the Board to grant her application for benefits and that the Board placed improper weight on the medical boards reports.

         [¶12] When the Superior Court acts in its appellate capacity pursuant to M.R. Civ. P. 80C, we review the decision of the fact-finding agency directly. See Rossignol v. Me. Pub. Emps. Ret. Sys., 2016 ME 115, ¶ 6, 144 A.3d 1175. "As the fact-finder, the Board has the authority to determine the weight to be given to the evidence, and we will not substitute our judgment for the Boards." Id. (citing 5 M.R.S. § 11007(3)). Additionally, because Jalbert had the burden of proof before the agency, "we will vacate the Boards determination that [s]he failed to meet that burden only if the record compels a contrary conclusion to the exclusion of any other inference." Id. (quotation marks omitted).

         [¶13] Contrary to Jalberts contention, the record does not compel the conclusion that she met her burden of proving that she qualifies for benefits pursuant to sections 17921(1) and 17924(1). As the Board concluded in its final decision, the hearing officers findings are supported by competent evidence in the record, including reports from Jalberts emergency room visits in January 2012 describing her head injuries as "mild" and "minor, " and stating that the second fall did not result in any loss of consciousness; a neuropsychologists report from September 2012 stating that Jalbert was "performing quite well on a wide range of cognitive measures, " although she had some difficulty with concentration; reports from Jalberts neurologist stating that she was "doing better over time, " that she had done "quite well overall" in a cognitive assessment but lost points for fluency, and that he expected that Jalbert would fully recover and return to work; and a "speech therapy discharge summary" issued in February 2013 stating that Jalbert had "met her goals, " that her communication skills were "within functional limits with no evidence of word finding deficits or dysfluency, " ...

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