Davidson v. Maine State Retirement Sys.

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. CIVIL ACTION _

DOCKET NO. AP-99-64

THM -\eu -b)s)acce

ROBERT DAVIDSON,

Petitioner

Vv. e DECISION AND ORDER

MAINE STATE RETIREMENT SYSTEM,

Respondent

This matter is before the court on petitioner’s M.R. Civ. P. 80C appeal of the

respondent’s March 11, 1999 decision affirming the decision: of the Executive

Director to cease paying him disability benefits based on a finding that he can now

engage in substantial gainful activity.

IL Facts and Procedural History

Petitioner Davidson began receiving disability retirement benefits from the

respondent, Maine State Retirement System (System), in February, 1991 on the basis

of his heart disease. On September 8, 1997, the System’s Medical Board reviewed

Davidson's case and determined that he was capable of doing sedentary work up to

40 hours a week. R. at 1.63-1.64. Davidson was notified that his benefits would be

discontinued as soon as he became employed and that his benefits would continue

while he was looking for work only if he demonstrated on a monthly basis that he

was actively seeking work. R. at 1.5. Davidson appealed this decision. R. at 1.4. He

submitted additional medical information which the Medical Board reviewed on

May 21, 1998. R. at 21.1. On June 1, 1998 the Chief Deputy affirmed the September 8,

1997 decision of the Medical Board. R. at 21.1-21.2.

A hearing on Davidson’s appeal was scheduled for October 1, 1998. Prior to

the hearing, on July 29, 1998, the System submitted to the hearing officer and

Davidson the testimony of Philip Amoroso, the System’s vocational expert. R. at

26.1-26.39. On September 28, 1998, Davidson’s sounsel filed a motion in limine to

exclude Amoroso’s testimony. R. at 29.1-29.4. The motion was denied both prior to

hearing and at the hearing when counsel renewed the motion. R. at 39.2. The

hearing was held as scheduled, R. at 30.1-30.41, and afterwards, the parties were

given the opportunity to file “position papers.” R. at 31.1. On February 1, 1999, the

hearing officer issued a recommended decision and the parties were given the

opportunity to file comments, which Davidson did. R. at 34.1; 35.1. The hearing

officer responded to those comments, R. at 37.1, and Davidson was notified that the

recommended decision would be considered by the Board of Trustees (Board) at

their next meeting on March 11, 1999. R. at 45.1. This notification stated that

Davidson would be notified prior to March 11, 1999 as to the approximate time his

case would be considered. Id. Davidson and his counsel were called on March 10,

1999 by an Appeals Clerk. R. at 38.1. The record reflects that these phone calls were

made to see if they would be attending the meeting and they indicated that they

would not.! Id. Davidson and his counsel did not attend the Board’s meeting. Id.

1 Davidson asserts that these phone calls were made to notify them that the Board would

consider the case at 11:00 a.m. In support of this claim, he cites to pages 38.1 and 40.2 of the record.

However, nothing on page 38.1 supports this assertion and page 40.2 is a page of a memorandum written

by Davidson’s counsel requesting the Board to reconsider its decision to accept the hearing officer’s

The Board issued its decision affirming the Chief Deputy Director’s decision that

Davidson was capable of engaging in substantial gainful activity. Davidson then

filed this Rule 80C appeal in which he asserts several claims of error.

IL Discussion

A. Standard of Review

When the decision of an administrative agency is appealed pursuant to M.R.

Civ. P. 80C, this Court reviews the agency’s decision directly for abuse of discretion,

errors of law, and findings not supported by the evidence. Centamore v. Dep't of

Human Servs., 664 A.2d 369, 370 (Me. 1995). In reviewing the decisions of an

administrative agency, the Court should “not attempt to second-guess the agency on

matters falling within its realm of expertise” and the Court’s review is limited to

“determining whether the agency’s conclusions are unreasonable, unjust or

unlawful in light of the record.” Imagineering v. Superintendent of Ins., 593 A.2d

1050, 1053 (Me. 1991). The focus on appeal is not whether the Court would have

reached the same conclusion as the agency, but whether the record contains

competent and substantial evidence which supports the result reached by the

agency. CWCO, Inc v. Superintendent of Ins., 1997 ME 226, 96, 703 A.2d 1258, 1261.

“A party seeking review of an agency’s findings must prove they are unsupported by

any competent evidence.” Maine Bankers Ass’n v. Bureau of Banking, 684 A.2d

1304, 1306 (Me. 1996) (emphasis added).

The fact that the record contains inconsistent evidence or that

inconsistent conclusions could be drawn from the record does not

recommended decision.

prevent the agency's findings from being sustained if there is

substantial evidence to support them . . . This court will not substitute

its judgment for [the System's] where there may be a reasonable

difference of opinion.

Clarke v. Maine Unemployment Ins. Comm’n, 491 A.2d 549, 552 (Me. 1985) (quoting

Seven Islands Land Co. v. Maine Land Use Regulation Comm’n, 450 A.2d 475, 479

(Me. 1982)). When an agency finds that the party with the burden of proof has failed

a

to meet that burden, the court can reverse that determination “only if the record

compels a contrary conclusion to the exclusion of any other inference.” Hale-Rice v.

State Retirement Sys., 1997 ME 64, J 17, 691 A.2d 1232, 1237 (quoting Douglas v.

Board of Trustees, 669 A.2d 177, 179 (Me. 1996)).

B. Did the Board err in failing to exclude Philip Amoroso’s expert

testimony?

Davidson argues that the hearing officer committed legal error by not

excluding the testimony of Amoroso because his testimony as an expert was not

sufficiently reliable under the standards announced in Daubert v. Merrill Dow

Pharmaceuticals, Inc., 509 U.S. 570 (1993) and State v. Williams, 388 A.2d 500 (Me.

1978), and because his expertise was fatally compromised by his employment by the

System. Regarding Davidson’s first claim, Maine’s Administrative Procedures Act

has the following provisions governing the admissibility of evidence in

administrative hearings:

1. Rules of privilege. Unless otherwise provided by statute, agencies

need not observe the rules of evidence observed by courts, but shall

observe the rules of privilege recognized by law.

2. Evidence. Evidence shall be admitted if it is of the kind of evidence

upon which reasonable persons are accustomed to rely in the conduct

of serious affairs. Agencies may exclude irrelevant or unduly

repetitious evidence.

5 M.RS.A. § 9057(1), (2) (1989). Although Davidson acknowledges that the Rules of

Evidence are inapplicable to administrative hearings, he argues that constitutional

substantive due process considerations must still be complied with in determining

whether evidence is admissible under section 9057(2). In assessing whether those

constitutional considerations have been complied with, Davidson argues that cases

addressing the admission of expert testimony under Rule 702 may be referred to by

this court for guidance. He relies primarily on the requirements announced by the

Supreme Court in Daubert, and argues that Amoroso’s testimony does not meet

these requirements because Amoroso is biased as the result of the fact that he has

worked many years for and is paid by the System.

Davidson’s reliance on Daubert and Williams, which interpret Rule 702 of

the Maine and Federal rules of evidence, is misplaced. Neither of those cases

address the constitutional standards for the admissibility of expert evidence - rather

they focus solely on Rule 702. In Daubert, the case Davidson primarily relies on, the

Court does not mention the Constitution. The Court’s entire focus is on what Rule

702 requires in order to admit expert testimony. See Milone v. Camp, 22 F.3d 693,

702 (7th Cir. 1994) (noting that Daubert does not “purport[] to set a constitutional

floor on the admissibility of scientific evidence”). Davidson’s reliance on these Rule

702 cases is misplaced, not only because none of the cases address constitutional

requirements for admitting expert testimony, but also because the rules of evidence

are inapplicable in administrative hearings and so case law interpreting Rule 702 is

irrelevant to the inquiry of whether the hearing officer erred in admitting

Amoroso’s testimony.

The admission of Amoroso’s testimony did not violate Davidson’s right to

due process. In an administrative hearing such as the one in the instant case, “[t]he

only restrictions imposed on the truth-seeking function are those required by due

process, of which the touchstone is fundamental fairness.” Ingerson v. State, 491

A.2d 1176, 1184 (Me. 1985). In Ingerson, the Law Court was presented with a

situation in which a police detective testified at a parole revocation hearing as to his

opinion of an alleged victim’s truthfulness regarding her account of the rape

Ingerson allegedly committed. Id. The Court found that the admission of the

detective’s opinion did not violate due process. Id. at 1184-85. In reaching this

conclusion, the Court noted that the detective was present at the parole hearing so

that he could be questioned on both direct and cross-examination regarding the basis

for his opinion. Id. at 1184. Additionally, the Court found that there was no risk of

the detective’s testimony “overaw[ing]” the Parole Board as the Board “has a long

experience of hearing the testimony of police officers, and was unlikely to accord

[the detective’s] opinion any undue weight based on his opinion.” Id. These same

factors support the admission of Amoroso’s testimony. Not only was Amoroso

present at the hearing and available for questioning on both direct and cross-

examination, but hearing officers, such as the one engaged in this case, are

accustomed to hearing the testimony of vocational experts and thus, are unlikely to

accord their testimony any undue weight. This court finds that Davidson’s right to

due process was not violated as a result of the admission of Amoroso’s testimony.

Moreover, Amoroso’s testimony meets the standard in 5 M.R.S.A. § 9057(2)

(1989) which governs the admissibility of evidence in administrative hearings. That

section provides that “[e]vidence shall be admitted if it is of the kind of evidence

upon which reasonable persons are accustomed to rely in the conduct of serious

affairs. Agencies may exclude irrelevant or unduly repetitious evidence.” Id. This

rule is also incorporated into Me.S.Ret. Sys. R. ch. 702, § 11(A). In noting this specific

provision of the rules, the Law Court has found that “[t]he rules favor the liberal

admission of all relevant evidence.” Hale-Rice, 1997 ME 64, J 13, 691 A.2d at 1236.

The rules further provide that “[t]he fact that evidence is admitted shall not limit

the authority of the hearing officer to determine the weight to be given the

evidence.” Me.S.Ret. Sys. R. ch. 702, § 11(E).

While Amoroso’s testimony could be considered suspect because of his

employment by the System, this factor goes towards the weight to be given the

testimony, not whether it should be admissible. Davidson had the opportunity to

cross-examine Amoroso and to bring in a vocational expert that he hired to testify in

his favor. The Board was free to disregard Amoroso’s testimony or to give it limited

weight considering the testimony Davidson elicited from him during his cross-

examination. Me.S.Ret. Sys. R. ch. 702, § 11(E). Considering Amoroso’s experience

and credentials, R. at 26.2-26.3, his testimony easily qualifies as “the kind of evidence

upon which reasonable persons are accustomed to rely in the conduct of serious

affairs.” 5 M.R.S.A. § 9057(2). It was not error for the Board to admit and rely on

Amoroso’s testimony in rendering its decision.”

Cc. Did Amoroso err in finding that Davidson can perform full-time

employment from the beginning of his employment?

Davidson argues that if Amoroso’s testimony was properly admitted, it

should have been given no weight because he improperly assumed that he could

perform full-time work from the beginning of his employment, even though his

treating physician indicated that if he did return to work, he should do so initially

on a part-time basis. This argument mischaracterizes the evidence and Amoroso’s

testimony. Amoroso gave the following testimony regarding Davidson’s ability to

engage in full-time employment:

Q: Okay. Did you assume in this process that Mr. Davidson would

be able physically to perform full-time work from the beginning

of his employment?

A: I gathered that from the -- from the medical records, yes.

R. at 30.34. It is clear from this testimony that Amoroso’s “assumption” was based

his review on the medical records. Thus, the issue is whether the medical records

support Amoroso’s conclusion that Davidson would be able to work full-time from

the beginning of his employment. Davidson relies on a report from his treating

physician, Dr. Childs, dated November 20, 1995, as evidence that he should begin

with part-time employment. Dr. Childs stated: “I see no reason why [Davidson]

would not be able to work a 40 hour week, however, it might be appropriate to start

2 In Law Court found in Ingerson that “[t]he opinion of a police detective falls into that category

of evidence” which is admissible under section 9057(2). 491 A.2d at 1185. If a detective’s opinion is

admissible under section 9057(2), even though the detective is paid by the State, there is no basis for

excluding the testimony of Amoroso because he is paid by the System.

him part-time and increase from there.” R. at 1.88. Thus, Dr. Childs does not say

that Davidson should start part-time, rather, she only stated that it might be

appropriate for him to do so. Ina recent questionnaire, Dr. Childs was asked to list

any physical or mental limitations that his heart disease causes which impair his

ability to work. Dr. Childs did not mention any limitation on Davidson's ability to

perform full-time work. See R. at 1.13. The Meélical Board concluded based on its

review of the medical evidence that Davidson could work in a sedentary position

for up to 40 hours a week. R. at 1.64. The rehabilitation counselor Davidson saw at

Comprehensive Rehabilitation Associates indicated that Davidson “appears capable

of working a forty hour week with restrictions.” R. at 1.74; see also R. at 1.82 (“Dr.

Childs indicates that Mr. Davidson is not restricted from full-time employment . .

”) Davidson has not cited any evidence, other than Dr. Childs’ November 20, 1995

report, which supports his claim that he must begin employment on a part-time

basis. Moreover, to the extent that he could cite such evidence, it would do nothing

but provide inconsistent evidence on this issue. Inconsistent evidence does not

render an agency’s decision incorrect and this court cannot substitute its opinion for

that of the agency where there may be a reasonable difference of opinion.

Amoroso’s “assumption” that Davidson could engage in full-time work from the

3 The rehabilitation counselor also states that “work hardening with part-time employment in.

an office environment seems appropriate and reasonable.” R. at 1.82. However, inconsistent evidence in

the record does not render an agency’s decision incorrect.

beginning of his employment is supported by the medical evidence in the record

and therefore, does not provide a basis for discounting his testimony.’

D. Did the Board err in finding that the six recommended jobs are

consistent with Davidson’s training, education or experience?

The Board found that both Davidson and Amoroso agreed that Davidson

does not have direct experience or training in any of the six recommended jobs.

Davidson argues that because he does not have any direct experience or training,

those jobs are not consistent with his training, education or experience. He notes

that Amoroso concluded that he “could be trained to do any of those jobs.” Pet’s

Brief at 13 (quoting R. at 39.4). Davidson argues that if he needs to be trained to

perform a particular job, then that job cannot be consistent with his training,

education or experience. He notes that the Retirement System Rules provide that a

job is consistent with a claimant’s training, education or experience when that job

bears “a logical relationship” to his/her previous training, education or experience,

and that such a relationship requires “possession of appropriate training in relevant

skills and knowledge.” He argues that since Amoroso agrees that he would have to

be trained to do the recommended jobs, he does not possess appropriate training in

4 The Board considered this issue regarding Davidson’s ability to perform full-time work at the

beginning of his employment. The Board first noted:

Appellant testified that he can only do part-time work. Appellant’s primary care

physician, Dr. Childs, stated that she saw no reason why he could not work a 40 hour

week, but that it might be appropriate to start him part-time and increase from there.

The Medical Board indicated 40 hours was appropriate and light amounts of stress

should be tolerable in a sedentary 40 hour a week occupation. . . . The evidence

demonstrates that Mr. Davidson should be able to handle normal levels of stress in an

office job and that he is able to work full time, although a work hardening period

might be helpful to him. Such a work hardening period with part-time employment is

not inconsistent with the medical evidence that Mr. Davidson is able to work a 40 hour

work week.

R. at 39.4, 39.5.

10

relevant skills and knowledge such that a logical relationship to his previous

training, education or experience can be established.

In order to receive disability benefits from the System, a claimant’s disability

“must render the person unable to engage in any substantial gainful activity that is

consistent with the person’s training, education or experience.” 5 M.R.S.A. §

17929(2)(B) (Supp. 1999). The Retirement System Rules provide guidance in

determining whether an activity is consistent with the claimant’s training,

education or experience. They state:

(1) “Consistent with” means that the activity or activities must bear

a logical relationship to the person’s previous training,

education or experience.

(2) Such a relationship is demonstrated by the possession of

appropriate training in relevant skills and knowledge, including

those that are transferable; or appropriate type and level of

education; or appropriate experience.

Me.S.Ret. Sys. R. ch. 507, § 1(C). Thus, according to the rules, it is not necessary that

a claimant have “appropriate training in relevant skills and knowledge” if he or she

has “transferable” skills and knowledge. The Board found that Davidson has

“transferable skills that are needed to perform the specified jobs,” noting Amoroso’s

testimony that the “specified jobs are consistent with Appellant's training, education

or experience.” R. at 39.4. Considering Davidson’s work history, as documented in

the record, this conclusion is supported by the record. Davidson served twenty years

in the military. R. at 30.5. For the first eight years, he worked in the Army as a radio

operator. He described this position as a “Morse code operator, telegrapher and as

things progressed it went into radio teletype and then into radio.” R. at 30.7.

Hi

Following a year where he was not in the service, he reenlisted in the Air Force as a

radio frequency management technician. R. at 30.8. This position required one year

of training, six months in school and six months of on-the-job training. R. at 30.8,

30.20. Davidson described. his duties in this position as follows:

The lower echelon bases they needed a license to turn their radios on

and they had to get their license from the Department of the Army, Air

Force, whatever and I was a go-between like a coordinator between all

the small bases, I had 100 bases under me and I reviewed their

paperwork and forwarded it to whichever branch of the service if it

complied with our regulations.

R. at 30.8. See R. at 30.20-30.21 for more information regarding his duties in this

position. Following his retirement from the military, he ran his own furniture

repair and refinishing business for five years. R. at 30.9. After that, he worked as a

corrections officer which involved direct care of the inmates, transporting them to

work sites, scheduling appointments for the inmates, and some paperwork. R. at

1.76; 30.9-30.11. He also worked part-time as a deputy sheriff where he did patrol

work, paperwork for the sheriff's department, and served civil summons. R. at 30.9-

30.10. He has completed two years of college education and has recently taken three

computer classes. R. at 1.76; 30.5-30.6; 30.19. Considering this work history and

comparing it to the job descriptions of the recommended jobs, R. at 26.7-26.18, the

record supports a finding that Davidson has transferable skills, including the ability

to perform basic computer operations, process paperwork, review and process

applications, work with people, keep records, follow directions, and work without

5 Davidson argues that there is no evidence in the record to support a finding that he has good

interpersonal and communication skills. Pet’s Brief at 16-18. In fact, Davidson’s rehabilitation

counselor noted that he has “good social skills.” R. at 1.76.

12

supervision. Consequently, the Board’s finding that Davidson has transferable skills

making the recommended jobs consistent with his training, education or experience

is supported by the record and petitioner’s argument to the contrary is without

merit.

E. Did the Board err in finding that the six recommended jobs comply

with Davidson’s medical restriction to avoid high degrees of stress?

Davidson raises two objections to the Board’s conclusion that the six

recommended jobs comply with his medical restriction to avoid high degrees of

stress. First, he challenges the Board’s finding that the jobs identified do not indicate

“above normal” stress levels such that his medical restriction to avoid high degrees

of stress does not come into play. He notes that the Medical Board found that due to

his heart condition, he should not be subjected to high degrees of stress and that the

level of stress imposed by any job must be viewed from his perspective. He then

argues that the Board improperly concluded that the recommended jobs would not

cause him excessive stress in the absence of actual testimony from him on this

subject and in the absence of any objective evidence that the particular jobs do not,

in fact, create excessive stress in him.

Under the Retirement System Rules, “[t]he recipient of disability benefits has

the ultimate burden of demonstrating that s/he is unable to engage in substantially

gainful activity.” Me.S.Ret. Sys. R. ch. 507, § 2(A); see also Hale-Rice, 1997 ME 64,

17, 691 A.2d at 1237. Thus, it was Davidson’s burden to show that the reeoommended

jobs were not in compliance with his medical restrictions because they would have

caused him excessive stress. The court has been unable to locate any evidence in the

13

record which would support a finding that the recommended jobs would cause

Davidson undue stress. Not only did Davidson fail to offer any testimony regarding

the stress he thought those particular jobs might cause him, he also failed to provide

any evidence regarding what sort of things might cause him stress generally. See R.

at 30.3-30.22. Thus, the record is devoid of any evidence regarding what causes

Davidson to experience stress. On the other hand, Davidson did testify that he

thought he could perform office-type work® and his treating physician

7 The Board’s conclusion

recommended this type of work as being suitable for him.

that the recommended jobs would not create above normal stress levels was not

error because Davidson failed to offer any evidence showing that those jobs would

cause him elevated levels of stress.

Davidson’s second challenge to the Board’s conclusion that the recommended

jobs comply with his medical restrictions focuses on the fact that each of the jobs,

6 Specifically, Davidson testified about his participation, at the request of the System, in a

vocational rehabilitation program through Comprehensive Rehabilitation Associates. Regarding this

rehabilitation program, Davidson testified as follows:

Q: Was there a particular type of employment that you and he had targeted that you

were looking to gain?

A: No, just about anything that would fall into my category that J could do, you know.

Q: And what did you think that was that you could do?

A: General office-type work.

R. at 30.15. Thus, by Davidson’s own testimony, he thinks he could perform office-type work and from

this, it could be inferred that he does not think this type of work would be particularly stressful for

him to perform.

7 Davidson argues that Dr. Childs’ statements about his ability to perform office-type work

are in conflict and that the Board failed to resolve this conflict. See Pet's Brief at 14-15. Review of Dr.

Childs’ statements reveal that she believes that office-type work is appropriate for him considering

his physical condition. See R. at 1.33 (“I feel that a normal rigorous office setting would be fine for him

and that he would not be restricted from that type of work.”); 1.34 (“I feel that routine office type

work, although may be stressful, could be suitable for him.”).

14

except payroll and timekeeping clerk, involve one or more factors which he asserts

the Medical Board found should be avoided because of the stress they can generate.

Regarding the payroll and timekeeping position, he argues that elevated stress

levels can be expected because of the accuracy and speed requirements set forth in

that job’s description. Thus, Davidson concludes that the recommended jobs are not

consistent with his work restriction of avoiding stress.

The Medical Board found that “[clertainly, confrontations with clients,

repeated telephone calls and messages which put undo anxiety and stress on an

individual would be contraindicated.”® R. at 1.64. Therefore, according to the

Medical Board, only those factors “which put undo anxiety and stress on an

individual” should be avoided. As already noted, it was Davidson’s burden to offer —

evidence showing that the recommended jobs would cause him stress. Even the

Medical Board recognized that whether a particular job would cause Davidson too

much stress would be based on his perception of the stress involved.” R. at 1.64.

Yet, Davidson argues, in the abstract, that the recommended jobs are not in

conformity with his medical restriction to avoid stress because the jobs have

8 The System’s “specialist,” which recommended discontinuation of Davidson’s benefits on May

6, 1997, interprets the Medical Board’s report as stating that “while stress is determined largely on an

individual basis certain circumstances, such as confrontations with clients, continuous phone calls or

constant interruptions should be avoided.” R. at 1.62.

9 The Medical Board made the following conclusion:

A question has been raised as to how stress would be a limiting factor in this man’s

working at a sedentary occupation. The answer to that would involve the perception of

stress as seen by the individual himself. Certainly, most people with this kind of

condition as described above can tolerate light amounts of stress according to their

perception. But once again stress is in the eye of the beholder.

R. at 1.64 (emphasis added).

15

elements which the Medical Board acknowledged can generate stress. He has put

forth no evidence that those factors, in fact, would cause him stress. Without this

evidence, he has not satisfied his burden of showing that he is unable to engage in

substantial gainful employment. If he wanted to show that the recommended jobs

were not consistent with his work restriction to avoid stress, then he needed to

provide some evidence that those jobs would cause him stress. Having failed to do

so, his appeal on this issue is without merit.

F, Did the Board improperly consider Davidson’s other unrelated medical

conditions in reaching their decision?

Davidson argues that the Board improperly considered his other medical

conditions, which are unrelated to his heart condition, !°

in determining whether

his heart condition prevented him from engaging in substantial gainful activity.

The Board mentioned Davidson’s other medical conditions three times in its

decision. First, the Board noted that Davidson decided not to pursue a disability

claim based on “peripheral neuropathy.” R. at 39.3. Next, the Board found that

there was nothing in the record that establishes a medical connection between

Davidson’s heart condition and the other medical conditions he suffers from. Id.

Last, the Board concluded that Davidson’s other medical conditions are not related

to his heart condition, the condition for which he was awarded benefits. This

conclusion was reached immediately after the Board noted the following regulation:

A person shall be determined to be unable to engage in any substantial

gainful activity if the person lacks the physical or mental capacity, due

10 Davidson has conceded that this other medical conditions are unrelated to his heart

condition. R. at 40.5-40.6.

16

to the incapacity for which the person was awarded disability

retirement benefits, to perform or participate in any activity or

activities, tasks or efforts that are or could be performed in such a

manner as to generate remuneration in an amount which is consistent

with average final compensation.

Me.S.Retirement Systems Rules ch. 507, § 1(A) (Sept. 28, 1993) (emphasis added).!!

Considering the Board’s statements in conjunction with this rule, it is apparent that

the Board was merely finding that the evidenee pertaining to Davidson’s other

medical conditions was irrelevant to its determination on whether Davidson was

entitled to benefits because those conditions were unrelated to the condition for

which he initially received benefits. Thus, the Board did not err in mentioning

Davidson’s other medical conditions in its decision.

G. Was Davidson provided adequate notice of the Board’s meeting on

March 11, 1999?

Davidson argues that he was not provided with sufficient notice of the Board

of Trustees’ meeting held on March 11, 1999. Pursuant to the Retirement System

Rules, a claimant is entitled to make a statement of position not longer than 15

minutes before the Board but he may not present evidence. Me.S.Ret.Sys. R. ch. 12

702, § 15(C). Davidson argues that in order for a party to have a meaningful

opportunity to make such a statement, due process requires that notice of the

Board’s meeting must be given sufficiently in advance to afford an adequate

opportunity to prepare the statement. Additionally, he argues that to the extent that

11 See also Rodriques v. Maine State Retirement Sys., 1997 ME 56, 4 10, 691 A.2d 1205, 1207

(“{I]f a connection is established, a recipient of disability retirement benefits can continue to receive

benefits on the basis of a limitation that arises from a condition related to the condition for which he

was found to be incapacitated.”).

17

2

“

the Board’s meeting can be considered a hearing, he was entitled to written notice by

regular mail pursuant to 5 M.R.S.A. §§ 9052(2)(A), (4) (1989). He argues that

although he was notified on February 25, 1999 that the meeting would be held on

March 11, 1999, he did not receive notice as to what time on the 25th his case would

be heard until the day before the meeting. Because of this short notice, he claims

that neither he nor his counsel were able to prepare for or attend the meeting of the

Board. As a result, the decision was issued without the benefit of the statement

allowed for in section 15(C) of the System’s rules.

Pursuant to 5 M.R.S.A. § 17451 (1989), a claimant is entitled to appeal an

adverse decision of the Executive Director to the Board of Trustees. This appeal is

an adjudicatory proceeding subject to the requirements of the APA. Id. § 17451(1)(C).

Pursuant to its rulemaking authority, 5 M.R.S.A. § 17103(4) (1989), the Board has

established an appellate procedure in which a hearing officer may be appointed to

hear the claimant’s appeal. Me.S.Ret. Sys. R. ch. 702, § 8(A). This procedure was

utilized in the instant case. The hearing officer held four prehearing conferences

with the parties before conducting the hearing on Davidson’s appeal on October 1,

1998.12 At this hearing, Davidson, through counsel, presented evidence and

testimony, and cross-examined the System’s witness. Thereafter, the parties were

given the opportunity to submit “position papers” after receipt of the hearing

transcript, which Davidson did. The hearing officer then issued his recommended

decision and pursuant to Me.S.Ret. Sys. R. ch. 702, § 14(B)(1), the parties were

12 Davidson does not challenge the adequacy of the notice he received for the October 1, 1998

hearing before the hearing officer.

18

allowed to submit written comments on the decision. Davidson also took

advantage of this opportunity to present argument. When the hearing officer’s

response to Davidson’s comments was mailed to Davidson’s counsel, he was

notified that the Board would consider the recommended decision at its next

meeting on March 11, 1999. At that meeting, the Board adopted the hearing officer’s

recommended decision. This entire procedure is part of a single appellate process

and taken in its totality, it is apparent that the requirements of the APA, including

the notice provisions, were complied with by the System.

Davidson also asserts that the notice he received regarding the March 11th

hearing was constitutionally deficient. “Due process is a flexible concept calling for

‘such procedural protections as the particular situation demands.” In re Kristy Y.,

2000 ME 98, {| 6, -- A.2d -- (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)).

Due process requires fundamental fairness, which involves consideration of three

factors in assessing whether an individual's right to due process has been violated:

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government's

interest, including the function involved and administrative burdens

that the additional or substitute procedural requirement would entail.

Balian v. Board of Licensure in Medicine, 1999 ME 8, ¥ 10, 722 A.2d 364, 367 (quoting

Mathews v. Eldridge, 424 U.S. at 335 (1976)).

These factors weigh in favor of the System. While there is an important

private interest at stake, the continuation of disability benefits, the risk of erroneous

deprivation under the System’s current procedures is minimal. Davidson was

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ae

given multiple opportunities to be heard throughout the appellate process. By the

time his appeal had arrived before the Board, he had already participated in four

prehearing conferences, as well as a full hearing in which he was given the

opportunity to present evidence and witnesses, to testify, and to cross-examine the

System’s witnesses. After that hearing, he was able to submit written arguments

and still further, he was given the opportunity 40 submitted written comments on

the hearing officer’s recommended decision. Finally, he was told that the Board

would consider his case at its March 11, 1999 meeting. Providing a claimant with

the specific time at which the Board will consider his appeal, under these

circumstances, would do nothing to reduce the already minimal risk of erroneous

deprivation. The System’s appellate procedures are more than sufficient to protect

the claimant’s interest which is at stake.

This court also finds that Davidson did not suffer any prejudice or surprise as

the result of being advised of the time at which he case would be considered on the

day before the meeting. Davidson and his counsel were both aware that the case

would be considered by the Board on March 11th. This, in and of itself, is enough

notice to allow both of them to prepare for and attend the meeting. That they did

not know the exact hour when the case would be considered, does not change the

fact that they knew that their case would be considered on the 11th and that they

should have planned accordingly. It strains credibility to suggest that because they

did not know the time at which their case would be considered, they could not

prepare for the meeting. Additionally, this court finds that although Davidson was

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not able to make his statement before the Board, he was not deprived of his right to

be heard considering the extensive appellate procedures which gave him the

opportunity to present evidence and his arguments.

i. Conclusion

Therefore, for all the reasons above, the entry shall be:

Petitioner’s appeal is DENIED.

Dated: June 2, 2000 GG

Donald H. Marden

Justice, Superior Court

21

Date Filed __8/20/99 Kennebec _

Docket No. __ AP99-64

County

S Action .__ Petition for review OMALOL. CARARECHT di MARDEN

» - LAW LOSBARY .

JUN 8 9008 .

Robert N Davidson

ys, Maine State Retirement System

Plaintiff's Attorney

Christopher J Cotnoir Esq William H. Laubenstein, III, Esq. AAG

PO Box 376 6 State House Station

Waterville Me 04903

Augusta, Maine 04333-0006

Defendant’s Attorney

Date of

Entry

8/20/99 Petition for review of final agency action (M.R. Civ.P. 80C) filed.

s/Cotnoir,Esq.

8/25/99 Letter entering appearance, filed. s/Laubenstein, IIT, Esq.

> 9/22/99 Certified record filed. s/Laubenstein III AAG

(FILED IN VAULT DRAWER)

9/22/99 Notice of briefing schedule mailed to attys of record.

11/1/99 Brief of Petitioner Robert Davidson, filed. s/Cotnoir, Esq.

11/10/99 Documents that were omitted from the original certification of record

filed. s/Laubenstein III AAG

Pages 8.2 and 9.3 of the administrative record that were omitted filed.

s/Laubenstein,III AAG

12/3/99 Brief of respondent Maine State Retirement System filed. s/Laubenstein,

IIT AAG

12/16/99 Motion for Enlargement of Time, filed. s/Cotnoir, Esq.

Proposed Order, filed.

12/20/99 ORDER OF ENLARGEMENT, Marden, J.

Appellant shall file his reply brief on or before December 29, 1999.

Copies mailed to attys of record.

12/29/99 Reply Brief of Petitioner Robert Davidson, filed. s/Cotnoir, Esq.

3/9/00 Oral argument had with Justice Marden presiding, Attys. Cotnoir and

Laubenstein present.

Court takes under advisement.

> 6/5/00 DECISION AND ORDER, Marden, J. (dated 6/2/00)

Petitioner's appeal is DENIED.

Copies mailed to attys of record.

Copies mailed to Deborah Firestone, Garbrecht Law Library and Donald Goss.

Notice of removal of record mailed.