The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
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KATHLEEN KELLEY,
Petitioner
v. DECISION AND ORDER
MAINE PUBLIC EMPLOYEES
RETIREMENT SYSTEM,
Respondent
Pursuant to M.R. Civ. P. 80C, the petitioner seeks judicial review of respondent's
final agency decision to discontinue her disability benefits. For the following reasons,
the respondent's decision is affirmed.
Petitioner is 49 years old and was employed with the Department of Motor
Vehicles until she fell and injured her tailbone. She was awarded disability retirement
benefits in 1990 because of a resulting low back condition. (R. at 40.2.) Her benefits
continued after review in 1997. (R. at 1.11; 1.199.)
In a 1/5/06 consult, the Medical Board determined that petitioner continued to
have problems with her lower back but that there was "not enough information in the
recent medical records to establish functional limitations." (R. at 1.35.) By letter dated
6/5/06, the respondent notified the petitioner that her benefits would be discontinued.
(R. at 1.4.) In October of 2006, the Medical Board found that the records supported a
continuing back injury but that the petitioner had a "full-time sedentary work capacity."
(R. at 17.83-.84.) On 10/24/06 and again on 5/31/07, the Deputy Executive Director
affirmed the denial of benefits. (R. at 9.1; 27.1.)
On 12/28/07, the respondent affirmed the decision of the Deputy Executive
Director to discontinue the petitioner's disability retirement benefits. (R. at 40.1-40.5.)
The respondent concluded that the records supported "the continued existence of a back
injury referred to as 'progressive lumbar spine degenerative disc disease II' but found
that the functional limitations were "full-time sedentary work capacity, with eight hours
of sitting in an eight-hour workday with freedom to move about as needed." (R. at
40.3.) The respondent identified several occupations from which the petitioner could
earn her substantially gainful activity amount. (Id.)
1. Collateral Estoppel
The petitioner argues that because the respondent had previously found in April
of 1998, that she was unable to perform any substantial gainful activity because she
could only work 4-6 hours with freedom to move about, the respondent is barred from
now re-litigating the question of whether she is able to perform any substantial gainful
activity. Pursuant to section 17907;
After disability has continued for 5 years, the disability of the beneficiary
must render the beneficiary unable to engage in any substantially gainful
activity for which the beneficiary is qualified by training, education or
experience.
5 M.R.S. § 17907(2)(B) (2007). If collateral estoppel were applied, the respondent would
be unable to perform its statutory obligation to monitor, on an ongoing basis, the
condition of disability retirement beneficiaries. 5 M.R.S. § 17907(2)(B); see Button v.
Peoples Heritage Sav. Bank, 666 A.2d 120, 122 (Me. 1995). The respondent is not
collaterally estopped from litigating the question of whether the petitioner is now able
to engage in any substantially gainful activity. If a worker's incapacity ends, benefits
terminate. Carr v. Bd. of Trs. of Me. State Ret. Sys., 643 A.2d 372, 376 (Me. 1994).
2
2. Independent Medical Review
The petitioner contends that she was entitled to an independent medical review
by an objective doctor pursuant to sections 17907(2)(B)(1) and 17903(1). Contrary to the
State's argument, the petitioner addressed this argument below. (R. at 30.9; 32.4.)
The statute provides that the "executive director may require, once each year, a
recipient of a disability retirement benefit to undergo medical examinations or tests,
conducted in accordance with section 17903, to determine the disability of the
beneficiary." 5 M.R.S. § 17907(2)(B)(1) (emphasis added); Rodriques v. Me. State Ret.
~ 1997 ME 56, <[ 11, 691 A.2d 1205, 1207 (Retirement System requested the
evaluation). An independent medical review is not a matter of entitlement under the
statute.
3. Cross-Examination of Medical Board
The petitioner next argues that denying her the ability to cross-examine members
of the Medical Board was error. She relies on section 9057:
4. Prefiling Testimony. Subject to these requirements, an agency may, for the
purposes of expediting adjudicatory proceedings, require procedures for the
prefiling of all or part of the testimony of any witness in written form. Every such
witness shall be subject to oral cross-examination.
5 M.R.S. § 9057. Section 17106(3)(D) provides:
The medical board or other physician designated by the board shall, at the
request of the executive director, review the file of an applicant for
disability retirement and as requested shall respond on any or all of the
following ...
D. Inform the executive director and board in writing of its view as to the
existence of a disability entitling an applicant to benefits ....
5 M.R.S. § 17106(3)(D).
Pursuant to the statute, the Medical Board is not a third party witness providing
expert testimony at a hearing. The Medical Board is designated by the Board of
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Trustees of the Maine State Retirement System to report directly to the Executive
Director and Board of Trustees. See Thomas v. Me. State Ret. Sys., KENSC-CV-07-27
(Me. Super. Ct., Ken. Cty., Apr. 8, 2008) (Jabar, J.). The Medical Board's memorandum
was provided in this advisory capacity and is not pre-filed testimony.
4. Substantial Evidence
The petitioner argues that because she qualified for ongoing benefits in 1998 and
because there was no significant change to her medical condition, the Medical Board
and the respondent could not conclude that she no longer qualified in 2006. The
determination is not whether petitioner still had a back problem, but whether she was
unable to engage in any substantially gainful activity for which she is qualified by
training, education or experience.
An agency's factual determinations must be sustained unless clearly erroneous.
Imagineering, Inc. v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991). "A party
seeking review of an agency's findings must prove they are unsupported by any
competent evidence." Me. Bankers Ass'n v. Bureau of Banking, 684 A.2d 1304, 1306
(Me. 1996). "Inconsistent evidence will not render an agency decision unsupported."
Seider v. Bd. of Exam'rs of Psychologists, 2000 NIB 206, <IT 9, 762 A.2d 551, 555; see (R. at
1.57; 1.59; 1.94; 1.125; 17.83-.84.)
The Medical Board determined that the petitioner continued to have problems
with her low back but recent medical records did not establish functional limitations.
(R. at 1.34-.35.) There is substantial evidence in this record to support the respondent's
findings. See, ~ (R. at 1.83; 1.96; 1.100; 1.128; 6.10.) For example, a 10/31/03 medical
note provides that the petitioner "is walking three to six miles daily and lifting weights."
(R. at 1.100.) A medical record dated 9/4/02 from Dr. William S. Lambert provides:
4
Socially the patient [petitioner] filled me in on her everyday life activities
in Vienna. She is the primary care taker of a semi-invalid elderly
"cantankerous" 80+ year-old uncle from her husband's side of the family
who lives, eats and sleeps with Kathleen and her husband. She is
responsible for all of his meals and transportation. It appears that she gets
appropriate help from her husband who is a "good listener" in regard to
her emotional venting about this heavy responsibility. Combined with
this, her other duties including being a homemaker, spouse, partner,
caretaker for a "farm and garden" which have recently been editorially
displayed in newspapers and magazines, and an artist. An "escape
weekend" is described as going to Monhegan Island with other artists to
paint and enjoy the cost [sic]. Although it is difficult, she and her husband
do share escape weekends but prior to leaving she must prepare all of the
uncle's meals and layout a detailed written plan of what and what not to
do. He has a sixth grade education at best and is somewhat illiterate. On
top of all these activities some days she does not have enough physical
time or emotional energy to do the exercise program taught to her by
Dennis Flanagan.
(R. at 1.83.)
In spite of this history from the petitioner, Dr. Ann. M. Schwink determined on
5/17/04 that the petitioner could not sit or stand for any period of time and could not
lift. (R. at 1.94.) The Medical Board determined there was no support in the record for
that statement and requested additional information from Dr. Schwink. (R. at 1.38.) Dr.
Schwink responded on 7/1/04: "I have not specifically evaluated [the petitioner] in
terms of her functional abilities and would refer that evaluation to someone with more
expertise on disability issues." (R. at 1.59.) Notwithstanding, on 9/28/04, Dr. Schwink
assessed that the petitioner has "chronic low back pain with continued disability related
to lumbosacral disc disease." (R. at 1.57.) The respondent was not required to accept
that assessment.
The entry is
The Respondent's Decision is AFF~.L"-'v~L:. t
Date: August 20, 2008
Nancy Mills
Justice, Superior Court
5
Date Filed 1/29/08 Kennebec Docket No. -----'Aa..P.....,0"-'S""'-=.!0"-'6"'--- .
County
Act ion _--"P-<:e'-1t...Jiul_-iuo..un-L-fLJOlLTL-RaceJ/.v.....iJ:.:e""w'-- _
80C J. Mill4\'
Ys.
Plaintiff's Attorney Defendant's Attorney
Charles R. Priest, Esq. Christopher L. Mann, AAG
31 Grove Street 6 State House Station
PO Box 5140 Augusta, Maine 04333-0006
Augusta, Maine 04332-5140
Date of
Entry
1/29/08 Petition for Review of Final Agency Action, filed. s/Priest, Esq.
2/1/08 Letter entering appearance, filed. s/Mann , AAG
2/27/08 Certificate of Administrative Record, filed. s/Wright, Exe. Director
(record in vault)
3/11/08 Notice And Briefing Schedule mailed to attorneys of record.
4/7 /08 Brief For Appellant, Kathleen Kelley, filed 4/7/08. s/Priest, Esq.
4/23/08 Respondent's Response In Opposition To Petition For 80C Review, filed
4/22/08. s/Mann, AAG
5/7 /08 Petitioner's Reply Brief In Support Of Her Position For 80C Review,
with attachments, filed 5/5/08. s/Priest, Esq.
8/20/08 DECISION AND ORDER, Mills, J.
The Respondent's Decision is AFFIRMED.
Copies mailed to attys. of record
Copies to repositories.