Campbell v. Maine State Retirement Sys.

1

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. AP-E.7~31

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CALISTA CAMPBELL

Petitioner

v. DECISION AND ORDER

MAINE. STATE RETIREMENT

SYSTEM,

Respondent

This case is in front of the court on petitioner's M.R. Civ P. 80C petition for

judicial review of the final agency action of the Maine State Retirement System (the

Board)..

The petition for judicial review is a result of petitioner being denied her claim for

disability retirement benefits by the Board. The Board's determination was based on its

opinion that her back injury did not make it permanently impossible for her to perform

her duties of employment, as of her last day of service. 1 The facts are as recited in the

final appeal to the Board. (R. at 19.1-19.3.)

Petitioner worked as a police officer for the City of Biddeford, a requirement of

that position is that officers wear a duty belt weighing approximately 20 pounds.

Petitioner was injured on March 9, 2004 after falling down some stairs. In April 2004

1 Under 5 M.R.S.A. § 17921(1) "Disabled" means that the member is mentally or physically incapacitated

under the following conditions:

A. The incapacity is expected to be permanent;

B. That itis impossible to perform the duties of the member's employment position ...

5 M.R.S.A. § 17921(2) "Employment Position" means:

A. The position in which the member is employed at the time the member becomes incapacitated; or

B. A position of comparable stature and equal or greater compensation and benefits which is made

available to the member by the member's employer.

2

she underwent laparoscopic surgery. Petitioner returned to work doing light duty, but

left when that work became unavailable on June 30, 2005.

After her injury, petitioner began treatment for her lower back pain with Dr. Paul

Upham. In May of 2004, Dr. Upham referred petitioner for osteopathic manipulative

therapy in May. He reported that she benefited from the treatment until she had a

"flare of pain when she tried to wear her duty belt as I was attempting to progress her

back to her regular job."

Dr. Upham then referred petitioner to Dr. Glass and subsequently Dr. Pier for

injection treatment. Dr. Glass treated petitioner from August 2004-November 2004.

Toward the end of that period, Dr. Glass described Campbell's problems as chronic

poor posture and deconditioning and that she was only a marginal participant in

rehabilitation and was recalcitrant to reassurance and committed to disability. Dr.

Glass explained that attempts to return petitioner to full duty were "confounded by her

unwillingness to pursue full duty work." Dr. Glass further stated at the time of her

discharge, "all findings regarding her work-related injury had completely resolved."

Petitioner believed she.still exhibited symptoms and in January 2005 she saw Dr.

Pier for lidocaine injection of sacroiliac and lower lumbar joints, followed by a

diagnostic lower lumbar medial branch block in early February 2005.

Dr. Upham noted that many treatments were tried with limited success and

suggested that petitioner should see a counselor to determine if there was a psychiatric

component to the pain. Petitioner was resistant but did have a visit to a counselor. In

August 2005, Dr. Upham told petitioner that she had had all possible medical

treatments and strongly encouraged that she seek psychiatric assistance. Petitioner did

not seek such care because, as she stated, workers compensation insurance did not

cover it. Upham continued a restriction of only three hours a day wearing the duty belt,

3

however did not rule out that her continued complaints were a result of secondary

gain?

In November 2005, petitioner was referred to a Dr. Jorgenson for prolotherapy, a

form of muscle injection treatment. Jorgenson diagnosed an injury to the attachment

points of ligaments and tendons to bones. He described his treatment as "a permanent

repair," and noted good response to the first of three injection treatments. He said in

April 2006 that petitioner should be able to wear her duty belt after the course of

prolotherapy and associated core strengthening were complete estimated based on

projected healing times to be in late 2006. At the time of petitioner's fourth set of

injections in August 2006, petitioner reported to Jorgenson no overall improvement.

The Medical Board made two evaluations of petitioner's case. On December 15,

2005 it stated that there was insufficient objective medical evidence to ascribe functional

limitations and on July 20, 2006 it noted that Jorgensen made no recommendations

regarding work limitations and petitioner war responding favorably to treatment.

Discussion:

Factual determinations must be sustained unless shown to be clearly erroneous.

Imagineering v. Superintendent of Insurance, 593 A.2d 1050, 1053 (Me. 1991) (noting that

the Court recognizes no distinction between the clearly erroneous and substantial

evidence in the record standards of review for factual determinations made by

administrative agencies). "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).

2 "a benefit (as sympathetiC attention) associated with mental illness." See http://medical.merriam­

webster.coml medical/ secondary+gai n

4

Petitioner's argument is solely predicated on the failure of the Board to evaluate

medical evidence contrary to Dr. Glass's expert opinion. That means that in order to

prevail she must demonstrate that there isn't any competent evidence to support the

agency's finding. Id. Petitioner points out the existence of what it calls "the crushing

weight of medical evidence contrary" to the opinion of Dr. Glass and the decision of the

Board. Particularly it points to: Dr. Upham's diagnosis on the date of the injury (R. at

1.270.); Dr. Pier's initial evaluation (R. at 1.358.); Dr. Haigney's initial report (R. at 7.6.);

the evaluation of a physical report (R. at 1.319.).

The court finds that the evidence in the record, despite evidence to the contrary,

comprises competent evidence to support the agency's finding that as of her last day of

service it was not impossible for petitioner to perform the duties of her employment

position. "Inconsistent evidence will not render an agency decision unsupported."

Seider v. Board of Examiners of Physcologists, 2000 ME 206, err 9, 762 A.2d 551, 555 (citation

omitted).

The entry is

The petition is DENIED and the decision of the Maine State Retirement

System is AFFIRMED.

April :if',2008

Date Filed _--=4u /--!.6'-1-/-"°'--L7 _ Kennebec Docket No. _--"A'"'-'P~0~7~----"3~1'____ _

County

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80C

J~ Mills

YS. Mtline <::t-ate Retirement Systems

Plaintiff's Attorney Defendant's Attorney

.f:.a4.4:B.£-a-.f:.a~4.-.p-£-e-£.e­ James M. Bowie, AAG

~"T~-~-4­ 6 State House Station

W-a~fi~-Me4fle--~~~4--­ Augusta, ME 04333-0006

Benjamin DeTroy, Esq. ChriHtopher L. Mann, AAG

Sharon, Leary & DeTroy

PO Box 3130

Auburn, ME 04212-3130

Date of

Entry

4/6/07 Petition for Review, filed. s/Campbell, Pro Se

4/13/07 Letter entering appearance, filed. s/Bowie, AAG

5/4/07 Certified Copy of Administrative Record from the Mai.ne State Retirement

System, filed. s/Larochelle, Appeals Clerk (IN VAULT)

MSRS Rules, filed.

5/7/07 Notice of briefing schedule mailed to Pltf. and atty of record.

6/14/07 Petitioner's Brief, filed. s/DeTroy, Esq.

Motion To Supplement The Record On Rule 80C Appeal, filed. s/D~Troy, Esq.

7/3/07 Respondent's Memorandum In Opposition To Petitioner's Motion To Supplement

The Record, filed 7/2/07. s/Bowie, AAG

Proposed Order, filed.

7/16/07 Respondent's Memorandum of Law in Opposition to the Petition for Review,

filed. s/Bowie, AAG

8/30/07 8/29/07:0RDER:and the entry shall be: 1. Petitioner's mbt~on(to supplment

the record is DENIED.

2. Petitioner's proffered evidence will be excluded

from consideration in the course of this appeal. s/Studstrup

8/30/07 Copies mailed to parties

Notice of sO!.tmg tot =3L <jL{)~~.--._

4/8/08 Hearing held with the Han. JustieR Joseph Jaber.

Benjamin DeTroy, Esq. for the ,Petitioner. Ch~tstopher Mann, AAG for the

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