The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. AP-15-31
ROBERT ROSSIGNOL,
Petitioner
v. DECISION
MAINE PUBLIC EMPLOYEES
RETIREMENT SYSTEM,
Respondent
Before the court is Rossignol's petition pursuant to 5 M.R.S.A. §11001 et
seq. and M.R.C.P. 80C for judicial review of a final agency action of the
Respondent's Board of Trustees. Petitioner worked as a special education teacher,
but left on April 15, 2010 because of the effect of the students' behavior on him.
He suffered from major depressive disorder, generalized anxiety disorder, and
panic attacks.
On January 5, 2011, Rossignol applied for benefits from the Maine Public
Employees Retirement System (MPERS) for the conditions of major depressive
disorder, generalized anxiety disorder, and panic attacks. On May 13, 2011, the
Executive Director denied the application finding that the medical evidence was
insufficient to determine functional limitation associated with the condition of
major depressive disorder and that the medical evidence failed to establish the
clinical existence of general anxiety disorder and panic attacks as of his last date in
service, at the time determined to be August 31, 2010. On May 19, 2011,
Rossignol appealed. Later, it was discovered that Rossignol's last date in service
was April 15, 2010, so the matter was returned to the executive Director for
reconsideration. On April23. 2012, the Executive Director affirmed the denial.
During the appeal, Rossignol submitted additional medical evidence and was
permitted to raise the new condition of post-traumatic stress disorder (PTSD).
Consequently, the matter was again returned to the Executive Director. On
September 21, 2012, the Executive Director reaffirmed the original denial and also
denied any benefits based on PTSD.
Upon reconsideration after a hearing, the Executive Director denied benefits
again on November 12, 2013.
The parties filed briefs with a Hearing Officer. On September 30, 2014, the
Hearing Officer concluded that Rossignol failed to carry his burden to establish
that he was disabled within the meaning of 5 M.R.S.A. § 17921(1). Thus, the
Hearing Officer recommended that the Board of Trustees affirm the Executive
Director's decision to deny disability retirement benefits. On April 9, 2015, the
Board of Trustees adopted the Hearing Officer's decision.
On May 13, 2015, Rossignol petitioned this Court to vacate MPERS' s
Decision and Order, remand to MPERS with instructions to approve Rossignol's
application for benefits, and award such further relief as the Court deems proper.
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Robert Rossignol had several jobs before becoming a special education
teacher. He had an Associate's Degree in Accounting and a Bachelor's degree in
accounting and business education. He taught business education for about three
years, did accounting for three to four years, and worked for L.L. Bean for about
three years. He worked as a full-time hairstylist from 1991 through 1998.
In 1998, Rossignol obtained a special education certification and taught at
the Edward Little High School in Auburn from 1998 to 2000. Rossignol then
worked as a high school special education teacher at Mashwood High School for
six years. During that time, Rossignol earned a Master's degree in special
education in 2002.
On August 27, 2009, Rossignol began working as a Classroom Special
Education Teacher for the Sebago Education Alliance (SEA) regional day
treatment program under a probationary contract. His duties included creating and
completing lesson plans, individual education plans, and incident reports; grading
students; collecting data; supervising students; and teaching all subject areas as a
special educator. Rossignol taught from one to seven students at a time, who had
emotional, behavioral, and educational disabilities. Rossignol did not have
expenence working with these kinds of students and lacked the necessary
strategies and skills for dealing with the students' behavioral challenges.
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Rossignol testified that before he began the teaching the program director,
Jennifer Searway, promised that he would not be alone in the classroom with the
students. 1 Rossignol initially had two education technicians that helped him in the
class and the three made a good team. But the technicians eventually left the
classroom: one left the program and the other was assigned to help a student
outside of the classroom for extended periods of time. This left Rossignol alone
with his class.
When he was alone, the students behavior grew out of control and became
more aggressive. Rossignol was stressed by this and developed a physical reponse
by becoming anxious and fearful about going to work, developing habitual
sniffing, had trouble sleeping, had dry heaves on the way to work, and had diarrhea
at school about twice a week. He also experienced waking up in the morning
sweating, shortness of breath, and heart palpitations.
On April 12, 2010, an assistant special education director from the
Westbrook School Department observed Rossignol teaching. The Westbrook
educator observed the students' misbehavior and reported it to Searway. Rossignol
was so upset that he consulted his doctor, James Donahue, MD. Dr. Donohue
diagnosed Rossignol with situational stress disorder resulting in generalized
anxiety disorder with associated major depressive disorder and advised Rossignol
'Denied by Searway.
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to stay home for the rest of the week. Dr. Donohue said that Rossignol had an
inability to work and treated him with an antidepressant and hypnotic for sleep.
Dr. Donohue also referred Rossignol to a Licensed Clinical Social Worker
(LCSW), David Ward. LCSW Ward concluded that Rossignol had panic attacks as
a direct result of his extreme work condition, but medications were helping. LCSW
Ward, nevertheless, recommended that Rossignol take an indefinite break from
working at SEA and concluded that it was impossible for Rossignol to return to
teaching of any kind permanently.
Rossignol claims that, on April 13, 2010, he spoke to Searway about his
mental health, but did not receive any assistance, so he had to leave school.
Searway explained that Rossignol told her that he planned to resign due to his long
commute, but never notified her of any mental health concerns. Rossignol began
unpaid leave of absence on April 15, 2010. Rossignol never returned, so school
officials notified Rossignol on June 1, 2010 that his probationary contract would
not be renewed.
After seven sesswns with LCSW Ward, Rossignol was referred to the
MaineGeneral Hospital's partial hospitalization program, where Dr. William
Matuzas and Nurse Practitioner Joanne Marmanik diagnosed Rossignol with
depressive disorder not otherwise specified, hypertension, and moderate severity of
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psychosocial stressors. Rossignol started the program in June 2010 and finished in
July 2010.
On March 15, 2011, Rossignol saw Carlyle Voss, MD. Based on
Rossignol's description of the SEA classroom and on his medical records,
Dr. Voss diagnosed Petitioner with major depressive disorder, moderate; and
anxiety disorder NOS, with features of post traumatic stress disorder. Dr. Voss
stated that Rossignol met the criteria for major depressive disorder when Rossignol
left SEA. Dr. Voss also found that Petitioner was globally impaired and unable to
work in any capacity at this point. Dr. Voss noted that Rossignol did not meet the
main criteria of having witnessed a physical injury or death or having been
threatened with that, but did have a number of symptoms of PTSD. Dr.'s Donahue
and Sattin, as well as LCSW Ward also included the diagnosis.
Nothing in Rossignol's medical records addressed generalized anxiety
disorder until he left SEA in April 2010. LCSW Ward first described Rossignol's
anxiety and panic attacks. Dr. Voss disagreed with the diagnosis of generalized
anxiety disorder. Dr. Voss also stated that Rossignol experienced panic attacks
while working at SEA.
On April1, 2011, LCSW Ward wrote that Rossignol remained disabled from
his teaching position at SEA and is currently unable to work in any capacity. Dr.
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Donohue wrote that this disability will likely be permanent given that Rossignol is
still being treated for unresolved stress related problems.
On April 21, 20 11, the MPERS Medical Board agreed with the depression
diagnosis, but stated that the major depressive disorder appears to be in remission
because of the activities that Rossignol enjoys doing. The Medical Board also
noted that there is insufficient evidence to find functional limitations associated
with the major depressive disorder diagnosis. The Medical Board agreed that
Rossignol had anxiety and panic symptoms, but stated that the records did not
show the presence of an anxiety disorder or panic attacks separate from major
depressive disorder.
On July 19, 2011, Dr. Albert Drukteinis conducted an independent
psychiatric evaluation of Rossignol. Dr. Drukteinis found no significant cognitive
dysfunction with Petitioner. Dr. Drukteinis agreed with the diagnosis of major
depressive disorder, but suggested that it might be recurrent because Rossignol had
twice before received treatment for depression and anxiety. Dr. Drukteinis stated
there is not an objectively well-established relationship between Rossignol's
mental disorders and his work because of the lack of treatment records at the time
Petitioner worked at SEA and the lack of information in personnel records
explaining what happened at SEA.
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Dr. Drukteinis listed eight potential concerns he had about the lack of
objective evidence, such as (1) Rossignol had been treated before for the disorders;
(2) Rossignol's depressive symptoms were out of proportion in the extent and
duration to the limited time Rossignol experienced stress at SEA; ... (5) Dr.
Drukteinis pointed out other factors that affected Petitioner's mental health: a
break-up with his partner, the sale of a house and construction of another,
reduction in his job responsibilities, a break-up with a new partner followed by a
resumption of that relationship, sale of the newly built home and move to Gardiner,
new employment in Bath that he left at the end of the school because of
philosophical differences, and dealing with should surgery shortly after leaving his
job at SEA; ... (8) some exaggeration in Rossignol's psychological testing.
Dr. Drukteinis diagnosed Rossignol with anxiety disorder NOS rather than
generalized anxiety disorder and added that Petitioner's symptoms became most
pronounced after Rossignol received a letter explaining that his teaching contract
would not be renewed.
In a letter dated December 29, 2011, Dr. Donahue stated that Rossignol's
limited return to hair styling was affected by panic attacks, short attention span,
and hyper vigilance.
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On March 22, 2012, the Medical Board affirmed its prior opinion and found
there was insufficient support for functional limitations attributable to major
depression with anxiety symptoms.
On May 25, 2012, Dr. Dana Sartin, Ph.D. a psychologist noted that
Rossignol's symptoms were consistent with the development of PTSD. Dr. Sartin
also found that Rossignol's depression was a byproduct of the unexpected change
in his career path.
On December 20, 2012, the Medical Board reaffirmed it prior opinions by
finding that the functional limitations continued to be unsupported by the evidence.
The Medical Board agreed with Dr. Sartin's statement that the records gave the
overall impression that Rossignol's symptoms of depression and anxiety occurred
or were exacerbated by unexpected change in his career path. The Medical Board
affirmed its opinion that Rossignol did not have PTSD because he cannot be
diagnosed with it in the absence of actual threatened death or serious injury to
himself or another in immediate proximity.
On November 7, 2013, the Medical Board concluded that Rossignol's
anxiety and panic attacks were merely symptoms of his major depressive disorder.
Thus, the evidence did not support a diagnosis of panic attacks.
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On September 20, 2014, the Hearing Officer, F. Mark Terison, completed
his evaluation of Rossignol's claims of disability and made the following findings
about Petitioner's major depressive disorder, general anxiety disorder and panic
attacks, and post-traumatic disorder.
1. Major depressive disorder.
Resolving the conflict in the evidence is a close issue. However, it is
Mr. Rossignol's burden to prove by a preponderance of the evidence
in the record as a whole that functional limitations associated with
major depressive disorder made it impossible for him to work as a
special education teacher as of April 15, 2010. The hearing officer
must weigh the evidence as a whole, both objective evidence and
subjective evidence alike. Unlike Dr. Drukteinis, I do not look for
objective evidence connecting the existence of Mr. Rossignol's major
depressive disorder to his work at SEA. Rather, I look for functional
limitations associated with the major depressive disorder, and whether
those limitations made it impossible for Mr. Rossignol to do his job at
SEA as of April 15, 2010. Still, I am swayed by Dr. Drukteinis's
opinion because he found only "mild difficulties with immediate
memory and mental calculations," and "no significant cognitive
dysfunction" attributable to Mr. Rossignol's major depressive
disorder. Further, I find it significant that there was a lack of
aggressive treatment of Mr. Rossignol's condition while he was
working at SEA and experiencing the functional limitations claimed.
I am also influenced by Mr. Rossignol's own testimony that he did not
have experience working with special education students with
emotional and behavioral problems, and that he lacked the necessary
strategies and skills for dealing with the behavioral challenges that the
students posed. My view of the record is that his lack of experience,
strategies, and skills far outweighed any limitations to classroom
functioning that may have been due to his major depressive disorder.
Indeed, even with major depressive disorder Mr. Rossignol testified
that he and the two educational technicians originally assigned to his
classroom made a "very good" team until one left and the other was
assigned to accompany a student who required "one-to-one"
supervision for a part of the day. Thus, Mr. Rossignol understood that
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he functioned well in the classroom under those conditions, even in
the face of his mental health challenges. Indeed, at his last date in
service he hoped to return to the classroom with the assistance of
educational technicians that he wished to be assigned following the
visit from the Westbrook educator. With termination of his contract,
that could not happen. It was then, Dr. Drukteinis observed, that
evidence of inability to function due to major depressive disorder
presented itself. I find that the opinion of Dr. Drukteinis and that of
the Medical Board carry greater weight than contrary opinion, and
thus conclude on the record as a whole that Mr. Rossignol has failed
to carry his burden of proof by a preponderance of the evidence.
(Hearing Officer's Recommendation at 13.)
2. General anxiety disorder & panic attacks.
Over all, the question concerning the existence of the conditions of
generalized anxiety disorder and panic attacks is a close one, and
resolution of the matter depends upon both the burden of proof and
the weight assigned to specific evidence. I take seriously the Medical
Board's caution about "retroactive clinical formulations," and the
necessity of proof of the existence of a condition as of the last date in
service. Here, it appears as if the panic attacks and existence of any
panic disorder were better demonstrated more than a year-and-a-half
following the last date in service than in April 2010. The slowness of
Dr. Voss's decision to add a panic disorder weighs heavily.
Generalized anxiety disorder, according to Dr. Voss, did not exist at
all. Again, I assign great weight to the opinion of Dr. Drukteinis who
pointed out that although Mr. Rossignol reported symptoms of severe
anxiety and frequent panic attacks while working at SEA, there was
no record of medical treatment at the time. The doctor's observation
that Mr. Rossignol's symptoms "became most pronounced after he
received a letter on 06/01110 in which his contract for the following
school year was not renewed, and he was 'terminated"' is significant
and influential. Finally, the Medical Board's opinion that that attacks
were merely symptoms of major depressive disorder and not separate
diagnosis carries significant weight. Although the question is close, I
cannot conclude that Mr. Rossignol has carried his burden to show by
a preponderance of the evidence that clinical existence of the
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conditions of general anxiety disorder and panic attacks as of April
15, 2010, his last date in service.
(Hearing Officer's Recommendation at 15-16.)
3. Post traumatic stress disorder.
I conclude that the record as a whole does not establish by a
preponderance of the evidence that Mr. Rossignol suffered from the
condition of PTSD. He has not shown that he experienced, witnessed,
or was confronted with an event or events that involved actual or
threatened death or serious injury, or a threat to the physical integrity
of himself or others. According to the DSM-IV, such an event is
necessary to the diagnosis. Lacking any proof of such an event, Mr.
Rossignol has not carried his burden of proof.
(Hearing Officer's Recommendation at 16.)
A MPERS "member qualifies for a disability retirement benefit if disabled
while in service and ... before normal retirement age." 5 M.R.S.A. § 17924(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 it is impossible to perform the duties of the member's employment
position.
C. After the incapacity has continued for 2 years, the incapacity must render
the member unable to engage in any substantially gainful activity for
which the member is qualified by training, education or experience; and
D. The incapacity may be revealed by examinations or tests conducted in
accordance with section 17926.
5 M.R.S.A. § 17921(1).
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This Court may affirm the agency's decision, remand the case, or modify or
reverse the decision. 5 M.R.S.A. § 11007(4)(A)-(C). This Court may "[r]reverse
or modify the decision if the administrative findings, inferences, conclusions or
decisions are:
( 1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon lawful procedure;
(4) Affected by bias or error of law;
(5) Unsupported by substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion.
5 M.R.S.A. § 11007(4)(C).
"A party seeking to overturn an agency decision bears the burden of
persuasion on appeal." Anderson v. Me. Pub. Emples. Ret. Sys., 2009 ME 134, ~ 3,
985 A.2d 501 (citations omitted). When an agency concludes that the party with
the burden of proof failed to meet that burden, courts will reverse that
determination only if the record compels a contrary conclusion to the exclusion of
any other inference. Kelley v. Me. Pub. Emples. Ret. Sys., 2009 ME 27, ~ 16, 967
A.2d 676 (citation omitted). In other words, "findings of fact of the Board, and
other administrative agencies, must be reviewed deferentially, and a court can
reverse a finding of failure to meet a burden of proof only if the record compels a
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contrary conclusion to the exclusion of any other inference." Anderson v. Me. Pub.
Emples. Ret. Sys., 2009 ME 134, ~ 28, 985 A.2d 501 (citations omitted).
"Inconsistent evidence will not render an agency decision unsupported."
Seider, 2000 ME 206, ~ 9, 762 A.2d 551, 555 (Me. 2000). The burden of proof
rests with the party seeking to overturn the agency's decision. Seider, 2000 ME
206, ~9, 762 A.2d 551, 555 (Me. 2000). The party must prove that no competent
evidence supports the Board's decision. Seider, 2000 ME 206, ~9, 762 A.2d 551,
555 (Me. 2000). "The court shall not substitute its judgment for that of the agency
on questions of fact." 5 M.R.S.A. § 11007(3).
Rossignol argues that the Board's findings on major depressive disorder,
general anxiety disorder and panic attacks are not supported by the record as a
whole and that any rational analysis of the record will compel this Court to make
contrary conclusion to the exclusion of any other inference. Rossignol does not
explain how the record compels a contrary conclusion to the exclusion of any other
inference.
Instead, Petitioner identifies the facts that benefit him. Rossignol describes
in detail the diagnoses that favor him. He describes diagnoses from Dr. Voss, Dr.
Donahue, David Ward, LCSW, Dr. Sartin, and even Dr. Drukteinis and MPERS
witness.
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Although this evidence contradicts other evidence in the Record, it is not
enough to render an agency decision unsupported. The Hearing Officer considered
all the evidence, even the evidence that favored Rossingol. Although the evidence
made this a close case, the Board had enough evidence in the record to support its
findings and conclusions. Rossignol has the burden proof here, but he has failed to
satisfy that burden. This Court cannot substitute its judgment for the Board's. See
Anderson v. Me. Pub. Emples. Ret. Sys., 2009 ME 134, ~ 28, 985 A.2d 501
(citations omitted).
Rossignol argues that the Board of Trustees acted arbitrarily and
capriciously as shown by the bias from the Medical Board, Executive Director, the
Hearing Officer, and the Board of Trustees plus the record that supports
Rossignol's diagnoses. As explained above, there is no evidence of bias and the
record does support the Board's decision, even if there is evidence that supports
Rossignol's arguments.
Rossignol insists:
the Medical Board appointed by the System, the Executive Director of
the System, the Hearing Officer appointed by the System, and the
Board of Trustees of the System share culpability for the System's
unjustifiable refusal to extend to Mr. Rossignal the disability
retirement benefits to which he is entitled under the law. The
collective conduct reflects a clear case of unconscionable bias.
15
Rossignol presents no evidence that the Medical Board, Executive Director, the
Hearing Officer, or the Board of Trustees was biased.
Due process requires a fair and unbiased hearing. Friends of Maine's Mts.
V Ed. Of Envtl. Prot., 2013 ME 25 ~ 23, 61 A.3d 689. To show bias, petitioners
must present evidence sufficient to overcome a presumption that the fact- finders,
as state administrators, acted in good faith. Id. A ruling against a petitioner alone
is not sufficient to establish bias. See id.
Rossignol argues that he submitted his application for disability-retirement
benefits based on the combined effects of severe major depressive disorder,
general anxiety with features of post-traumatic stress disorder and panic attacks.
Rossignol argues that the Board failed to consider the combined effects, which is
required under Hale-Rice v. Maine State Retirement Sys., 1997 ME 64, 691 A.2d
232. In Hale-Rice, the plaintiff argued that that Board did not consider the
combined effect of her physical and emotional problems. Hale-Rice, 1997 ME 64,
~ 10. The court found that the Board implicitly rejected the plaintiffs factual
contention that the combined effects of her problems rendered her disabled. !d. ~
11. While asserted in his brief, it does not appear that petitioner made the
combined effect argument before the agency.
"Generally, plaintiffs in a Rule 80C proceeding for review of final agency
action are expected to raise any objections they have before the agency in order to
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preserve these issues for appeal. Issues not raised at the administrative level are
deemed unpreserved for appellate review .... This rule applies even to unpreserved
issues implicating constitutional questions ... " New England Whitewater Ctr. v.
D.I.F. W, 550 A.2d 56, 58 (Me. 1988); see also Hale-Rice v. Maine State
Retirement Sys., 1997 ME 64, ~10 n. 2, 691 A.2d 1232. "An issue is raised and
preserved if there was a sufficient basis in the record to alert the court and any
opposing party to the existence of that issue." Verizon New Eng. V PUC, 2005
ME 16, ~ 15, 866 A.2d 844.
Petitioner argues that public policy reqmres that the Board grant his
application for benefits in order to maintain public faith in the Maine Public
Employees Retirement System. This Court has no jurisdiction to reverse the
Board's decision based on public policy. This Court is bound by the record and
will reverse "only if the record compels a contrary conclusion to the exclusion of
any other inference. Kelley v. Me. Pub. Emples. Ret. Sys., 2009 ME 27, ~ 16, 967
A.2d 676 (citation omitted).
For reasons stated herein, the entry will be:
Petition DENIED; the Board of Trustees Decision and Order of April
9, 20 15 in Appeal #20 11-047 is AFFIRMED.
The clerk may docket by reference.
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December 1, 2015
JUSTICE, SUPERIOR COURT
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