The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
DOCKET NO. AP-15-49
SHANE HEATH, )
)
Petitioner )
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) ORDER ON RULE SOC APPEAL
BOARD OF TRUSTEES, MAINEPERS )
)
Respondent. )
Before the Court is Petitioner's appeal of the denial of his application for
disability retirement benefits by MPERS.
I. Background
a. Medical
In 2003, Petitioner first met with Dr. Rice for an eye injury resulting from
playing softball. (R. at 3). According to Dr. Rice's February 19, 2014 report,
Petitioner had suffered "substantial permanent vision loss in the left eye to
glaucoma and showed signs of incipit glaucoma in the right." (R. at 43.5). Dr.
Rice prescribed treatment with drop therapy, which Petitioner followed for
several years. (R. at 43.5). Petitioner developed a traumatic cataract in the left
eye. (R. at 43.5). Dr. Rice removed the cataract in 2008. (R. at 43.5). Thereafter,
Petitioner's vision was significantly improved to 20 I 20 in his left eye, although
he was diagnosed with irreversible and substantial visual field loss due to
glaucoma. (R. at 43.6). In December 2012, Petitioner complained to Dr. Rice that
he suffered severe glare affecting both night and day driving. (R. at 43.6). Dr.
Rice successfully performed cataract surgery on Petitioner's right eye. (R. at 43.6).
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On December 28, 2012 and January 16, 2013, Petitioner's vision was
measured at 20 / 20 by Dr. Rice. (R. at 43.6). Petitioner left work February 5, 2013
and did not return. (R. at 43.6). On February 11, 2013, Petitioner met with Dr.
Rice complaining of having trouble on the job. (R. at 43.6 ). His vision was again
measured at 20/20. (R. at 43.6). Dr. Rice wrote a note recommending that
Petitioner be taken off duty because of a flare up of preexisting glaucoma for the
next 2-3 weeks. (R. at 43.6). On February 20, 2013, Petitioner's vision was
measured at 20 / 20 in the right eye and 20 / 25 in the left. (R. at 43.6). At that time
Dr. Rice wrote a second note concerning Petitioner's employment stating that
Petitioner should remain off duty through April 3, 2013. (R. at 43.6).
In April 2013, Petitioner complained of foggy vision and Dr. Rice
performed a YAG laser capsulotomy on May 13, 2013. (R. at 43.6). Dr. Rice stated
that this procedure usually resolves problems of glare and foggy vision. (R. at
43.6). On May 29, 2013, Dr. Rice's note indicated that Petitioner had reported
glare symptoms and did not feel safe performing his job. (R. at 43.6). Dr. Rice
stated that he was not qualified to determine whether Petitioner was able to
continue working as a patrolman. (R. at 43.6).
On June 27, Petitioner's vision was measured at 20 /20 on the right eye
and 20 I 30 on the left eye. (R. at 43.6). Under glare stress, his vision was
measured at 20 / 30 on the right and 20 / 50 on the left. (R. at 43.6). In a February
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19, 2014 letter, Dr. Rice reported that Petitioner had complained of glare and fog
interfering with his vision making him feel unsafe doing his job. (R. at 43.6). In a
letter dated February 20, 2014, Dr. Rice stated that the reported symptoms of
glare and fog likely resulted from the damage to his left eye. (R. at 43.7). In that
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letter Dr. Rice concluded that Petitioner "was incapable of pursuing his current
line of work as of February 5, 2013. (R. at 43.7).
b. Employment
Petitioner returned to the Berwick Police Department in 2002 after living
outside of Maine. (R. at 43.7). Petitioner was considered marginal employee. (R.
at 43.7). He had been disciplined on multiple occasions. (R. at 43.7). On January
28, 2013, shortly before he left work, the Town of Berwick Employee
Performance Evaluation stated that his reporting was unsatisfactory, he failed to
accept responsibility, and he was overall not meeting the expectations of the
employer. (R. at 43.7).
On February 5, 2013, Chief Towne scheduled a meeting with Petitioner to
discuss a new incident under investigation. (R. at 43.7). The meeting was to
discuss the investigation of Petitioner's possible use of excessive speed. (R. at
43.7). In the meeting, Petitioner told Chief Towne that he did not intend to work
past April 2013 at which point he would have put in sufficient years to receive
his full pension. (R. at 22.20, 24, 62). After the meeting, Petitioner left work and
returned only to voluntarily clean out his desk and hand in his firearm. (R. at
43.7). On February 7, 2013, after Petitioner's departure, a notice was issued to
Petitioner concerning a meeting to begin investigation for a situation involving a
possibly impaired driver who Petitioner allowed to drive herself home. (R. at
43.8). The investigations were put on hold during Petitioner's absence. (R. at
43.8). Because Petitioner did not return to work, the investigations were never
completed. (R. at 43.8).
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c. Procedural History
Petitioner applied for disability retirement benefits on February 28, 2013. His
application was denied by the Executive Director ("ED") on June 24, 2013. (R. at
43.3). Petitioner filed an appeal on July 23, 2013. (R. at 43.3). The hearing took
place on March 26, 2014. (R. at 43.3). MPERS deposed Chief Timothy Towne on
April 22, 2014. (R. at 43.3). MPERS issued a decision on July 23, 2014
accompanied by a memorandum from the Medical Board dated July 17, 2014
affirming the determination of the ED. Both parties submitted memorandum on
August 22, 2014. (R. at 43.3). The Hearing Officer's Recommended Decision For
Comment issued on December 22, 2014. (R. at 43.4). The Board of Trustees (the
"Board") adopted the Recommended Decision on June 11, 2015. (R. at 43.2).
II. Standard of Review
The court's review of an action for administrative appeal is "deferential
and limited." Watts v. Bd. of Envtl. Prat., 2014 ME 91, err 5, 97 A.3d 115. The court
only reviews adjudicatory decisions "for abuse of discretion, errors of law, or
findings not supported by the substantial evidence in the record." Wyman v.
Town ofPhippsburg, 2009 ME 77, err 8, 976 A.2d 985. The court will "not vacate an
agency's decision unless it: violates the Constitution or statutes; exceeds, the
agency's authority; is procedurally unlawful; is arbitrary or capricious;
constitutes an abuse of discretion; is affected by bias or an error of law; or is
unsupported by the evidence in the record." Kroeger v. Dep't of Envtl. Prat., 2005
ME 50, err 7, 870 A.2d 566.
The party attempting to vacate the agency's decision bears the burden of
persuasion. Town ofJay v. Androscoggin Energy, LLC, 2003 ME 64, err 10, 822 A.2d
1114. If the agency's decision was committed to the reasonable discretion of the
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agency, the party appealing has the burden of demonstrating that the agency
abused its discretion in reaching the decision. See Sager v. Town of Bowdoinham,
2004 ME 40, err 11, 845 A.2d 567. "An abuse of discretion may be found where an
appellant demonstrates that the decision maker exceeded the bounds of the
reasonable choices available to it, considering the facts and circumstances of the
particular case and the governing law." Id. Ultimately, the petitioner must prove
that "no competent evidence" supports the agency's decision. Seider v. Bd. of
Examiners of Psychologists, 2000 ME 206, err 9, 762 A.2d 551 (citing Bischoffv. Bd. of
Trustees, 661 A.2d 167, 170 (Me. 1995)). The mere fact that there is "[i]nconsistent
evidence will not render an agency decision unsupported." Id.
III. Discussion
In order to be eligible for MPERS disability retirement benefits, one must
have been fully and permanently disabled while in service. 5 M.R.S. § 17924. One
is disabled when he is mentally or physically incapacitated and that incapacity is
expected to be permanent and makes it impossible for him to perform the
essential duties of his employment position. 5 M.R.S. § 17921. The MERS Medical
Board was established to provide expert advice to MPERS on the existence of
physical and mental functional limitations entitling an applicant to benefits. See 5
M.R.S. § 17106.
In this case, the Medical Board based its advice to the ED in part on
Petitioner's employment history. The Medical Board was skeptical of the timing
of Petitioner's glaucoma flare up and the fact that Petitioner never requested an
accommodation for his vision issues or indicated to Chief Towne that he was
having any difficulty at work. Additionally, the Medical Board found it unlikely
that Petitioner's complaints from glare arose from the traumatic glaucoma and
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left eye visual field loss that had been present for years. Petitioner alleges that
any consideration of Petitioner's employment history is irrelevant and,
furthermore, it is not within the purview of the Medical Board to consider. The
question before the Court is whether the Medical Board may consider such
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employment information in advising MPERS whether a mental or physical
limitation is present.
The Court does not need to reach the legal question of whether the
Medical Board may consider employment history in making a determination,
because even without the Medical Board's concerns about Petitioner's
employment history, there is competent evidence on the record to support the
decision adopted by the Board. The Board is able to determine the weight to be
afforded to various medical evidence in light of other relevant factors, such as
Petitioner's stated intent to leave employment as soon as his pension had vested
or the fact that Petitioner left employment immediately after a meeting to discuss
investigation of possible wrong doing on Petitioner's part. See 5 M.R.S. §§ 17106,
17106-A. Furthermore, the Board is permitted to accord weight to the Medical
Board's opinion that Petitioner's complaints of glare were unlikely to have arisen
from glaucoma and visual field loss diagnosed many years prior. Because the
Court finds that there is evidence in the record to support the determination by
the Board, the Court affirms the Board's determination.
IV. Conclusion
Petitioner has not met his burden of showing that the Board's
determination "violates the Constitution or statutes; exceeds the agency's
authority; is procedurally unlawful; is arbitrary or capricious; constitutes an
abuse of discretion; is affected by bias or an error of law; or is unsupported by
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the evidence in the record." Kroeger, 2005 ME 501 ~ 7. Therefore, the Court affirms
the Board of Trustees 1 Decision and Order of June 11, 2015.
The Clerk is directed to incorporate this Order into the docket by reference
in accordance with M.R. Civ. P. 79(a).
DATE: ~~
MkhaelaMlrrphy
Justice, Superior Court
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