STATE OF MAINE SUPERIOR COURT SAGADAHOC, ss. CIVIL ACTION DOCKET NO. AP-16-04
RANDY BODGE, ) ) Petitioner ) ) v. ) ORDER ON ) MOTION TO RECONSIDER MAINE PUBLIC EMPLOYEES ) RETIREMENT SYSTEM, ) ) Respondent )
The Petitioner's Motion to Reconsider is DENIED. As noted by the Respondent in its
opposition to the motion, whether or not to hold oral argument is left to the discretion of the
court 1• In matters of this type, the court's consideration is limited to the record and the law. The
matter was well briefed and the law is well established. After consideration of the briefs and the
record, the court concluded that oral argument would not assist the court in resolving thi(atter.
Date: May31,2017 ~& Daniel I. Billings Justice, Maine Superior Court
1 By issuing a decision on the petition without oral argument, the court has otherwise
directed that oral argument will not be conducted, as allowed by Rule 80C.
1 STATE OF MAINE SUPERIOR COURT SAGADAHOC, ss. CIVIL ACTION DOCKET NO. AP-16-04
RANDY BODGE, ) ) Petitioner ) ) V. ) ORDER ON ) 80C PETITION MAINE PUBLIC EMPLOYEES ) RETIREMENT SYSTEM, ) ) Respondent )
This matter is before the Court on Petitioner Randy Bodge's Rule 80C appeal of the final
decision of the Board of Trustees (the "Board") of the Maine Public Employees Retirement
System ("MainePERS") to deny Petitioner's application for disability retirement benefits.
Petitioner contends that the record evidence compels a finding contrary to the Board's decision.
I. BACKGROUND
A. Procedural History
On July 9, 2013, Petitioner applied to MainePERS for disability retirement benefits on
the basis of carcinoid tumor. 1 On September 6, 2013, MainePERS' Executive Director denied
Petitioner's application after finding that there were no functional limitations associated with
Petitioner's carcinoid tumor, and therefore Petitioner's condition did not make it impossible to
perform the essential duties of his position. Petitioner appealed.
In December 2013, Petitioner filed an application addendum raising two new conditions
for consideration: anxiety and severe depression. On January 6, 2014, the Executive Director
1 Petitioner also applied on the basis of Lyme disease but later dismissed that claim.
1 issued a decision finding that Petitioner suffered from neither anxiety nor severe depression as of
June 26, 2013, and otherwise affirming her September 2013 decision.
In March 2014, due to an agreement between Petitioner and his employer, Petitioner's
final date of service changed from June 26, 2013 to November 13, 2013.
An administrative hearing on Petitioner's appeal was held April 18, 2014. The hearing
officer identified the following issues for consideration: (1) "whether the medical evidence
establishes functional limitations associated with the carcinoid tumors that make it impossible for
[Petitioner] to perform the essential duties of his job as of the last date in service" and (2) "with
respect to the condition of anxiety and depression ... whether that condition exists as of the last
date in service of November 13th of 2013." Petitioner testified at the hearing. Petitioner's
oncologist, G. Richard Polkinghorn, M.D., was deposed on May 21, 2014, and his deposition
was included in the hearing record.
On September 5, 2014, the Executive Director issued a third decision affirming the
September 2013 and January 2014 decisions in light of the change in Petitioner's last date of
service.
Between the April 18, 2014 hearing and early September, 2014, a new hearing officer
was assigned to Petitioner's case, prompting Petitioner to move to begin the appeal process
anew. On October 16, 2014, the hearing officer denied in part Petitioner's motion to begin anew
and granted it in part by agreeing to hold a second hearing in order to personally assess
Petitioner's credibility and ask Petitioner questions. The hearing was held on January 28, 2015.
On August 28, 2015, the hearing officer issued a Recommended Decision for Comments
denying Petitioner's application. Petitioner submitted comments on September 14, 2015. On
February 24, 2016, the hearing officer issued (1) a response to Petitioner's comments and (2) his
2 Recommended Final Decision for the Board. As indicated by the hearing officer's response to
Petitioner's comments, the Recommended Final Decision is substantially similar if not identical
to the Recommended Decision for Comments.
On March 3, 2016, Petitioner requested a review pursuant to System Rule 7012(16) and 5
M.R.S. § 17106-A ("section 17106-A review".) Petitioner induded with his request for review
his comments on the hearing officer's Recommended Final Decision. On March 28, 2016,
counsel for the Board issued the section 17106-A review, finding that the hearing officer's
Recommended Final Decision contained no errors of law, was supported by the record as a
whole, and did not exceed the hearing officer's authority or jurisdiction.
On June 9, 2016, the Board issued its Final Decision adopting and attaching the hearing
officer's Recommended Final Decision.
MainePERS mailed its Final Decision to Petitioner on June 20, 2016. Petitioner filed the
pending petition for review on July 14, 2016.
B. Medical and Employment History
The following facts, which are supported by competent evidence in the record, are drawn
from the Recommended Final Decision issued by the hearing officer and adopted by the Board
as its Final Decision (the "Decision"). See Jalbert v. Me. Pub. Emples. Ret. Sys:.., 2017 ME 69, i
I1,_A.3d_.
Petitioner was employed by the Maine Department of Transportation (the "MDOT") for
over 20 years, eventually working his way from a laborer position on a bridge maintenance crew
to a management position overseeing several bridge maintenance and operation crews
throughout the State. (R. 54.3, 7.) Petitioner's job generally required him to spend one day a
week in the office and four days a week driving to various work sites, "where he evaluated the
3 work, supervised the work, addressed any personnel issues and provided technical advice." (R.
54.7.) He testified that he would "often 'travel several hundred miles a day if need be."' (R.
54.11.) Further, when visiting sites, he "had to walk down the [bridge] slide slope to view the
work and occasionally climb on staging." (R. 54.7.) However, Decision also states that "[t]here
were no physical requirements in the job." (R. 54.7.)
In early 2013, Petitioner was diagnosed with cancer m the form of an abdominal
carcinoid tumor.2 (R. 54.3, 7-8.) On February 20, 2013, surgeons removed a portion of the
tumor, along with a portion of Petitioner's small bowel, but found that the remainder of the
tumor was inoperable. (R. 54.8.) On March 11, 2013, 3 Petitioner was seen by oncologist G.
Richard Polkinghorn, M.D., who informed Petitioner that the recommended course would be
observation unless the disease progressed or become symptomatic, in which case he would likely
recommend Sandostatin treatment. (R. 54.8.) On May 28, 2013, Petitioner was seen by Matthew
H. Kulke, M.D., at the Dana Farber Cancer Institute in Boston for a second opinion. (R. 54.11.)
Dr. Kulke's notes indicate that Petitioner reported experiencing diarrhea and flushing. (R. 54.11.)
Petitioner returned to work in April 2013. (R. 54.3.)
Petitioner was next seen by Dr. Polkinghorn on June 10, 2013, and reported that he was
suffering from diarrhea, hot flashes, and mood changes. (R. 54.8.) Tests revealed that
Petitioner's chromogranin-A level was high, and Dr. Polkinghorn scheduled Petitioner to begin
monthly injections of Sandostatin. (R. 54.8.) When Petitioner returned to begin Sandostatin
treatment on June 14, 2013, he complained of "severe anxiety, racing mind, and poor
performance at work." (R. 54.8.) Dr. Polkinghorn prescribed Petitioner Ativan and in his notes
2 At times the record suggests that Petitioner has multiple carcinoid tumors clumped together as opposed to one singular carcinoid tumor. The discrepancy is not remarked upon by the parties and does not appear to be relevant to Petitioner's application or appeal. 3 The Decision erroneously lists the year as 2015. (R. 54.8.)
4 described Petitioner's anxiety as "multifactorial including diagnosis of cancer as well as stresses
at work and apparently at home." (R. 54.8.) Petitioner returned again on June 17, 2013, at which
time he complained of flushing, diarrhea, and "significant anxiety." (R. 54.8.)
Despite these reported symptoms, Petitioner worked full-time and did not request any job
modifications, although "there was evidence that he was receiving sumt: assistance from
subordinates in order to fully perform his job duties." (R. 54.11, 12, 14.) Petitioner would later
testify that he abstained from taking his prescribed pain medication and other medications while
he was working "as he needed to drive, etc." (R. 54.11.)
On June 26, 2013, Petitioner was placed on unpaid leave for disciplinary reasons. (R.
54.3, 7, 12, 14.) Petitioner initiated a grievance and requested reinstatement. (R. 54.3, 7, 12, 14.)
The grievance was settled in 2014. (R. 54.3, 7, 12, 14.) Pursuant to the settlement Petitioner's
termination was rescinded and he resigned effective November 13, 2013. (R. 54.3, 7, 12,
14.)Petitioner's last day in service for the purposes of his disability retirement benefit application
was therefore changed to November 13, 2013. (R. 54.3, 7, 12, 14.)
On July 10, 2013, Petitioner was seen by Susan C. Trafton, PA-C, for "refractory
diarrhea, flushing ... sweating post prandially." Petitioner also reported "intermittent nausea
without vomiting," "generalized body pain," "difficulty with minimal sleep due to mental tension
and anxiety," and "a history of anxiety predating his malignancy." (R. 54.8.) On July 15, 2013,
Petitioner was seen by Dr. Polkinghorn, who noted that Petitioner suffered from "[s]evere
weakness [and] fatigue related to malignancy . . . . complicated by significant anxiety[ and]
depression, also likely related to his underlying malignancy in the stress of his loss of current
health." (R. 54.9.) Dr. Polkinghorn also indicated that Petitioner's prescriptions included
lorazepam and Restoril. (R. 54.9.) On July 17, 2013, Petitioner was seen by his primary care
5 physician, Donald Strickland, M.D., who noted that "a good day" for Petitioner was "six or
fewer episodes of urgent diarrhea" but a "normal day is 12 or more episodes." (R. 54.10.) Dr.
Strickland added that Petitioner "has not been able to work because of this" and that Petitioner
felt "fatigued" and "depressed." (R. 54.10.) He prescribed Petitioner Wellbutrin. (R. 54.10.)
On September 9, 2013, Petitioner was seen by Dr. Polkinghorn, who noted that
Petitioner's "chromogranin-A levels had normalized," and "blood work was excellent," but that
Petitioner "remain[ed] quite symptomatic," with symptoms including "significant diarrhea,
weakness, fatigue, [and] anxiety." (R. 54.9.) On September 18, 2013, Petitioner began treating
with clinical psychologist David Houston, Ph.D., who noted that Petitioner "felt anxious and
depressed in the context of the diagnosis of carcinoid tumor," and diagnosed Petitioner with
general anxiety disorder and major depressive disorder. (R. 54.13.)
On a October 7, 2013 medical intake form, Petitioner reported hot flashes and night
sweats that "seem[ed] to be increasing," daily abdominal pain, nausea, and "continuous
diarrhea." (R. 54.15.) Under "Ability to cope," he selected the following symptoms: "depression,
Anxious, Suicidal thoughts, sleep disturbance, [and] memory loss." (R. 54.15.) He then wrote:
"[t]he anxiety and memory loss seem to be more often in therapy." (R. 54.15.) On October 22,
2013, Petitioner was seen by Dr. Strickland for chest pain and depression. Dr. Strickland
believed the chest pain to be "non cardiac related" and noted that the Wellbutrin seemed to be
helping Petitioner's depression. (R. 54.10.)
On a November 5, 2013 medical intake form, Petitioner reported "[h]eavy sweating,
weight loss, appetite: up and down, ongoing shortness of breath, nausea, severe diarrhea and
daily abdominal pain." (R. 54.16.) He added, "[t]reating depression but it still occurs, short term
memory loss is increasing. Anxiety being treated but not controlled." (R. 54.16.)
6 Although he had not worked in four and a half months, November 13, 2013, was
Petitioner's last date of service. (R. 54.14.)
On December 3, 2013, Petitioner was seen by Dr. Polkinghorn, who noted that
Petitioner's cancer was stable but that Petitioner still reported experiencing diarrhea. (R. 54.9.)
Dr. Polkinghorn referred Petitioner to a gastroenterologist for diarrhea management. (R. 54.9.)
Also on December 3, 2013, Petitioner was seen by Dr. Strickland, who noted, "I think what
would help [Petitioner's depression] is getting out of the house, more socializing, routine
exercise, but all of that is difficult given his present medical situation." (R. 54.10.) On December
20, 2013, psychiatrist Mitchell Pulver, M.D., wrote, "I think that [Petitioner] has major
depression brought on by his health problems," and indicated that he had prescribed Petitioner
Zoloft. (R. 54.10.)
At the April 2014 administrative hearing, Petitioner testified that he had diarrhea six to
eight times a day and that "it was getting progressively worse." (R. 54.12.) He also testified "that
he had not had mental health treatment prior to the cancer diagnosis but was seeing Dr. Pulver, a
psychiatrist, Dr. H[ o]uston a psychologist[,] and a counselor, Allison Basile," and also that he
"saw Carol Maxwell once or twice a week." (R. 54.12.) He testified that although he requested
reinstatement in June 2013 and had not requested any job modifications, he also "knew he could
not do the job," "did not have the energy to work," "could not do the hours," "could not drive
with the medications that he was prescribed," and "could not work due to headaches,
concentration and decision making [being] impaired." (R. 54.12.)
At Dr. Polkinghorn's May 2014 deposition, when "asked to reconcile an earlier letter he
wrote asserting that [Petitioner] could not perform the duties of his job with contrary evidence
that he was performing his job up to June 2013," Dr. Polkinghorn responded, "[m]y opinion was
7 that given the symptoms he was sharing with us, that it would be virtually impossible for
someone to have as much symptoms as he was relating to be able to be fully active and perform
ajob." (R. 54.16.)
At the January 2015 hearing, Petitioner testified that his monthly Sandostatin treatments
"were extremely painful and made him sick for seven to ten days" after each treatment, but also
that he never missed work following treatment. He also testified "that he realized 2-3 weeks after
his return to work after his surgery that he could not do the job. He said that he could not handle
the stress, and the physical climbing and the length of his work day. He did, however, continue
to work until he was terminated ...." (R. 54.11.)
C. Medical Board Findings
The MainePERS Medical Board reviewed the record and issued findings on three occasions:
first on September 5, 2013, next on January 2, 2014, in response to Petitioner's application
addendum, and finally on September 4, 2014, in response to the change in Petitioner's last date
of service.
On September 5, 2013, the Medical Board found that following his February 2013 surgery,
Petitioner had returned to work "full duty on a full-time basis without apparent significant
difficulty," and that that although Petitioner's medical records indicated that he "was having
some difficulty with diarrhea 6-8 times daily, there [was] no indication within the records
provided that functional limitations were warranted regarding carcinoid tumors (cancerous) as of
June 26, 2013." (R. 54.12-13.)
8 On January 2, 2014, the Medical Board wrote that although on July 17, 2013, Petitioner's
primary care physician4 noted that Petitioner felt fatigued and depressed, the physician' s notes
"did not document symptoms and signs fully consistent with an anxiety disorder and depressive
disorder per DSM IV criteria." (R. 54.13.) With regard to Petitioner's diagnoses of general
anxiety disorder and major depressive disorder, the Medical Board found that Dr. Houston,5 who
made the diagnoses, "did not clearly delineate signs and symptoms fully consistent with either of
these conditions in his notes." (R. 54.13.)
On September 4, 2014, the Medical Board wrote that although Petitioner "continued to
complain of significant diarrhea, fatigue and flushing," his laboratory results were
"unremarkable, and physical examinations [had] not revealed evidence of significant
difficulties." (R. 54.13.) Furthermore, although Petitioner's treating physicians "alleged that
[Petitioner] has no work capacity due to his condition," they "offered no information to confirm
these assertions." (R. 54.13.) The Medical Board concluded that Petitioner's medical records did
not "support the presence of functional limitations as of November 13, 2013." (R. 54.13.) In
addition, the Medical Board again concluded, "the records [did] not clearly support the existence
of anxiety and severe depression as of November 13, 2013." (R. 54.13.)
D. The Decision
In the Decision adopted by the Board, the hearing officer outlined the above facts and
made the following conclusions:
The hearing officer determined that (1) Petitioner was able to perform his job duties in
June 2013, (2) Petitioner's symptoms were not significantly worse in November 2013 than they
4 The Medical Board mistakenly refers to Petitioner's primary care physician as "Dr. Rice" but correctly quotes Dr. Strickland's notes from his July 17, 2013 appointment with Petitioner. (R. 4.216, 11.3.) 5 The Medical Board misspells Dr. Houston's last name as "Huston." (R. 54.13 .)
9 were in June 2013, and (3) Petitioner therefore was able to perform his job duties as of his last
date of service in November 2013. Specifically, the hearing officer wrote,
Although I am sympathetic to [Petitioner's] willingness to work through such pain and discomfort that may have felled a lesser man ... the fact remained he performed his employment duties. The burden is upon [Petitioner] to prove by a preponderance of the evidence that due to his cancer he had functional limitations that made it impossible to perform the essential duties of his job. He has not done so.
The symptoms he had in June, 2013 when he still performed his job duties were not significantly worse in November, 2013 and although Dr. Polkinghorn stated that it would be "difficult" for [Petitioner] to work, the fact remained that [Petitioner] overcame those difficulties and worked until his removal for umelated conduct issues.
(R. 54.17 (emphasis in original).) The hearing officer concluded that Petitioner did not meet his
burden of proving "that on his last date of service, November 13, 2013 he had functional
limitations that made it impossible to perform the essential functions of his job" (R. 54.17 .) The
hearing officer did not reach the issue of whether Petitioner's condition was expected to be
permanent.
With regard to Petitioner's claim on the bases of anxiety and severe depression, the
hearing officer found that Petitioner "did not meet the required factors that would support a
major depressive disorder or an anxiety disorder." (R. 54.17.) The hearing officer added,
"[d]espite some counseling and medication to treat [Petitioner's] anxiety and depression, the
criteria have not been spelled out by his various practitioners. All of the providers link his
depression and anxiety to his cancer diagnosis and treatment." (R. 54.17.) The hearing officer
concluded that Petitioner had not met his burden of proving "that the medical evidence
established the existence of anxiety and/or depression as of November 13, 2013." (R. 54.17.) The
hearing officer did not reach the issues of whether Petitioner's alleged anxiety and severe
10 depression made it impossible for Petitioner to do his job or whether they were expected to be
II. STAND ARD OF REVIEW
The court's review of an action for administrative appeal is "deferential and limited."
Watts v. Bd. ofEnvtl. Prof., 2014 ME 91, ,r 5, 97 A.3 d 115 (quoting Friends ofLincoln Lakes v.
Bd. of Envtl. Prof., 2010 ME 18, ,r 12, 989 A.2d 1128). The court reviews administrative
decisions for "abuse of discretion, errors of law, or findings not supported by substantial
evidence in the record." Wyman v. Town ofPhippsburg, 2009 ME 77, ,r 8, 976 A.2d 985 (quoting
Griswold v. Town of Denmark, 2007 ME 93, ,r 9, 927 A.2d 410). To prevail, the challenging
party must prove that "no competent evidence" supports the agency's decision. Seider v. Bd. of
Examiners ofPsychologists, 2000 ME 206, ,r 9, 762 A.2d 551 (citing Bischoffv. Bd. ofTrustees,
661 A.2d 167, 170 (Me. 1995)). "Inconsistent evidence will not render an agency decision
unsupported." Id.
Ill.DISCUSSION
In order to qualify for a disability retirement benefit, Petitioner was required to prove that
"while in service," he had mental or physical incapacity that was "expected to be permanent" and
that made it "impossible to perform the duties of [his] employment position." 5 M.R.S. §§
17921(1), 17924(1)(A)-(B) (2013); Jalbert v. Me. Pub. Emples. Ret. Sys~, 2017 ME 69, ,r 11, _
A.3d
Petitioner argues that his medical records "provide[] clear and unequivocal evidence that
[he] was unable to work in any capacity" on his last date of service. (Pet'r's Br. 14.) Petitioner
cites medical records showing that from March 2013 to February 2014 he reported "problems
with constant diarrhea, breathing, bowels, ability to move, nervous system, vision and heart," as
11 well as "incapacitating nausea, vomiting, abdominal pain, joint pain and swelling, hot flashes,
and loss of appetite," and that on a scale from one to ten, he consistently reported a pain level of
around six or seven. (Pet'r's Br. 11.)
Petitioner also emphasizes the difficulty of his job as a bridge maintenance manager,
calling it "stressful, complex, time consuming, and physically demanding." (Pet'r's Br. 15-16.)
He contends that his "[f]requent diarrhea, stomach aches and nausea would disrupt work days,"
cause him to make frequent stops while on the road, and cause "overwhelming disruption to his
work duties and responsibilities" at inspection sites. (Pet'r's Br. 16.) Petitioner states that the
record is "replete ... with [his] frequent loss of memory and concentration," which he describes
as "a problem in technical field work, and office work as well," adding that such loss of
concentration "would also be extremely detrimental to his physical inspection of bridges as it
could lead to an oversight on a bridge that needs immediate repair." (Pet'r's Br. 16.) Petitioner
further states that the record "has ... amply demonstrated [his] loss of appetite, weight loss, and
resulting loss of strength and increasing fatigue and malaise," and contends that "lack of strength
would pose a serious issue in the field." (Pet'r's Br. 16.) He adds that his headaches "would ...
exacerbate the distractions caused by his anxiety and physical limitations," and he that "he would
be unable to take the medications necessary to dull his pain as [the medications] would affect his
ability to drive." (Pet'r's Br. 16.)
In response, MainePERS reiterates the findings of the Medical Board and the hearing
officer and points to record evidence not included in the Decision, including the following:
Although Dr. Polkinghorn wrote in February 2014 that "due to illness"
Petitioner could not have worked prior to June 26, 2013, he testified at
12 deposition that he did not recall that Petitioner had been working, apparently
without difficulty, prior to June 26, 2013. 6 (Resp.'s Br. 10 (citing R. 25.39).)
Dr. Polkinghorn also testified that his February 2014 opinion was based not on
objective tests but rather on Petitioner's own reporting, and that it would have
been "virtually impossible" for someone with the symptoms Petitioner reported
to "be fully active and perform a job." (Resp.'s Br. 10 (citing R. 25.39-41).)
Although Dr. Polkinghorn testified that Petitioner's diarrhea was solely related
to his tumor, another physician who saw Petitioner, Robert P. Dohner, D.O.,
"believed the diarrhea was related to anxiety and not from the carcinoid
tumors." 7 (Resp.'s Br. 11 (citing R. 20.432).)
Petitioner was treated for headache in 2010, 2011, and 2012, and "there is no
evidence linking [Petitioner's] headaches to condition of carcinoid tumor,"
noting that Petitioner was treated for headaches in 2010, 2011, and 2012.
(Resp.'s Br. 11 (citing R. 4.24, 34; 20.109).)
In addition to there being "no medical evidence to corroborate" the existence of
Petitioner's alleged "flushing," "hot flashes, "sweating," or "chest pain and
respiratory system attacks," let alone the severity or duration of these
6 Dr. Polkinghorn testified at his May 2014 deposition that he could not recall whether he knew in February 2014 that Petitioner had worked until June 26 2013. (R. 25.38-39.) 7 Dr. Dohner saw Petitioner on September 3, 2013, and stated in his notes under "HISTORY OF PRESENT ILLNESS" that Petitioner "has had progression of his illness to include significant flushing and diarrhea" and that Petitioner "report[ed] exacerbations of anxiety that seem to fuel the frequency of loose stools." (R. 20.432.)
13 symptoms, Dr. Dohner found that they improved with Petitioner's monthly
Sandostatin treatments. 8 (Resp.'s Br. 12 (citing R. 20.433).)
Petitioner replies that "[a]rguing that one could work because one has worked would
preclude a favorable decision for any employee." (Pet'r's Reply Br. 2.) According to Petitioner,
"LtJhe conclusion that Lhej could not work in November, 2013 is amply supported in the medical
records." (Pet'r's Reply Br. 2 (citing R. 20.205-19).)
The Court agrees with MainePERS' reasoning that because Petitioner was able to do his
job despite his cancer symptoms until he was placed on leave for misconduct in June 2013,
Petitioner had to prove that his symptoms worsened over the next four and a half months to the
extent that he could not possibly overcome them as he had before. Although there is evidence in
the record to support such a finding, there is also evidence to the contrary, including (1) the
opinion of the Medical Board,9 (2) the fact that the much of the evidence is based on Petitioner's
own reports of symptoms as opposed to objective examinations, and (3) Dr. Polkinghom's
September 9, 2013 report indicating Petitioner's blood tests were normal. The Board duly
weighed all of the evidence in the record and determined within its discretion that Petitioner
failed to meet his evidentiary burden.
"When an agency concludes that the party with the burden of proof failed to meet that
burden, we will reverse that determination only if the record compels a contrary conclusion to
the exclusion of any other inference." Kelley v. Me. Pub. Emps. Ret. Sys., 2009 ME 27, ~ 16, 967
8 On September 3, 2013, Dr. Dohner stated in his notes under "ASSESSMENT" that Petitioner "has had persistent and progressive symptomatology of diarrhea, anxiety, and flushing which has improved with Sandostatin .... Despite improvement, the patient still reports life-limiting symptoms of flushing and diarrhea which are exacerbated by anxiety." (R. 20.433.) 9 See Anderson v. Me. Pub. Emps. Ret. Sys., 2009 ME 134, ~ 28, 985 A.2d 501 (the presence in the record of a medical board report questioning applicant's evidence meant that the record did not compel a finding that applicant had met her burden of proof.)
14 A.2d 676 (quoting Hale-Rice v. Me. State Ret. Sys., 1997 ME 64, ,r 17, 691 A.2d 1232). Because
the record does not compel a contrary conclusion, the Court affirms the Board's Decision.
Anxiety and Severe Depression
Petitioner argues that the record evidence as a whole compelled the Board to find that his
he suffered from depression and severe anxiety as of November 13, 2013. Petitioner notes that
"[a]t the time of the hearing, he was taking Lorazepam and Temazepam for depression and
anxiety" and also that he "worked with Carol Maxwell at the Alfond Center for Cancer Care, and
he received referrals for specialist mental health care with Dr. Mitch Pulver, David H[o]uston,
Ph.D. and Allison Basile LCPC." (Pet'r's Br. 12 (citing R. 61; 20.81-83.) According to
Petitioner, "there is nothing in this record which contradicts the view of his treating providers
that [he] suffers from major mental health disorders that Dr. Houston, Ph.D. diagnosed as
generalized anxiety disorder and major depression." (Pet'r's Br. 12.)
MainePERS counters that the Medical Board found that Petitioner's providers "failed to
document symptoms consistent with anxiety or depressive disorder as outlined in the DSM-IV"
and that the hearing officer agreed with the Medical Board. According to MainePERS, "[o]n this
basis alone, [Petitioner] failed to meet his burden of proof." (Resp. 's Br. 13.) MainePERS goes
also cites record evidence suggesting that Petitioner's apparent anxiety and depression stemmed
directly from his carcinoid tumor. (Resp.'s Br. 13 (citing R. 4.185; 20.49, 73, 109; 25.16).)
MainePERS also argues that "[ e]ven if anxiety and depression were proven to exist as separate
diagnosable conditions, there is scant evidence to demonstrate functional limitations." (Resp. 's
Br. 14.) In addition, according to MainePERS, Petitioner's alleged inability to drive when taking
certain medications is deemed irrelevant by Petitioner's testimony that he abstained from those
medications when working in order to be able to drive. (Resp.'s Br. 14.) In a footnote,
15 MainePERS adds that Petitioner's "ability to work without medication is further evidence that it
was not impossible for him to do his job." (Resp.'s Br. 14, n.4.)
Although the record suggests that Petitioner did suffer from depression and anxiety, the
record as a whole does not compel a finding contrary to the Board's conclusion that Petitioner
failed to meet his burden of proof in that regard. In particular, the Medical Board's opinion and
the possibility that Petitioner's psychological symptoms stemmed from his cancer diagnosis are
sufficient to support the Board's finding. For this reason, the Court affirms the Board's Decision.
IV. CONCLUSION
In light of the foregoing, The Board's decision is AFFIRMED.
Date: May 10, 2017
£)~ Daniel I. Billings '- Justice, Maine Superior Court