Trattner v. Maine Public Employees Retirement System

• Court: Superior Court of Maine
• Decided: January 7, 2016
• Docket: CUMap-14-59
• Status: Unpublished

Opinion

STATE OF MAINE STAT E OF MAINE SUPERIOR COURT CUMBERLAND, ss ...: umber\and . ss , Clerk's Office CIVIL ACTION Docket No. AP-14-59 ./ JAN O7 2016 DANA TRATTNER, RECEIVED Petitioner ORDER ON PETITIONER'S v. RULE 80C APPEAL

MAINE PUBLIC EMPLOYEES RETIREMENT SYSTEM,

Respondent

Before the court is petitioner Dana Trattner's Rule 80C appeal challenging respondent

Maine Public Employees Retirement System's denial of her application for disability retirement

benefits and the subsequent denial of her appeal to the Board of Trustees (Board). For the

following reasons, the court reverses respondent's denial of petitioner's application.

I. FACTS

Petitioner has worked as an educator in Maine for approximately 17 years. Around 1993,

she began working as an adult education teacher and life skills coach at Creative Work Systems.

(Rule 80C record at 21.3) (hereinafter "R. _ .") From 2002 to 2004, she worked as an Ed Tech in

the Scarborough School Department, and in 2004, she began working as a Library Ed Tech III at

Wentworth Intermediate School. (R. 21.3.) As a Library Ed Tech III, her job duties included

checking books in and out, notifying students and teachers regarding reserved books, teaching

students research skills, repairing, shelving, and ordering books, monitoring students' behavior,

and maintaining and operating library computers. (R. 21.3.)

In 2009, the staff was reduced from three Library Ed Techs to two . (R. 21.3.) The job

duties of the Library Ed Tech who was eliminated were split between the remaining Library Ed

1 Techs, one of whom was petitioner. (R. 10.13 .) As a result, petitioner's workload increased and

she allegedly was not provided with support to meet this additional demand. (R. 10.13-10.14.)

Petitioner has had issues with her hearing and vision for a number of years. (R. 21.3 .) She

had corneal transplants in 1982 and 1983. (R. 21.3.) Sometime after 2000, she was diagnosed

with moderate to severe bilateral sensorineural hearing loss and began using hearing aids. (R.

21.3.) In 2007 or 2008, she was diagnosed with age-related macular degeneration. (R. 21.3.)

Petitioner has been treated by audiologists Abagail Forcier and Marty Layne, as well as

ophthalmologists Frederick Miller and Scott Steidl. (R. 21.5-21.6, 3 .446.)

Petitioner asserts that, as a result of these issues, she cannot operate video equipment or

digital cameras, shelve books, read books to students, or hear safety announcements related to

lockdown and fire drills, among other duties. (R. 10.122-10.133 .) In the spring of 2012,

petitioner informed the Scarborough School Department of these issues and requested

accommodations. (R. 21.4.) The school department provided her with a bell tone to help her get

the students' attention, a magnifying glass to read bar codes on books, a keyboard with black-on-

yellow large print keycaps, and "zoom technology" for her computer. (R. 21.4, 3.470 .)

In January 2012, the school principal, Anne-Mayre Dexter, met with petitioner to discuss

several work performance issues. (R. 21.4.) These issues included chronic tardiness, problems

with organization, and difficulty following ,lesson plans completely. (R. 21.3, 3.12-3.13.)

Petitioner's tardiness improved after she began commuting with a coworker, but the other issues

continued. (R. 21.4.) Ms. Dexter and petitioner met again in March 2012 to devise an "action

plan" to address the remaining issues. (R. 3 .13.) They continued to meet regularly, but Ms.

Dexter did not see improvement in petitioner' s job performance. (R. 3.13.) Petitioner asserts that

2 her performance issues were related to her vision and hearing losses, however Ms . Dexter asserts

the action plan was not related to these issues. (R. 3.14, 10.147-10.149.)

On October 9, 2012, petitioner applied_to respondent for disability retirement benefits on

the basis of an anxiety disorder, age-related macular degeneration, corneal transplants, hearing

loss, and scarring on the pons of the brain. (R. 3.7-3 .9.) She resigned on October 11 , 2012. (R.

21.4.) On February 7, 2013, a board of physicians acting as an advisor to respondent (Medical

Board) issued four memoranda stating that the evidence petitioner submitted did not establish:

(1) the existence of the anxiety disorder or (2) "functional limitations" associated with her

macular degeneration, corneal transplants, hearing loss, and scarring on the pons of the brain. (R.

3.485-92.) On February 12, 2013, respondent denied her application, finding, as had the Medical

Board, that the evidence petitioner submitted did not establish: (1) the existence of the anxiety

disorder or (2) "functional limitations" associated with the other conditions. (R. 1.1.)

On February 19, 2013, petitioner appealed to the Board. (R. 2.1.) A hearing before a

Hearing Officer occurred on July 10, 2013. (R. 10.2.) On February 4, 2014, the Hearing Officer

issued her final recommended decision affirming respondent's denial. (R. 21.1-21. 7.) On August

12, 2014, the Board adopted the Hearing Officer's recommended decision. (R. 27.2.) Petitioner

appealed to this court on December 12, 2014. A hearing on petitioner's appeal was held on

November 30, 2015.

II. DISCUSSION

A. Standard of Review

To qualify for disability retirement benefits , an applicant bears the burden of proof to

demonstrate by a preponderance of the evidence that "the applicant has a mental or physical

incapacity that: (1) is expected to be permanent, and (2) makes it impossible to perform the

3 duties of the applicant's employment position." Anderson v. Me. Pub. Emps. Ret. Sys., 2009 ME

134, ~ 4, 985 A.2d 501 ; 5 M.R.S. § 17921(1)(A)-(B) (2014); Douglas v. Ed. ofTrs., 669 A.2d

177, 179 (Me . 1996). "When an agency concludes that the party with the burden of proof failed

to meet that burden, [the court] 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 A.2d 676 (citation omitted). The reviewing court may not "substitute its

judgment for that of the agency on questions of fact" and may only affirm the decision, remand

for further proceedings, or reverse or modify on the basis of constitutional or statutory violations,

unlawful procedure, bias, errors of law, findings unsupported by substantial evidence, or

arbitrary and capricious decisions. 5 M.R.S. § 11007(3)-(4) (2014).

B. Rule 80C Appeal

Petitioner argues: (1) the Medical Board committed an error of law when it considered an

interview of the school principal, Ms. Dexter, because that document is not a medical record and

(2) the Board 's decision is unsupported by substantial evidence because it failed to consider the

combined effects of petitioner' s hearing and vision losses and ignored persuasive evidence from

Drs. Steidl and Layne.

1. Error of Law

The Board did not commit an error of law when it considered Ms . Dexter's interview,

even though the interview is not a medical record. The Medical Board must " [p]rovide a written

report of its analysis of how the applicant's medical records do or do not demonstrate the

existence of physical or mental functional limitations entitling an applicant to benefits ... ." 5

M.R.S . § 17106(3)(D) (20 14). In making this written report, however, that statute directs the

Medical Board to review "the file, " which encompasses more than the applicant' s medical

4 records. 5 M.R.S . § 17106(3) (2014); see Kelley, 2009 ME 27, ~ 11, 967 A.2d 676 (medical

board issued memorandum based in part on transcript of doctor's testimony before hearing

officer). In other words, the statute directs the Medical Board to analyze the applicant's medical

records in its report but does not restrict the materials the Medical Board considers in making

this analysis, as long as those materials are included in the file. Without the ability to evaluate

and compare an applicant's medical condition with her job description and performance, it is

difficult to see how the Medical Board could accurately assess an applicant's ability to perform

her job. As a result, the Board did not commit an error of law when it considered the interview.

2. Substantial Evidence

Petitioner concedes that she has not met her statutory burden regarding the anxiety

disorder and scarring on the pons of the brain. (Br. of Pet. 2.) The remaining issue is whether

substantial evidence exists to support the Board's conclusion that petitioner failed to establish by

a preponderance of the evidence that her vision and hearing losses was permanent and that these

losses made it impossible for her to perform her job duties.

a. Combined Effects

The court finds that the Board did consider the combined effects of petitioner's hearing

and vision loss. In Hale-Rice v. Me . State Ret. Sys. , the Law Court recognized that an individual

may be disabled due to "incapacities resulting from the combined effects of physical and

emotional problems, given the reality that the interrelationship of such problems often results in

a permanent inability to work." 1997 ME 64, ~ 10, 691 A.2d 1232. In that case, the court found

that the Board had considered combined effects when it noted the effect of the petitioner's injury

on her self-esteem and depression. Id. ~ 11. Similarly, the Hearing Officer in this case considered

the combined effects when she stated "While the combination of vision problems and hearing

5 problems clearly made her job difficult, impossibility is not the same as difficulty, it is a much

higher standard." (R. 21.6.) However, as discussed below, the Board's conclusion that petitioner

failed to meet her burden is not supported by substantial evidence.

b. Vision and Hearing Losses

Petitioner's medical records show that she suffers from significant vision loss . Dr. Miller

asserts that petitioner's macular degeneration and bilateral corneal transplants are "slowly

progressive and cause greater blurring of sight needed for librarian occupation." (R. 3.299.)

Following an appointment in January 2012, Dr. Steidl concluded that petitioner suffers from

legal blindness. (R. 6.6.) He further concluded that, as of October 2012, petitioner did not have

central visual function. (R. 6.7.) Dr. Steidl explains that:

The problem with loss of central vision is that a person cannot read a line of print or a series of words because the center portion would always be missing; this makes it extremely difficult to do any reading with any speed and requires people to pick apart pieces of words and put them together in their mind, which is a very slow process.

(R. 6.7.) His opinion as to the permanency of her condition and the impact of her condition on

her job duties is as follows :

In my medical opinion, her visual acuity is likely to continue to deteriorate and will be highly unlikely to improve at any point due to the chronic degenerative nature of the macular degeneration and her compounding myopic degeneration . .. Of the twenty-two described performance responsibilities ... seventeen of these seem relevant and detailed enough for comment. Of those, more than half, at least ten, would be nearly impossible for her to accomplish wit.Hout extensive accommodations for someone visually impaired, and even then might prove to be difficult to impossible to accomplish.

(R. 6.10.) Although not medical evidence, the court also notes that petitioner's coworker

observed that it was "very, very difficult" for petitioner to see the computer screen, that it was

impossible for petitioner to read printed lesson plans, and that petitioner was unable to see the

6 spine labels on books, and therefore unable to shelve books. (R. 10.18-10.19, 10.23.) At the

hearing, petitioner described her perception of the Hearing Officer and attorneys as follows:

I see your- I see your hair, I see that ear and I can kind of tell that you have glasses and I can see a little bit of a nose there but otherwise I cannot see whether you are looking at me or looking across the room or looking behind me . .. I only see one eye and if I'm looking at the eye I don't really see the nose. If I look to see both eyes, I'd have to look up at your skull or over to your ear . . . [I have] a hole in my vision.

(R. 10.108-10.109.)

Petitioner's medical records also show that she suffers from significant hearing loss. Dr.

Layne ' s opinion is that petitioner "will be affected in over 90% of her communication

situations." (R. 3 .193 .) Dr. Layne explains the testing she performed on petitioner as follows:

I repeated the controlled test in the sound room at a level of 40dB, attempting to recreate what she might encounter in a work situation with children' s voices. In this instance, her comprehension dropped to 28%, or the ability to recognize one in three words. A normal hearing adult will understand 90-100% of words in this instance. We can also assume that if there is background noise, such as announcements or competing conversation, these comprehension scores will drop even more drastically.

(R. 6.16.) With regard to permanency, Dr. Layne's opinion is that "The auditory system, once

damaged, cannot return to normal." (R. 6.16.) Although not medical evidence, the court also

notes that petitioner's coworker observed petitioner fail to respond to a lockdown drill

announcement over the loudspeaker. (R. 10.21-10.22.) As a result, petitioner continued her

lesson and did not lock the doors, pull down the shades, or take the children to a secure area, as

was the procedure. (R. 10.22 .)

This evidence compels the conclusion that petitioner is permanently unable to perform

her duties, especially after those duties were increased. It is difficult to see how petitioner could

perform her duties with a hole in her vision and the ability to hear approximately one in three

words. Petitioner's visual acuity is "highly unlikely to improve at any point" and her hearing

7 cannot be restored to normal. Indeed, the assistant superintendent of schools believed that "In the

end, [petitioner] was not able to do the job." (R. 7.3 .) On this record, substantial evidence does

not exist to support the Board' s conclusion that petitioner failed to establish by a preponderance

of the evidence that her vision and hearing losses were permanent and that these losses made it

impossible fo r her to perform her job duties.

III. CONCLUSION

The court hereby ORDERS that petitioner 's Rule 80C appeal is GRANTED and the

Board' s decision is REVERSED .

Pursuant to M.R. Civ. P. 79(a), the clerk is directed e this Order by reference

in the docket.

Dated ~ 1,0 It