Elizabeth T. Jalbert v. Maine Public Employees Retirement System

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 69
Docket: Ken-15-627
Argued: June 10, 2016
Decided: April 11, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, HJELM, and HUMPHREY, JJ.
Dissent: JABAR, J.

ELIZABETH T. JALBERT

v.

MAINE PUBLIC EMPLOYEES RETIREMENT SYSTEM

HJELM, J.

[¶1] Elizabeth T. Jalbert appeals from a judgment entered in the

Superior Court (Kennebec County, Marden, J.) affirming the decision of the

Maine Public Employees Retirement System (MPERS) Board of Trustees (the

Board) to adopt the hearing officer’s recommended decision denying Jalbert’s

application for disability retirement benefits. Because the record does not

compel the conclusion that Jalbert has a mental or physical incapacity that “is

expected to be permanent” and makes it “impossible to perform the duties of

[her] employment position,” 5 M.R.S. § 17921(1)(A)-(B) (2016), we affirm.
2

I. BACKGROUND

[¶2] 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. See Anderson v. Me. Pub. Emps. Ret.

Sys., 2009 ME 134, ¶ 5, 985 A.2d 501.

[¶3] Jalbert was employed as a teacher at Regional School Unit No. 1 for

twenty-four years, beginning in 1989. In 2004, Jalbert applied to MPERS for

disability retirement benefits, claiming that she suffered from bipolar

disorder. Although Jalbert had received a positive employment evaluation

that year, she alleged that her mental health condition adversely affected her

ability to teach. In 2005, Jalbert withdrew her application for disability

retirement benefits and continued teaching effectively despite her ongoing

mental health conditions.

[¶4] In January 2012, Jalbert slipped on ice and fell twice, nine days

apart, hitting her head each time. Jalbert was examined at an emergency

room after each fall, and the physicians noted only minor head injuries. After

the falls, however, Jalbert reported to several treatment providers that she

was struggling with speech and concentration, and that her depression and

anxiety had worsened. She was absent from work for most of the remaining
 3

school year. In February 2012, Jalbert was examined by a neurologist who

diagnosed her with post-concussion syndrome exacerbated by her

pre-existing anxiety and depression, and he recommended that she see a

speech therapist.

[¶5] Jalbert returned to work in September 2012 with modified duties.

Around that same time, Jalbert underwent formal neuropsychological testing,

which revealed strengths in intellectual ability, problem solving, short term

memory, and language skills, but weaknesses in some aspects of attention and

concentration. In November 2012, Jalbert’s primary care physician provided

her with a note excusing her from work based on her claim that she did not

feel competent at her job. While on leave, Jalbert continued to see her

primary care physician, neurologist, neuropsychologist, speech therapist, and

mental health providers; and she received treatment for tinnitus, dizziness,

and vision problems. Her official last date in service was April 10, 2013.

[¶6] In February 2013, Jalbert filed an application for disability

retirement benefits with MPERS based on her diagnosed post-concussion

syndrome, anxiety, and depression.1 See 5 M.R.S. § 17925(1) (2013).2 The

1 Jalbert also alleged in her application that she suffered from diabetes, hypertension, and
asthma. The Board ultimately denied benefits based on those conditions. Jalbert does not
challenge that aspect of the Board’s decision on appeal.
4

Executive Director’s designee obtained extensive medical records from

Jalbert’s treatment providers. Those materials were then reviewed by a

medical board comprised of eight physicians, see id.; 5 M.R.S. § 17106(3)(D)

(2016), which issued two reports in June 2013 analyzing the effect of Jalbert’s

alleged health conditions on her ability to teach: the first report analyzed

post-concussion syndrome, and the second report analyzed anxiety and

depression. The Executive Director’s designee ultimately denied Jalbert’s

application, see 5 M.R.S. §§ 17921(1), 17924(1) (2016), and Jalbert appealed

to the Board, see 5 M.R.S. § 17451 (2016).

[¶7] A hearing was held before a hearing officer in February 2014 and

the evidence was finally closed in April 2014. Because Jalbert chose to follow

an “unrestricted appeal process,” see 12 C.M.R. 94 411 702-2 § 6(2) (2014),

the evidence presented to the hearing officer went beyond the voluminous

medical records and June 2013 medical board reports already considered by

the Executive Director’s designee, and included testimony from Jalbert, her

daughter, and one of her colleagues; transcribed testimony of Jalbert’s

neurologist; and additional medical records and responses to requests for

information from six of Jalbert’s treatment providers.

2 Title 5 M.R.S. § 17925(1) has since been amended, though the amendments are not relevant in

the present case. See P.L. 2015, ch. 392, § 1 (effective July 29, 2016) (codified at 5 M.R.S. § 17925(1)
(2016)).
 5

[¶8] After the close of all the evidence, the hearing officer returned

Jalbert’s appeal to the Executive Director for a reconsidered decision. See

12 C.M.R. 94 411 702-2 § 6(2)(B). The Executive Director consulted with the

medical board, see id., which issued two additional reports in May 2014

stating its opinion that the cumulative evidence failed to establish the

existence of significant functional limitations related to post-concussion

syndrome, anxiety, or depression. A Deputy Executive Director then issued a

reconsidered decision affirming the earlier decision of the Executive

Director’s designee to deny Jalbert’s application for benefits and returned the

matter to the hearing officer. See 12 C.M.R. 94 411 702-5 § 15(1) (2014).

[¶9] In the summer and fall of 2014, the parties filed post-hearing

briefs with the hearing officer and commented on the hearing officer’s draft

decision. After responding to the parties’ comments, in October 2014, the

hearing officer issued a recommended final decision, see 5 M.R.S. § 17106-A

(2016), which was supported by extensive findings of fact and concluded that

Jalbert had not satisfied her burden of proving that her conditions made it

“impossible to perform the duties of [her] employment position,” id.

§ 17921(1)(B). The hearing officer’s decision was based on the following key

findings: medical records and other evidence contemporaneous with Jalbert’s
6

head injuries indicated that when she fell, the impacts were mild; objective

testing showed that Jalbert’s mental functions were only minimally impaired;

Jalbert’s decline in functional capacity was inconsistent with her diagnosis of

post-concussion syndrome and was not sufficiently explained by her doctors;

and Jalbert’s current alleged impairments closely resembled those alleged in

her 2004 application for benefits.

[¶10] The Board concluded that the hearing officer’s decision was

“supported by the record as a whole” and adopted it in full. See id.

§ 17106-A(1). Jalbert filed a complaint for review of the Board’s decision in

the Superior Court, see 5 M.R.S. §§ 11001-11007 (2016); M.R. Civ. P. 80C,

which affirmed the Board’s decision. This appeal followed.

II. DISCUSSION

[¶11] Jalbert argues that the Board erred by concluding that she did not

qualify for disability retirement benefits. To qualify for the benefits, Jalbert

was required to prove that she has a mental or physical incapacity that (1) “is

expected to be permanent,” and (2) makes it “impossible to perform the duties

of [her] employment position.”3 5 M.R.S. §§ 17921(1), 17924(1). In

3 We are unpersuaded by Jalbert’s argument that the Board erroneously failed to consider the

combined effect of her physical and emotional conditions in determining whether she was disabled.
The Board expressly acknowledged that Jalbert’s application was based on “post-concussive
syndrome and comorbid anxiety and depression,” but ultimately denied her request for benefits.
 7

particular, she contends that the evidence compelled the Board to grant her

application for benefits and that the Board placed improper weight on the

medical board’s reports.

[¶12] When the Superior Court acts in its appellate capacity pursuant

to M.R. Civ. P. 80C, we review the decision of the fact-finding agency directly.

See Rossignol v. Me. Pub. Emps. Ret. Sys., 2016 ME 115, ¶ 6, 144 A.3d 1175. “As

the fact-finder, the Board has the authority to determine the weight to be

given to the evidence, and we will not substitute our judgment for the

Board’s.” Id. (citing 5 M.R.S. § 11007(3)). Additionally, because Jalbert had

the burden of proof before the agency, “we will vacate the Board’s

determination that [s]he failed to meet that burden only if the record compels

a contrary conclusion to the exclusion of any other inference.” Id. (quotation

marks omitted).

[¶13] Contrary to Jalbert’s contention, the record does not compel the

conclusion that she met her burden of proving that she qualifies for benefits

pursuant to sections 17921(1) and 17924(1). As the Board concluded in its

(Emphasis added.) This characterization of Jalbert’s argument demonstrates that the Board
considered the combined effect of her conditions. See Hale-Rice v. Me. State Ret. Sys., 1997 ME 64,
¶¶ 10-11, 691 A.2d 1232.

Additionally, Jalbert’s arguments in support of her assertion that the proceedings were tainted
by bias are insufficient to overcome the presumption that the agency fact-finders acted in good
faith. See Rossignol v. Me. Pub. Emps. Ret. Sys., 2016 ME 115, ¶ 4 n.3, 144 A.3d 1175.
8

final decision, the hearing officer’s findings are supported by competent

evidence in the record, including reports from Jalbert’s emergency room visits

in January 2012 describing her head injuries as “mild” and “minor,” and

stating that the second fall did not result in any loss of consciousness; a

neuropsychologist’s report from September 2012 stating that Jalbert was

“performing quite well on a wide range of cognitive measures,” although she

had some difficulty with concentration; reports from Jalbert’s neurologist

stating that she was “doing better over time,” that she had done “quite well

overall” in a cognitive assessment but lost points for fluency, and that he

expected that Jalbert would fully recover and return to work; and a “speech

therapy discharge summary” issued in February 2013 stating that Jalbert had

“met her goals,” that her communication skills were “within functional limits

with no evidence of word finding deficits or dysfluency,” and that she was “in

a position to do what is required by her daily life.” Given this evidence, the

Board was not compelled to determine that Jalbert met her burden of

demonstrating eligibility for disability retirement benefits.

[¶14] Jalbert goes on to challenge the opinions reached by the medical

board. In the portion of the hearing officer’s decision that explicitly analyzed

whether Jalbert had satisfied her burden of proving a disability, the hearing
 9

officer cited to significant evidence from Jalbert’s own physicians but made

only a brief reference to the medical board’s May 2014 report concerning

post-concussion syndrome, which the hearing officer pointed out was

partially corroborated by one of Jalbert’s physicians.4 Title 5 M.R.S.

§ 17106(4) (2016) governs the use of “medical evidence” and provides that

“[t]he retirement system shall consider . . . the medical board’s analysis in

making a disability retirement determination.” Id. § 17106(4)(A); see also id.

§ 17106(4)(B) (acknowledging that the medical board may provide “medical

evidence” in disability retirement benefit proceedings). Jalbert did not object

to the hearing officer’s consideration of the medical board’s May 2014

opinions as evidence, although she had an opportunity to do so both in her

post-hearing brief filed with the hearing officer in June 2014 and in her

September 2014 comments on the hearing officer’s draft decision.5 Therefore,

4 In a separate section of the decision, the hearing officer comprehensively described the reports

submitted by the medical board in June 2013 and May 2014. Aside from the brief reference to the
medical board’s discussion about post-concussion syndrome noted in the text, however, the hearing
officer did not adopt the medical board’s opinions and assessments of the evidence as his own.

5 Although the hearing officer did not reference the medical board’s June 2013 reports in his

discussion, we note that those reports were admitted in evidence without objection from either
party.

Additionally, the hearing officer’s draft decision specifically stated, “The Medical Board’s
memoranda are properly considered to be evidence that can call into question the validity of the
Appellant’s expert medical evidence on any particular issue.” (Emphasis added.) In her comments
on the decision before it became final, Jalbert did not challenge this statement despite having the
opportunity to do so.
10

although Jalbert argues that the Board erred in not rejecting the substance of

the medical board’s opinion, to the extent that Jalbert’s argument is that the

Board erred in considering the reports at all, the hearing officer and the Board

did not err by doing so—and in fact they were required to take the medical

board’s analysis into account when making the disability retirement

determination.6 See id. § 17106(4)(A); see also Anderson, 2009 ME 134, ¶¶ 26,

6 Before 2009, section 17106 did not contain the current provisions governing the use of
“medical evidence” in disability retirement proceedings, and the statute therefore did not require
MPERS to consider the medical board’s analysis when determining whether an applicant was
disabled. See 5 M.R.S. § 17106 (2008). In a decision that applied that earlier formulation of the
statute, we held that the medical board’s memoranda do not rise to the level of “prefiled testimony”
that triggers the applicant’s statutory right to cross-examine the medical board’s members. See
Kelley v. Me. Pub. Emps. Ret. Sys., 2009 ME 27, ¶ 25, 967 A.2d 676 (discussing the statute governing
“prefil[ed] testimony,” 5 M.R.S. § 9057(4) (2008), which has remained the same since Kelley was
decided). In a separate decision that also applied the earlier version of section 17106, see Anderson
v. Me. Pub. Emps. Ret. Sys., 2009 ME 134, ¶ 28, 985 A.2d 501, we held that information in a medical
board’s report is part of the administrative record and may even be sufficient to defeat a disability
retirement application. The Legislature subsequently amended section 17106 to add the
provisions, noted in the text, that describe the medical board’s analyses as “medical evidence” and
require MPERS to consider those analyses when making disability retirement determinations. See
P.L. 2009, ch. 322 § 6 (effective Sept. 12, 2009) (codified at 5 M.R.S. § 17106(4) (2016)). The
amendment, however, also added language stating, “The medical board is advisory only to the
retirement system.” Id. That language is consistent with other statutory language that was in effect
when we decided Kelley and Anderson, describing the medical board’s duties in terms such as
“recommend,” “assist,” “inform,” and “advise.” Id.

As we have noted above, see supra n.5, Jalbert did not challenge the inclusion of the medical
board reports as evidence in the administrative record. Further, she did not attempt to call the
medical board’s members as witnesses or argue that she was entitled to cross-examine them.
Additionally, she did not argue at the administrative level, and does not argue on appeal, that the
reports—which are now statutorily treated as “medical evidence”—are “prefiled testimony” within
the meaning of section 9057(4). Indeed, Jalbert affirmatively acknowledges in her brief that the
Board was “allowed to consider” the medical board’s reports when determining her eligibility for
benefits, and challenges only the weight assigned to them. Because Jalbert has framed her
argument in this way, we do not reach any question of whether medical board reports and
memoranda are properly included in the record in the first place as evidence pursuant to section
17106(4) when an applicant is not given an opportunity to cross-examine the board’s members. Cf.
Antler’s Inn & Rest., LLC v. Dep’t of Pub. Safety, 2012 ME 143, ¶ 9, 60 A.3d 1248 (“[A]n argument,
 11

28, 985 A.2d 501 (stating that the Board may consider reports of the medical

board “as part of the record”).

[¶15] Beyond this, we are not persuaded by Jalbert’s explicit challenge,

which is to the weight that might be assigned to the medical board’s reports.

“[H]earing officers may accept, reject or determine the amount of weight to be

given any information offered into evidence, including, but not limited to,

medical evidence submitted by any of the parties to the appeal.” 5 M.R.S.

§ 17106-A(3); see also id. § 17106(4)(B) (“Explicit or implicit preferential

weight may not be afforded any medical evidence or source of evidence,

whether provided by the retirement system, its medical board or contracted

examiners, or by any member . . . .”). Here, the Board’s decision to deny

Jalbert’s application for benefits was based on an assessment of the evidence

that does not reflect legal error.

[¶16] Although the record contains evidence that could support a

finding that Jalbert is disabled within the meaning of section 17921(1), the

record, when considered as a whole, does not compel that determination.

Accordingly, the Board did not err by denying Jalbert’s application for

disability retirement benefits.

even one of constitutional dimension, that is not raised before an administrative agency may not be
raised for the first time on appeal.”).
12

The entry is:

Judgment affirmed.

JABAR, J., dissenting.

[¶17] I respectfully dissent because I believe the record compels a

contrary conclusion. The evidence presented before the hearing officer does

not support his decision in this case, and therefore I would vacate.

[¶18] The hearing officer was required to determine whether the

medical evidence supported Jalbert’s application for disability retirement

benefits. See 5 M.R.S. § 17106-A (2016). This undertaking is highly

dependent upon the testimony of expert witnesses, and we have held that it is

the province of the fact-finder, in this instance the hearing officer, to

determine what weight is to be given to this testimony. See Handrahan v.

Malenko, 2011 ME 15, ¶ 14, 12 A.3d 79 (“A court is not required to believe the

testimony of any particular witness, expert or otherwise, even when the

witness’s testimony is uncontradicted.”) (citations omitted) (quotation marks

omitted)). However, “uncontradicted testimony is not to be utterly

disregarded and arbitrarily ignored without reason.” Thompson v. Johnson,

270 A.2d 879, 881 (Me. 1970) (quotation marks omitted). When reviewing
 13

administrative actions, we defer to the agency’s factual findings, but we do not

act as a rubber stamp. See Imagineering, Inc. v. Superintendent of Ins., 593 A.2d

1050, 1053 (Me. 1991). To the contrary, we serve an appellate function, and

when the evidence does not support the agency’s decision we are obligated to

vacate; otherwise we should simply eliminate appellate review of agency

actions. See id; 5 M.R.S. §§ 11001, 11008 (2016); Merrill v. Me. Pub. Emps. Ret.

Sys., 2014 ME 100, ¶ 13, 98 A.3d 211.

[¶19] The record shows that the hearing officer “disregarded and

arbitrarily ignored” overwhelming and uncontradicted medical expert

testimony. The hearing officer, acting as a fact-finder, was free to disregard

evidence presented by Jalbert. However, where numerous medical experts

unanimously concurred that she is disabled and suffers functional limitations

on account of that disability, and the System did not present any expert

testimony to refute this evidence,7 disregarding these opinions was arbitrary.

[¶20] Specifically, Jalbert presented the testimony of her primary care

physician, a neurologist, an ophthalmologist, and several psychologists, all of

whom opined that she was disabled and that the functional limitations

7 The medical board has the authority to request that a claimant undergo a medical evaluation.

See 5 M.R.S. § 17106(3)(B) (2016). The MPERS Executive Director also has the authority to request
medical examinations. See 5 M.R.S. §§ 17921(1)(D), 17926 (2016). MPERS therefore had
numerous opportunities to obtain and introduce independent expert testimony regarding Jalbert’s
medical condition.
14

associated with her disability made it impossible for her to work as an

elementary school teacher.

I. JALBERT’S EVIDENCE

[¶21] Jalbert was employed as a teacher at Dike-Newall Elementary

School in Bath for twenty-four years. She received numerous positive

evaluations and enjoyed an excellent reputation among staff and parents. In

October 2004, she applied for disability retirement benefits for bipolar

disorder, depression, and anxiety. In March 2005, she withdrew that

application and continued teaching. After resuming her teaching duties, she

treated with psychiatrist Lawrence Fischman, M.D., for her depression and

anxiety.

[¶22] In late January and early February 2012, Jalbert sustained head

injuries after suffering two falls within a short period of time. As a result of

these injuries, she took medical leave, was out of work for the remainder of

the 2011-12 school year, and received workers’ compensation benefits for

post-concussion syndrome. Upon her return to teaching that summer, she

worked a modified, “light-duty” schedule aimed at accommodating her needs

in light of her injuries. Her return was short-lived, however, after school

officials determined at the beginning of the 2012-13 school year that this
 15

modified arrangement was not feasible. On February 21, 2013, Jalbert again

applied for disability retirement benefits. Because she had not yet attained

the age of sixty, she could only receive retirement benefits by establishing the

existence of a disability and functional limitations. See 5 M.R.S. § 17904

(2016).

[¶23] As part of her application for benefits, Jalbert submitted

numerous records from her treating physicians, along with deposition

testimony from Dr. John Taylor. Jalbert and a co-worker also testified before

the hearing officer. The numerous medical records and deposition testimony

contain five separate medical opinions unanimously agreeing that Jalbert has

permanent functional limitations making her return to the classroom

impossible.

[¶24] Carl Demars, M.D., was Jalbert’s primary care physician and

treated her for the injuries she sustained in the falls. He opined that Jalbert

exhibited functional limitations and that she was unable “to return to her

prior occupation as a teacher due to her concussion.” Dr. Demars also

referred her to Dr. Taylor for a neurological assessment.

[¶25] John Taylor, D.O., a neurologist, treated Jalbert for eighteen

months, and opined that it was “impossible [for] her to perform [her] duties
16

as a school teacher.” He reiterated this opinion in a letter dated January 24,

2014, and in his deposition testimony. He indicated that she had problems

with cognition and “other features associated with post-concussive

syndrome.” He added that symptoms related to Jalbert’s pre-existing

diagnoses of premorbid anxiety and depression have “also been exacerbated

and add to her overall functional disability.”

[¶26] Philip Morse, Ph.D., a neuropsychologist, also examined and

treated Jalbert. He saw her on four separate occasions and conducted

numerous tests on her. He opined that it was “impossible for her to perform

her duties as a school teacher,” and that in his “neuropsychological opinion it

is more likely than not that her incapacity is permanent.”

[¶27] David Lilly, Psy.D., a psychologist, examined Jalbert upon a

referral from Maureen Halmo, Ph.D., Jalbert’s treating psychologist. Dr. Lilly

treated Jalbert for her anxiety and problems adapting to her functional

limitations and deficits outlined in Dr. Morse’s neuropsychological evaluation.

His findings were consistent with Dr. Morse’s description of her impairment

on attentional tasks. Dr. Lilly concurred with Dr. Morse and the other

providers regarding the existence of her disability and the functional

limitations associated with it.
 17

[¶28] Colin Robinson, O.D., an ophthalmologist, treated Jalbert for

vision and balance issues that she experienced as a result of her head injuries.

He opined that the two conditions he diagnosed her with—post-trauma vision

syndrome and visual midline shift syndrome—made it impossible for her to

perform her duties as a school teacher, and that it is more likely than not that

her disability is permanent.

[¶29] All of the professionals listed above concluded that Jalbert was

not able to return to the classroom. These opinions were based on Jalbert’s

subjective complaints, her physical examinations, and objective tests

performed by her doctors over the course of her treatment. These opinions

also reveal that her cognitive, speech, vision, and psychological problems were

interrelated and contributed to her disability. The only evidence produced to

refute these opinions were reports submitted by the medical board, which

contained a number of conclusions that were not supported by the evidence.

II. MEDICAL BOARD REPORTS

[¶30] The medical board reports relied upon by the hearing officer here

consist of a report dated June 20, 2013, and one dated May 22, 2014. The

2013 report was part of Joint Exhibit 1 and was entered in evidence without

objection. The 2014 report, however, was produced after the hearing and was
18

never offered in evidence but was provided to the hearing officer.

Notwithstanding this anomaly, which allowed the hearing officer to consider

the 2014 report even though it was produced after the close of evidence, for

the purposes of this dissent, I agree with the Court that the 2014 report may

also be considered as evidence on appeal.8

[¶31] The 2013 and 2014 medical board reports consist of fewer than

ten pages altogether. The reports cherry-pick and selectively scrutinize

individual medical record entries while making conclusions unsupported by

the evidence. For instance, the 2013 report acknowledged the existence of

Jalbert’s post-concussive syndrome diagnosis, but took issue with the

purported absence from the record of an explanation as to why her condition

8 Citing Kelley v. Me. Pub. Emps. Ret. Sys., 2009 ME 27, 967 A.2d 684, and Anderson v. Me. Pub.

Emps. Ret. Sys., 2009 ME 134, 985 A.2d 501, the hearing officer concluded that he could consider the
medical board reports as evidence. Neither Kelley nor Anderson held that these reports were
evidence; rather, they narrowly decided that under the statute then in effect, the hearing officer
could consider the reports, as advised, without the right of the applicant to cross-examine their
authors. Anderson, 2009 ME 134, ¶ 26, 985 A.2d 501; Kelley, 2009 ME 27, ¶ 25, 967 A.2d 684.

I believe that the plain language of 5 M.R.S. § 17106(4) (2016) as amended, which became
effective after we decided Anderson and Kelley, specifically provides that the medical board’s
reports are evidence. The Legislature amended this section by adding a provision that designates
the medical board’s analysis as “evidence.” See P.L. 2009, ch. 322 § 6 (effective Sept. 12, 2009)
(codified at 5 M.R.S. § 17106(4) (2016)). Following the amendment’s clear designation of the
medical board reports as evidence, these reports may now be subject to cross-examination to
comply with the mandates of the Maine Administrative Procedures Act. See 5 M.R.S. § 9057(3), (5)
(2016). Because our holdings in Anderson and Kelley did not interpret the current, amended
statute, we should clarify at this time that, because the amended statute provides that the reports
are to be considered evidence, the reports may be subject to cross-examination as required by the
Maine Administrative Procedures Act. See id. In this case, Jalbert did not request the opportunity to
cross-exam any members of the medical board.
 19

had not improved. This line of inquiry is flawed. The proper focus should be

on whether she was suffering from a disability causing functional limitations,

and not whether there existed some explanation as to why her condition had

not yet improved. See 5 M.R.S. § 17901 (2016).

[¶32] Similarly, the 2013 report acknowledged that Jalbert suffered

from anxiety and depression. The board noted, however, that “[t]he records

document that there are no functional limitations from anxiety and

depression that would impair work function as of April 10, 2013.” Again,

without any explanation, the report concluded that, notwithstanding the

opinions offered by Jalbert’s medical providers—including that of Dr. Taylor

which noted that her pre-existing anxiety and depression “exacerbated and

add to her overall functional disability”—she didn’t have any functional

limitations stemming from these diagnoses. Also without explanation, the

report indicated that “[t]here is evidence in the records to suggest that

psychiatric issues and secondary gain could be significant contributing factors

to the member’s ultimate work separation.”

[¶33] The hearing officer’s reliance on the medical board’s conclusions

regarding Jalbert’s motive for secondary gain was undoubtedly prejudicial.

The Court states that the hearing officer “did not reference the medical
20

board’s June 2013 reports.” Court’s Opinion ¶ 14 n.4. I disagree. There is a

direct connection between the board’s findings regarding secondary gain and

the hearing officer’s decision. The hearing officer referenced and relied on

these prejudicial conclusions, noting in his decision:

In light of this information, the Medical Board’s conclusion was
that the records did not show clearly that [Jalbert] had any
persistent disabling symptoms that could be directly ascribed to
the post-concussive syndrome. On this basis, the Medical Board
did not find functional limitations based on post-concussive
syndrome. The Medical Board stated further that it found evidence
in the records suggesting that psychiatric issues and secondary gain
could have contributed significantly to [Jalbert’s] ultimate work
separation.

(Emphasis added).

[¶34] The medical board’s assertion regarding Jalbert’s alleged motive

for secondary gain was not supported by any medical evidence in the record.

To the contrary, the only medical evidence in the record that addressed these

issues was presented by Jalbert. Dr. Morse, Jalbert’s treating psychologist,

noted that after conducting neuropsychological testing, Jalbert “performed

well, indicating no evidence of suboptimal effort, symptom magnification or

potential malingering.” Dr. Lilly agreed with Dr. Morse’s assessment in this

regard, noting that he had no concerns with Jalbert’s efforts during testing and

treatment. Even the hearing officer found in his decision that the
 21

“neuropsychological testing of [Jalbert] found no evidence of suboptimal effort

or malingering.” Because there was no evidence of secondary gain on the

record, the hearing officer’s reference to secondary gain in his decision, which

was based on the medical board’s reports, was unsupported by the evidence.

[¶35] A claim of secondary gain has a profound impact on any

fact-finder and necessarily affects the fact-finder’s determination of credibility

on any issue. See Deirdre M. Smith, Who Says You’re Disabled? The Role of

Medical Evidence in the ADA Definition of Disability, 82 Tul. L. Rev. 1, 45 (2007)

(“Thus, it appears that the ‘malingerer problem’—that is, the prospect of the

existence of some individuals who may falsely claim to be disabled for

secondary gain—has long colored the entire category of ‘the disabled’ as a

group of individuals with automatically suspect credibility.”).

[¶36] The hearing officer also improperly relied on the 2014 reports

when he adopted the board’s opinions that discredited the testimony of

Jalbert and a co-worker, even though the medical board did not hear the

testimony of these witnesses. In the 2014 report, the medical board wrote

that, despite Jalbert’s subjective complaints and corroborating history from a

close friend, the board did “not believe that this represents unbiased,
22

objective information regarding her difficulties.” Referencing this statement

from the medical board report, the hearing officer stated in his decision:

In its evaluation of the evidence, the Medical Board specifically
critiqued the adequacy of the foundation for the opinions of
Dr. Morse and Dr. DeMars in the complaints of [Jalbert] rendered
to them by her and her friend . . . and rejected those opinions on
the basis of subjectivity and bias.

[¶37] The board’s conclusions discrediting Jalbert’s witnesses is an

improper credibility determination made by a body that neither observed nor

heard this testimony. Again, there is a direct connection between the medical

board’s reports and the hearing officer’s findings, and again the board’s

assertions were not supported by the evidence.

[¶38] Another assertion contained in the 2014 medical board report

completely discredits the opinion of Dr. Robinson, an ophthalmologist. After

evaluating Jalbert, Dr. Robinson made two diagnoses—post-trauma vision

syndrome and visual midline shift syndrome—and opined that these

diagnoses “would make it impossible [for] her to perform her duties as a

school teacher.” In its 2014 report, the medical board critiqued Dr. Robinson’s

diagnoses, opining that
 23

it is the understanding of the Medical Board that these purported
conditions are neither scientifically validated nor generally
accepted as definable medical diagnoses by the ophthalmologic
community at large.

[¶39] There is absolutely no evidence in the record to support this

conclusion. Furthermore, there is no ophthalmologist on the medical board.

Although the hearing officer discussed Dr. Robinson’s diagnoses and opinions

in his decision, he did not address Dr. Robinson’s opinion that these diagnoses

and the functional limitations resulting therefrom, standing alone, make it

impossible for her to continue teaching. The Court’s opinion also does not

address this issue, or explain how Dr. Robinson’s unrefuted opinion does not

support Jalbert’s claims for disability retirement benefits.

III. CONCLUSION

[¶40] In conclusion, it is fundamentally unfair for an applicant for

disability retirement benefits to have her medical evidence refuted by the

unsupported assertions and conclusions contained in medical board reports.

[¶41] In this case, as a part of an adjudicatory hearing held pursuant to

the Maine Administrative Procedures Act, the System did not present any

medical expert witness opinions to refute the numerous medical opinions

presented by Jalbert. Selectively scrutinizing and cherry-picking individual

entries in voluminous medical records and making unsupported conclusions
24

should not overcome the unrefuted medical opinions of five experts who

treated Jalbert for years. Despite a clear unanimity among Jalbert’s treating

physicians, who all opined that she was unable to return to a classroom of

young children and fulfill her duties as a teacher, the hearing officer relied on

a few pages of reports submitted by a medical board that neither examined

nor treated Jalbert.

[¶42] Thus, I believe that the evidence presented here compels a

contrary conclusion to that reached by the hearing officer, and therefore I

would vacate.

Gerard P. Conley, Jr., Esq. (orally), Cloutier, Conley & Duffett, P.A., Portland, for
appellant Elizabeth T. Jalbert

Janet T. Mills, Attorney General, Christopher L. Mann, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee Maine Public Employees
Retirement System

Kennebec County Superior Court docket number AP-2015-14
FOR CLERK REFERENCE ONLY