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	
