MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision:    2016 ME 91
Docket:      Ken-15-395
Submitted
  On Briefs: May 26, 2016
Decided:     June 14, 2016

Panel:       SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.



                                  SARA J.T. BEHR

                                          v.

              MAINE PUBLIC EMPLOYEES RETIREMENT SYSTEM


PER CURIAM

         [¶1] Sara J.T. Behr appeals from a judgment entered by the Superior Court

(Kennebec County, Murphy, J.) affirming the decision of the Maine Public

Employees Retirement System (MPERS) Board of Trustees (the Board). The

Board had affirmed the decision of the executive director’s designee, who had

denied Behr’s application for disability retirement benefits.       See 5 M.R.S.

§§ 17451(1), 17925(4) (2015). Because the record does not compel a finding that

Behr met her burden to prove that “it is impossible to perform the duties of [her]

employment position,” 5 M.R.S. § 17921(1)(B) (2015), we affirm.

         [¶2] In December 2012, Behr filed an application for disability retirement

benefits, see 5 M.R.S. § 17925 (2015), alleging that she was unable to perform her

job as a policy development specialist for the Maine Department of Transportation.
2

Behr asserted that she was disabled due to Lyme disease, mononucleosis,

fibromyalgia, chronic fatigue syndrome, post-traumatic stress disorder, depression,

anxiety, and insomnia. On appeal, Behr only challenges the denial of benefits as to

her fibromyalgia.

      [¶3] We review directly the Board’s decision. Kelley v. Me. Pub. Emps.

Ret. Sys., 2009 ME 27, ¶ 16, 967 A.2d 676. We will reverse a Board finding that a

party failed to meet his or her burden of proof “only if the record compels a

contrary conclusion to the exclusion of any other inference.” Id. Contrary to

Behr’s contentions, the record does not compel a finding that Behr met her burden

to prove that her fibromyalgia caused functional limitations that made it impossible

for her to do her job.

      [¶4] The Board adopted the Hearing Officer’s recommended final decision,

which found that there were “significant inconsistencies and voids in the evidence

of medically-based functional limitations,” especially given MPERS’s evidence

about Behr’s behavior at work. See 5 M.R.S. § 17106(4)(C) (2015) (contemplating

that the Board will determine what weight to give the evidence); 5 M.R.S.

§ 17106-A(3) (2015) (permitting hearing officers to accept, reject, or determine the

weight to be given any evidence). For example, Behr’s supervisor testified that he

observed that Behr’s mood would change depending on whether she was

interacting socially with coworkers or focusing on her work.
                                                                                 3

      [¶5] In addition, the Board found that Behr’s evidence regarding her alleged

functional limitations was less persuasive than the medical board’s reports,

see 5 M.R.S. § 17106(3)(D) (2015), which the Board properly considered as

evidence, see Kelley, 2009 ME 27, ¶ 25, 967 A.2d 676. Here, the medical board

twice reviewed the entire record and opined that the medical records contained no

objective medical evidence of any functional limitations caused by Behr’s

fibromyalgia. In its second report, the medical board noted that Behr’s significant

efforts in pursuing her appeal to the Board demonstrated her capacity for sedentary

work. Because the medical board’s reports are a proper part of the evidentiary

record, the record does not compel a contrary finding. See Anderson v. Me. Pub.

Emps. Ret. Sys., 2009 ME 134, ¶ 28, 985 A.2d 501 (holding that the record did not

compel a finding that the employee had proved that her condition would be

permanent when the medical board had written a report “questioning [the

employee’s] evidence of permanency”).

      [¶6] Behr’s remaining arguments on appeal do not warrant discussion.

      The entry is:

                      Judgment affirmed.
4


On the briefs:

        Sara J.T. Behr, appellant pro se

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



Kennebec County Superior Court docket number AP-2014-74
FOR CLERK REFERENCE ONLY
