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Rodriques v. Maine State Retirement
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 1997 ME 56
Docket: KEN-96-437
Argued February 6, 1997
Decided April 1, 1997

Panel:  ROBERTS, GLASSMAN, RUDMAN, and LIPEZ, JJ.  

ROBERT M. RODRIQUES

v.

MAINE STATE RETIREMENT SYSTEM

GLASSMAN, J.
  
	[¶1]  Robert Rodriques appeals from the judgment entered in the
Superior Court (Kennebec County, Calkins, J.) affirming the decision of the
Board of Trustees of the Maine State Retirement System to discontinue his
disability retirement benefits.  Because we agree with Rodriques that the
Board erred by failing to afford him a sufficient medical evaluation of his
disability, including conditions related to the right knee injury for which he
was originally deemed disabled, we vacate the judgment.  
	[¶2]  Rodriques, aged 62, retired from his employment as a prison
guard at the Maine State Prison in 1981 following a determination that a
work-related injury to his right knee rendered him permanently disabled
and entitled him to full disability benefits.  He has an eleventh grade
education and his prior work experience was in the construction industry. 
Continuing difficulties with his knee required a series of surgical procedures
and the eventual fusion of the knee at a five degree angle.  Through the past
number of years, Rodriques has attempted to return to work at numerous
part-time positions but has been unsuccessful because of his injuries.  His
required annual report of earnings filed with the Maine State Retirement
System disclosed that from 1981 through 1994 he earned $710.38 in 1984,
$6411.91 in 1985, $9731 in 1986, $2905.25 in 1987, and $391.07 in
1993, and is presently unemployed.  
	[¶3]  In 1994, the executive director of the Maine State Retirement
System conducted a periodic review of Rodriques' disability pursuant to 5
M.R.S.A. § 17929(2)(B) (Supp. 1996).{1}  This included the consideration of a
report of Richard Greenberg, an orthopedic surgeon, the sole examiner of
Rodriques for the purposes of the review.  Greenberg's report directed to
"Dana R. Nowell, Retirement Claims Specialist, Maine State Retirement
System" began with the statement: "At your request, I evaluated Robert
Rodriques . . . .  The examination was for purposes of determining the
continued retirement for reason of disability of his right knee." Although the
report notes, "He is also developing some painful changes in his left knee",
it also states, "Pertinent physical findings are restricted to his right lower
extremity."  
	[¶4] The physical findings reported by Greenberg are summarized as
follows: Rodriques has a 2-1/4 inch difference in length between the right
and left legs; no motion in the knee, which is fused; a stiff-legged gait with
the knee flexed about five degrees.  He cannot squat or move his right knee. 
Current symptoms are pain when he is on his leg all day with swelling
around the knee area, pain on prolonged walking, but he can do a lot of
activities around his house, including household chores, mowing the lawn
for short periods, driving short distances and walking for only very short
periods.  The report sets forth the following diagnosis: "This man has long
since reached an end result.  He has been retired since 1981 and, by virtue
of this disability, still remains 100% disabled from doing his regular job.  No
further treatments or interventions are available which would improve the
patient's condition."  
	[¶5] Based in part on Greenberg's finding that Rodriques could
perform household tasks, the executive director, acting on the
recommendation of the Medical Board, notified Rodriques that his benefits
were going to be discontinued.  Pursuant to 5 M.R.S.A. § 17451 (1989),
Rodriques appealed to the Retirement System Board of Trustees, and the
matter was assigned to a hearing officer.  Rodriques and his wife appeared
and offered the only testimony presented at the hearing.  The hearing
officer recommended that the executive director's decision be affirmed. 
The Board subsequently adopted the recommendation of the hearing officer. 
In making this evaluation, the Board refused to consider the condition of
Rodriques' left knee, stating that "there is no evidence demonstrating the
precise nature of the left knee problem or that this condition was directly
caused by the right knee condition.  Therefore this condition is not relevant
in determining whether Appellant is disabled."  The Board concluded that
Rodriques could engage in "substantially gainful activity" pursuant to 5
M.R.S.A. § 17929(2)(B)(1) and was therefore no longer entitled to disability
benefits.  
	[¶6] Pursuant to 5 M.R.S.A. § 11001 et seq. (1989) and M.R. Civ. P.
80C, Rodriques filed a complaint in the Superior Court seeking a review of
the Board's decision.  Following a hearing, the court affirmed the Board's
decision.  From the judgment entered accordingly, Rodriques appeals.  
	[¶7] Rodriques contends that the Board abused its discretion by failing
to consider in its evaluation that the pain in his left knee and back, of which
he advised Greenberg, is connected to his right knee disability and any
deficiency in competent medical evidence to support this connection
results from Greenberg's refusal to examine these related conditions.  He
argues, as he did before the Board, that these conditions are caused directly
by his original right knee disability, are permanent, and render him unable
to engage in any substantially gainful activity consistent with his training,
education and experience.  
	[¶8] When, as here, the Superior Court acts as an intermediate
appellate court, we examine the administrative record directly for an abuse
of discretion, error of law or findings unsupported by substantial evidence in
the record.  H.E. Sargent Inc. v. Town of Wells, 676 A.2d 920, 923 (Me.
1996).  
	[¶9] Title 5 M.R.S.A. § 17929(2)(B)(1) states:
 
After the disability has continued for 2 years, the disability must
render the person unable to engage in any substantially gainful
activity that is consistent with the persons's training, education
or experience and average final compensation adjusted [for cost
of living increases]. . . .  

Chapter 507 of the rules adopted by the Board to clarify and enforce, inter
alia, section 17929(2)(B)(1) provides, in part:
 
A person shall be determined to be unable to engage in any
substantially gainful activity if the person lacks the physical or
mental capacity, due to the incapacity for which the person was
awarded disability retirement benefits, to perform or participate
in any activity or activities, tasks or efforts that are or could be
performed in such a manner as to generate remuneration in an
amount which is consistent with average final compensation.  

Me.S.Retirement Systems Rules Ch. 507 (Sept. 28, 1993).  
	[¶10] The Board in its brief concedes that Bischoff v. Board of
Trustees, 661 A.2d 167, 169-70 (Me. 1995), makes clear that if a
connection is established, a recipient of disability retirement benefits can
continue to receive benefits on the basis of a limitation that arises from a
condition related to the condition for which he was found to be
incapacitated.  It contends, however, that Rodriques has not satisfied his
burden to establish the connection.  
	[¶11] Pursuant to 5 M.R.S.A. § 17929(2)(B), "[t]he executive director
may require, once each year, that the [claimant] undergo examinations or
tests, conducted in accordance with section 17926 . . . ." Section 17926
states in pertinent part: 

1.  Agreed upon physician.  The examinations or tests shall be
conducted by a qualified physician . . . mutually agreed upon by
the executive director and the member claiming to be disabled.  

2.   Agreed upon place.  The examinations or tests shall be
conducted at a place mutually agreed upon by the executive
director and the member claiming to be disabled.  

5 M.R.S.A. § 17926.  The statute entitles Rodriques to an independent,
objective medical examination of his disability.  In the context of a
reevaluation, the examination necessarily must include an inquiry into
related conditions, such as Rodriques' left knee and back ailments that
logically could be related to his original disability.  It is apparent from
Greenberg's report that he had been instructed to confine his examination
to Rodriques' right lower extremity.  To the extent that Greenberg failed to
explore the left knee and back problems that Rodriques claims are
connected to and caused by his original disability, the examination was
insufficient for the purposes of section 17926.  The Board erred by
requiring that Rodriques introduce medical evidence connecting his left
knee and back conditions to his fused right knee without first providing him
with the complete, objective medical examination contemplated by section
17926.  Accordingly, we conclude that a new medical examination is
required pursuant to section 17926 for the purposes of the reevaluation of
Rodriques' continued eligibility for disability retirement benefits.  
	The entry is: 
Judgment vacated.  Remanded to the Superior
Court with instructions to remand to the Board
of Trustees of the Maine State Retirement
System for proceedings consistent with the
opinion herein. 
                                                                                                                                 

Attorney for plaintiff:

Anthony A. Trask, Esq. (orally)
Verrill & Dana
P O Box 957
Augusta, ME 04332-0957

Attorneys for defendant:

Andrew Ketterer, Attorney General
H. Cabanne Howard, Asst. Atty. Gen. (orally)
6 State House Station
Augusta. ME 04333-0006