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Richardson v. State Retirement System
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision:1998 ME 171
Docket:And-98-46
Argued:	June 9, 1998
Decided:	July 10, 1998


Panel:WATHEN, C.J., and ROBERTS, RUDMAN, DANA, and SAUFLEY, JJ.

NORMAN RICHARDSON

		v.

BOARD OF TRUSTEES OF THE
MAINE STATE RETIREMENT SYSTEM

WATHEN, C.J.


	[¶1]  Plaintiff Norman Richardson appeals from the judgment of the
Superior Court (Androscoggin County, Perkins, A.R.J.) affirming the decision
of the Board of Trustees of the Maine State Retirement System (the Board)
denying his claim for disability retirement benefits.  On appeal, Richardson
contends that the Board erroneously interpreted and applied 5 M.R.S.A. §
18524(2) (Supp. 1997).  Finding no error, we affirm the judgment.
	[¶2]  The facts underlying Richardson's claim for disability benefits
can be summarized as follows:   Richardson worked for the City of Lewiston
from 1980 until 1995.  Because he withdrew from the Maine State
Retirement System (MSRS) in 1982 and rejoined it in 1993, the parties
agree that he has fewer than five years of continuous creditable service. In
1992, while employed as a "Highway Worker II," Richardson suffered a back
injury that resulted in a nine month leave from work. He returned to work
in 1993 and was placed on permanent light duty.  He was restricted from
lifting anything over 20 pounds and from any repetitive or prolonged
twisting or bending.  He was still on restricted duty in April 1995 when he
participated in Lewiston's "Clean-Up Week" -- a time when highway
workers pick up items of trash that would not be picked up as part of the
routine collection process.
	[¶3] Conflicting testimony was offered at the Board hearing. 
Richardson testified that he told his foreman that he was unable to work on
the clean-up crew due to his work restrictions, but that the foreman told
him to "try it." The foreman testified that he assigned Richardson the task
of driving a truck during the spring clean-up and, as he was aware of
Richardson's medical restrictions, he never asked him to work beyond
those restrictions.  In any event, Richardson participated in the clean-up,
bending down repeatedly to pick up trash.  After two days, he left the job
due to an increase in back and neck pain as well as numbness in his knees
and legs.  Although Richardson returned to work briefly, he soon filed for
disability retirement benefits.  His application was denied by both the MSRS
and the Board.  The Board decision was affirmed by the Superior Court and
Richardson now appeals. 
	[¶4]  When, as here, the Superior Court acts as an intermediate
appellate court, we review the decision of the Board directly for errors of
law, abuse of discretion or findings of fact unsupported by competent and
substantial evidence in the record. Carr v. Board of Trustees of Maine State
Retirement Sys., 643 A.2d 372, 374 (Me. 1994).  Here, as the party seeking
to overturn the agency decision, Richardson is required to demonstrate that
no competent evidence supports the Board's decision and that the record
compels a contrary result.   Bischoff v. Board of Trustees, 661 A.2d 167, 170
(Me. 1995).
	[¶5] Employees with five years of continuous creditable service in the
MSRS qualify for disability benefits if they are "disabled while in service." 5
M.R.S.A. § 18524(1) (Supp. 1997).{1} Disability benefits for employees with
less than five years of continuous creditable service, however, are limited as
follows:

A member with fewer than 5 years of continuous creditable
service immediately preceding that member's application for a
disability retirement benefit is not eligible for that benefit if the
disability is the result of a physical or mental condition which
existed before the member's membership in the retirement
system, unless the disability is a result of, or has been
substantially aggravated by, an injury or accident received in the
line of duty but from events or circumstances not usually
encountered within the scope of the member's employment.

5 M.R.S.A. § 18524(2) (Supp. 1997) (emphasis added).
	[¶6]  The Board first concluded that: 

the loading of trash onto a truck is an activity which is normally
within the scope of Mr. Richardson's employment, and if he
aggravated a pre-existing condition doing so, that aggravation
therefore cannot generally be considered to have occurred
because of events or circumstances not usually encountered in
his job.  

In effect, the Board ignored the particular work restrictions that applied to
Richardson and compared his activities to highway workers in general.  In
this regard, the Board erred.  The scope of the member's employment
requires an individualized determination.  Alternatively, however, the Board
ruled that, even if the scope of Richardson's employment was limited by his
work restrictions, he failed to prove that he was ordered to engage in
activity not usually encountered within the scope of that employment. 
Implicit in the Board's ruling is the factual conclusion that an employee's
voluntary deviation from work restrictions is not an unusual event or
circumstance.  The Board did not err as a matter of law in applying the
statute.
	The entry is:
					Judgment affirmed.
                                                                          
Attorney for plaintiff:

Susan P. Herman, Esq., (orally)
Rosemary Foster, Esq.
Clifford, Stone & Herman
P O Box 590
Lewiston, ME 04243-0590

Attorneys for defendant:

Andrew Ketterer, Attorney General
William H. Laubenstein, III, Asst. Atty. Gen., (orally)
Stanley W. Piecuch, Asst. Atty. Gen.
6 State House Station
Augusta, ME 04333-0006