Opinion
C.A. No. PC-2016-2817
08-09-2018
DAMON BORRELLI, Plaintiff, v. RETIREMENT BOARD OF EMPLOYEES' RETIREMENT SYSTEM OF RHODE ISLAND (ERSRI); SETH MAGAZINER in his capacity as Chairman; and FRANK J. KARPINSKI in his capacity as Executive Director, Defendants, and TOWN OF SOUTH KINGSTOWN, Intervenor.
ATTORNEYS: For Plaintiff: Michael J. Lepizzera Jr., Esq. For Defendant: Michael P. Robinson, Esq. (Defendants) Amy H. Goins, Esq.; Michael A. Ursillo, Esq. (Intervenor)
DECISION LANPHEAR , J. Before this Court is the appeal of Appellant Damon Borrelli (Appellant or Borrelli) from the May 11, 2016 decision of the Retirement Board (the Board) of the Municipal Employees' Retirement System of Rhode Island (ERSRI), which denied his application for an accidental disability pension. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
Borrelli is appealing from the decision of the Retirement Board of the Municipal Employees' Retirement System, but will use "the Board" and "ERSRI" throughout to refer to the agency due to the extant caption of this appeal.
I
Facts and Travel
A
Borrelli's Work History and Initial Application
Appellant is a veteran of Operation Desert Storm who was honorably discharged in 1992. (Ex. 15 at ERSRI00290.) Borrelli applied to and was accepted by the South Kingstown Police Department (SKPD) in 2002. (Ex. 10 at ERSRI0075-0076.) Prior to admission to the Municipal Police Academy, Borrelli submitted to a required independent medical examination in which the examiner found "[n]o medical contraindication to [Borrelli] performing this job without accommodation." (Ex. 8 at ERSRI0066.)
During his time as a police officer with the SKPD, Borrelli received "numerous commendations." (Ex. 65 at ERSRI00588, Hr'g Tr. 40:8, May 11, 2016.) In 2006, Borrelli led the department in arrests. Id. at 40:16-18, ERSRI00588. While working for the SKPD, Borrelli also attended Roger Williams Law School, completing his J.D. in June 2011. (Ex. 30 at ERSRI00397, Hr'g Tr. 34:24-35:5, Oct. 3, 2014.)
Prior to the subject incident, Borrelli had seen a number of counselors and mental health professionals infrequently, starting in the 1990s. (Report of Dr. Gallagher, Ex. 15 at ERSRI00295.) In October 2009, Borrelli saw Maryann Cascio, LISCW, RN for issues relating to his relationship with his girlfriend. Id. at ERSRI00296. Cascio referred him to Dr. James Gallo for treatment for ADHD in January 2010. Id.
On March 20, 2010, Borrelli was serving on duty as a plainclothes officer on an alcohol enforcement detail, in an unmarked car. At 1:30 A.M., Borrelli received a call from the dispatcher asking him to respond to a driver who may have been drinking. (Ex. 65 at ERSRI00589, Hr'g Tr. 41:13-24, May 11, 2016.) While responding to the call, Borrelli passed a car in a no-passing zone, after which the driver of the car sped up and started flashing his high beams, and screaming that he was going to "kill" Borrelli. Id.at 41:25-42:1-11. Borrelli pulled over to the side of the road to let the car pass and prepared to call in the car's license plate in order to have a marked cruiser respond, when the car "smashed" into him. Id. at 42:12-15; see also IME of Dr. Patel, Ex. 12 at ERSRI0094. Borrelli identified himself as a police officer and asked for the driver's license and registration. (Ex. 65 at ERSRI00589, Hr'g Tr. 42:17-19, May 11, 2016.) According to Borrelli, the driver continued to scream threats at him and then jumped him. Id. at 42:19-25. Borrelli reported that he was particularly anxious during the encounter because his gun was not in the usual secure holster that he wore when he was in uniform, and the suspect thus might be able to grab his gun. (IME of Dr. Patel, Ex. 12 at ERSRI0094.) Borrelli also reported that he saw his daughter's face near him during the attack. (FFDE of Dr. Gallagher, Ex. 15 at ERSRI00190; IME of Dr. Patel, Ex. 12 at ERSRI0094.)
Chief Vespia recounted the events to Dr. Gallo. Although secondhand, a detailed description of the events (including a swing to Borrelli's head) are contained in Dr. Gallagher's report (Ex. 15 at ERSRI00288).
On or around March 20, 2010, Borelli initiated an injured on duty (IOD) claim, reporting "bruising/pain in back, neck, right elbow and right knee" as a result of the assault. (Ex. 15.) On April 8, 2010, Borrelli sought treatment for his back pain from Dr. William S. Buonanno, an orthopedist, who diagnosed him with acute sprains of the thoracic and lumbosacral spine and muscle spasms. (Ex. 15 at ERSRI00146.) Dr. Buonanno referred Borelli for an MRI and spinal injections after his symptoms continued. Id. at ERSRI00152, 00157.
The events of March 20, 2010 are sometimes referred to as "the incident" or "the accident" in the record. For clarification, the events are referred to as "the Assault" herein.
Dr. Buonanno cleared Borrelli to return to work on a light duty schedule on March 30, 2011, and Borrelli was assigned to report for duty on April 4, 2011 (Treatment History of Dr. Buonanno, Ex. 15 at ERSRI00162.) On April 4, Borrelli called out sick from his first shift. (Report of Dr. Gallagher, Ex. 15 at ERSRI00287.) The same day, the Police Department received a fax from Dr. James Gallo, who reported that he had been treating Borrelli and that it was his opinion that Borrelli was experiencing PTSD. Id. Dr. Gallo recommended that Borrelli not return to work until May 9, 2011. Id.
On April 20, 2011, the SKPD referred Borrelli for a fitness for duty evaluation (FFDE) with Patricia L. Gallagher, Ph.D., a licensed psychologist. (Ex. 15 at ERSRI00184.) Dr. Gallagher conducted extensive interviews and a battery of psychological tests and filed her report with the SKPD on June 21, 2011. Id. at ERSRI00286. In her report, Dr. Gallagher concluded that Borrelli was not psychologically fit to perform the tasks of a police officer at the time of the evaluation and did not have the ability to handle the stress of a full service officer. Id. at ERSRI00299. Dr. Gallagher also concluded that while the "root cause" of Borelli's stresses and limitations did not arise from the Assault, the Assault "exacerbated" his underlying disability. Id.
Borrelli filed an application for accidental disability retirement with the Municipal Employee's Retirement System on September 29, 2011, alleging disabling back pain and PTSD as a result of the Assault. (Ex. 2 at ERSRI006-007). Pursuant to the requirements of R.I. Admin. Code 29-1-4:1.9, Borrelli submitted physician's statements from Dr. James Gallo and Dr. William Buonanno, medical records related to a prior cervical strain in May 2007, a disability statement from his employer, copies of all injury and accident reports from his tenure as a police officer, and records of his work history three years prior to and three years after the Assault. (Exs. 4-11.)
On appeal to this Court, Borrelli only raises claims of error related to his alleged PTSD injury disability. See Am. Compl. As such, the Court's analysis and review of the record will focus primarily on the evidence relevant to these claims.
Borrelli received Independent Medical Evaluations (IMEs) from Dr. Sandhya Patel, a psychiatrist; Dr. Stephen Saris, a neurosurgery specialist; and Dr. Alberto Savoretti, an internal medicine specialist, in December 2013. (Ex. 12 at ERSRI0092; Ex. 13 at ERSRI00106; Ex. 14 at ERSRI00132.) Dr. Patel concluded to a reasonable degree of certainty that Borrelli was disabled from PTSD, but the disability was not the result of the Assault, finding instead that Borrelli had "a history of multiple traumas prior to this accident that are most likely the cause of his PTSD," including a victimized childhood and his experiences as a Navy Seal in Operation Desert Storm. (Ex. 12 at ERSRI00100.) Dr. Patel also concluded that Borrelli had not reached maximum medical improvement ("MMI") with regard to his PTSD because he had "a history of resistance towards antidepressant medications," had not seen a therapist for the prior six months, and had not visited his psychiatrist in over three months. Id. at ERSRI00100-00101.
Dr. Saris concluded that to a reasonable degree of certainty, Borrelli was not disabled as a result of his back injury and had reached MMI. (Ex. 13 at ERSRI00113.) He opined that the patient had suffered a soft tissue injury that, "while very painful in the short term," had resolved by the summer of 2010. Id. Dr. Saris further stated that based on his assessment, Borrelli could have returned to work as a Police Officer "without restriction." Id.
Dr. Savoretti concluded in his IME that Borrelli was disabled as a result of the Assault and had reached MMI, but stated that his assessment was "with reservation." (Ex. 14 at ERSRI00131-00132.) In his assessment, Dr. Savoretti stated that based on his review of Borrelli's psychiatric records, his PTSD claim was "without merit given pre-existing condition[s] as well as the fac[t] that the incident of cause, a simple uncooperative subject resulting in a mild to moderate injury that would be commonplace for a police officer, being so mild as [to] not construe a traumatic event especially in light of his previous history." Id. at ERSRI00134. As evidence that Borrelli's PTSD condition was preexisting, Dr. Savoretti cited a reference to "PTSD and depression from [D]esert [S]torm" in a November 2010 evaluation of Borrelli by East Greenwich Spine and Sport. (Ex. 5 at ERSRI0048.) With regard to the back injury, Dr. Savoretti stated that based on the "subacute findings" of his exam and the onset of the symptoms, he "felt compelled" to grant a "back related disability pension" to Borrelli but that his "support and recommendation for this disability is the lowest that it could be in the affirmative." (Ex. 14 at ERSRI00135.)
B
The Disability Subcommittee's February 6, 2014 Recommendation and Appeal
The Disability Subcommittee of the ERSRI issued a recommendation on February 6, 2014. (Ex. 18.) In its Decision, the Subcommittee concluded that Borrelli was not mentally or physically incapacitated as a result of the Assault. Id. at ERSRI00348. In making its finding that Borrelli was not mentally disabled with PTSD as a result of the Assault, the Subcommittee relied on the IME reports of Dr. Patel and Dr. Savoretti. The Subcommittee concluded that "[w]hile the fact that Borrelli's mental health issues appear to date back many years is not necessarily dispositive," the evidence does not "support a claim that [the Assault] was a proximate cause of the disability." Id. The Board voted to accept the recommendation of the Disability Subcommittee on February 12, 2014, and notified Borrelli in a one page letter on May 15, 2014. Id. at ERSRI00343.
The Subcommittee also concluded that Borrelli was not disabled by his cited back injury, and cited the analysis of Dr. Saris in support of its finding. (Ex. 18 at ERSRI00349.) The Subcommittee noted that while Dr. Savoretti found Borrelli to be disabled as a result of his back injury, "his opinion was equivocal at best" and did not have "objective testing" supporting the claim. Id.
Pursuant to R.I. Admin. Code 10-00-1.9(F)(1), Borrelli appealed the decision of the Board on June 11, 2014 and requested a reconsideration hearing before the Disability Subcommittee. (Ex. 20.) On July 22, 2014, the Town submitted a request to participate in Borrelli's appeal, to which Borrelli assented. (Exs. 24, 25.)
Borrelli's second hearing before the Disability Subcommittee occurred on October 3, 2014. At the hearing, Attorney Gary Gentile, counsel for Borrelli, requested that the Board "engage two more doctors trained in the treatment and diagnosis of [PTSD] in order to get a full medical panel on that issue." (Ex. 30 at ERSRI00392, Hr'g Tr. 13:5-8, Oct. 3, 2014.) The Subcommittee issued its decision the day of the hearing. (Ex. 31 at ERSRI00411), with a cursory reference to the Assault. Id. at ERSRI00414. Basing its recommendation on the fact that Borrelli had not provided further evidence, the Subcommittee recommended that the Board deny Borrelli's application. Id. The Board voted to adopt the Subcommittee's recommendation and issued its second notice of denial on January 26, 2015. (Id. at ERSRI00411.)
On February 24, 2015, Borrelli appealed the Second Notice of Denial through counsel. (Letter from Gary Gentile to Frank Karpinski, Ex. 32 at ERSRI00421.) In his appeal of the Notice, Borrelli asserted that the decision of the Disability Subcommittee was based on "unlawful procedure, the failure to provide a medical panel qualified to diagnose and treat Post-Traumatic Stress Disorder, [and] improper standards employed by the medical panel," and further argued that the Subcommittee's recommendation was otherwise not in accordance with law. Id.
C
April 8, 2015 Hearing Before the Board
On March 16, 2015, the Retirement Board informed Borrelli that it would grant him a hearing before the full Retirement Board. (March 16, 2015 Letter from the Retirement Board to Gary Gentile, Ex. 35 at ERSRI00428.) Attorney Gentile represented Borrelli at the hearing on April 8, 2015, and submitted that the Subcommittee erred in appointing only one IME physician who was qualified to diagnose PTSD. (Ex. 36 at ERSRI00433, Hr'g Tr. 7:2, Apr. 8, 2015.) Gentile then requested that the application be remanded to the Subcommittee for two additional psychological evaluations. Id. at ERSRI00435, Hr'g Tr. 13:14-17. The Board agreed and Borrelli was officially assigned to receive two further IMEs on April 22, 2015. (Ex. 50 at ERSRI00499.)
D
Additional IMEs and Third Recommendation
Dr. John Ruggiano, a specialist in psychiatry, conducted an IME on Borrelli on July 2, 2015. On the IME form, Dr. Ruggiano checked "yes" to certify that Borrelli was incapacitated from the performance of service, but checked "no" in response to the question "[i]s the disability as a result of the reported accident sustained in the performance of the applicant's job," and wrote "see addendum" after the question regarding maximum medical improvement. Ex. 44 at ERSRI00477.) However, the addendum to Dr. Ruggiano's report notes "[t]here was not a specific injury providing a basis for the patient's current condition. Rather he is showing the result of cumulative factors of which the incident of 3/20/10 was the 'final blow.'" Id. at ERSRI00479. Dr. Ruggiano concluded that "from the vantage point of knowing the five year course since the injury of 3/20/10, a diagnosis of PTSD cannot be made." Id. at ERSRI00481. Instead, he concluded Borrelli exhibited a "formulation" called "confrontation with mortality." Id. Dr. Ruggiano also concluded that Borrelli was "showing good judgment" by not returning to work as a police officer, based on Borrelli's self-reports that his "level of force would go up too quickly" in on-duty conflicts. Id. at ERSRI00480.
Dr. Ronald Stewart, also a specialist in psychiatry, conducted the second of the two additional IMEs on Borrelli on June 17, 2015, submitting his report on July 23, 2015. (Ex. 45 at ERSRI00483-00484.) Dr. Stewart concluded that Borrelli was disabled as a result of the Assault, noting
"[e]ven though there was a history of [traumatic events] and exposure to disturbing military events prior to the [assault], he did not report any symptoms of PTSD nor receive treatment for such. He was functioning well as a police officer. He was able to graduate from U.R.I., obtain a Master's Degree, and was attending law school at the time of the [assault]." Id. at ERSRI00487.
However, Dr. Stewart also found that Borrelli had not reached maximum medical improvement, stating that it was necessary for Borrelli to "receive appropriate antidepressant medication and counseling in order for his symptoms of PTSD to improve." Id. at ERSRI00486.
Anait Azarian, Ph.D., Dr. James Gallo, and Susan Hamin, LMHC, three of Borrelli's treating clinicians, also submitted letters in support of his application. (Exs. 46-48.) All three clinicians iterated the conclusion that Borrelli developed PTSD as a result of the Assault, and was permanently disabled as a result of the Assault. Id. Dr. Azarian, who treated Borrelli from April 1, 2011 to December 21, 2011, noted that he was aware of Borrelli's "potentially traumatic experiences," but that it was "highly unlikely to conclude that any other traumatic events from his past are the cause of his disability." (Ex.46 at ERSRI00490; see also Treatment Notes of Dr. Azarian, Ex. 15 at ERSRI00220-00257.) Dr. Gallo similarly concluded that while it was "well-known" that Borrelli "had trauma in the past," the Assault "was not the cause," and stated that "recent events and evaluation of his disability alone have caused recurrent symptoms of agitation and poor sleep with nightmares and flashbacks." (Ex. 47 at ERSRI00492.) Susan Hamin, who had treated Borrelli since July 2014, opined that although Borrelli had "a history of events that may have been traumatic . . . he did not develop PTSD nor did he meet criteria for PTSD" before the Assault. (Ex. 48 at ERSRI00494.)
On September 4, 2015, the Disability Subcommittee issued its third decision on Borrelli's application for an accidental disability pension, again recommending that the Board deny his application. (Ex. 51 at ERSRI00507.) The Subcommittee again relied on Dr. Patel's finding that Borrelli "has a history of Post-Traumatic Stress Disorder symptoms dating back to many years prior to this accident," as well as Dr. Savoretti's finding that Borrelli's PTSD claim is "without merit" given the "pre-existing condition as well as the fact that the Assault of cause, a simple uncooperative subject resulting in a mild to moderate injury would be commonplace for a police officer." Id. at ERSRI00506. The Subcommittee also noted that Dr. Ruggiano "indicated that a diagnosis of PTSD could not be made." Id.
Additionally, the Subcommittee again found that Borrelli was not mentally or physically incapacitated by the Assault with regards to his back injury, citing the reports of Dr. Saris and Dr. Savoretti. (Ex. 51 at ERSRI00506.) The Subcommittee concluded its recommendation to the Board by noting that it "continues to have concerns" about Mr. Borrelli's testimony that his condition of PTSD prevents him from working based on limitations in his ability to focus, concentrate, multi-task and make judgment calls, in light of his testimony that he completed law school in 2011." Id. at ERSRI00507.
E
Second Appeal, Hearing Before the Subcommittee, and the Subcommittee's Final
Recommendation
On September 9, 2015, the Board voted to accept the Disability Subcommittee's recommendation and informed Borrelli of its denial of his application on November 17, 2015. Id. at ERSRI00501. Borrelli appealed this decision through counsel on December 21, 2015, alleging that the decision of the Subcommittee was "based on unlawful procedure, the reliance on the opinion of physician(s) not qualified to diagnose and treat Post-Traumatic Stress Disorder," and "improper standards employed by the medical panel," and further asserting that the decision was not in accordance with law. (Ex. 54 at ERSRI00524.)
A hearing before the Subcommittee occurred on February 5, 2016. (Ex. 57, Hr'g Tr., Feb. 5, 2016.) At the hearing, Attorney Gentile, again representing Borrelli, submitted that even if there was evidence that Borrelli's PTSD was a preexisting condition, that fact should not disqualify him under the accidental disability statute. Id. at 10:19-11:3, ERSRI00535. Gentile further submitted that Borrelli's preemployment psychological evaluation clearly indicated that if "Officer Borrelli was predisposed with evidence of trauma prior to his employment, it certainly was not of a nature that caused him not to pass the psychological exam," and that the record was void of any evidence that he missed work or was otherwise disabled due to PTSD prior to the Assault. Id. at 12:18-13:10, ERSRI00535-00536.
Attorney Gentile also noted that Dr. Stewart's report supported Borrelli's application, and sought to clarify Dr. Ruggiano's report, focusing in on the doctor's conclusion that Borrelli's disability was "the result of cumulative factors of which [the Assault] was the 'final blow.'" (Ex. 57, Hr'g Tr. 16, Feb. 5, 2016.) Gentile further submitted that Dr. Patel did not comment on whether Borelli's disability was the result of the Assault, focusing instead on whether the condition was preexisting. Id. at 17, ERSRI00537.
On February 5, 2016, the Subcommittee submitted its recommendation to the Board, again finding that Borrelli was not permanently disabled due to his back injury, and that Borrelli's "asserted PTSD disability" was not proximately caused by the Assault. (Ex. 58 at ERSRI00557.) In support of its conclusions, the Subcommittee relied upon Dr. Patel's decision as follows:
"Although Dr. Patel acknowledged Borrelli's denial of PTSD symptoms prior to the March 20, 2010 incident, her comprehensive report nevertheless detailed psychiatric issues and treatment prior to the incident, including for substance abuse and relationship issues. She also identified numerous instances of trauma occurring prior to the March 2010 incident. Despite the arguments of Borrelli's counsel, the Subcommittee credits Dr. Patel's findings that Borrelli's PTSD symptoms pre-dated the March 20, 2010 incident, and that his current condition is not the result of that incident. In this regard, the Subcommittee also continues to note the unexplained delay in Borrelli completing his law degree after beginning his studies in 2004, well prior to the March 2010 incident." Id.Clearly, the Subcommittee was concerned that Borrelli had "symptoms" prior to the assault. The Subcommittee again relied upon Dr. Savoretti's finding that Borrelli's claim of PTSD "'is without merit given pre-existing condition as well as the fact that the [assault] of cause, a simple uncooperative subject resulting in a mild to moderate injury would be commonplace for a police officer," and further noted that Dr. Ruggiano had "indicated that a diagnosis of PTSD could not be made." Id. The Board accepted the Disability Subcommittee's recommendation on February 10, 2016 and informed Borrelli of its denial on March 11, 2016. (Ex. 58 at ERSRI00551.) Borrelli appealed this decision through counsel on March 24, 2016, on the grounds that the decision was ambiguous and lacked findings of fact specific to its conclusion, and thus was arbitrary, capricious, and otherwise not in accordance with law. (Ex. 61 at ERSRI00568.)
F
Final Hearing Before the Board
The Retirement Board conducted a final rehearing of Borrelli's case on May 11, 2016. (Ex. 65, Hr'g Tr., May 11, 2016.) Five years after his application, when Mr. Borrelli was finally allowed to present his case, the chair suggested he "shoot for about 5 minutes on this, if you can." Id. at 23:10-11. The commission debated on why Borrelli did not apply for an ordinary disability. During oral argument, Attorney Gentile iterated his prior arguments regarding the Subcommittee's interpretation of the IME reports, and its finding that Borrelli's claimed PTSD disability was preexisting. Ex. 65 at ERSRI00584-00592.
Discussion of proximate cause was minimal. At the conclusion of the meeting, the Board voted to uphold the decision of the Disability Subcommittee incorporating by reference the findings of fact and conclusions of law in the Subcommittee's recommendation. Id. at 50:7-52:12, ERSRI00591. On June 17, 2016, Borrelli timely appealed the Board's final decision to this Court.
II
Standard of Review
Pursuant to § 42-35-15 of the Rhode Island Administrative Procedures Act, "[a]ny person, . . . who has exhausted all administrative remedies available to him or her within [an] agency, and who is aggrieved by a final order in a contested case is entitled to judicial review" by this Court. Sec. 42-35-15. This Court "may affirm the decision of the agency or remand the case for further proceedings," and may reverse or modify an agency's decision if:
"[S]ubstantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error or law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Sec. 42-35-15(g).
This Court must not "substitute its judgment for that of the agency as to the weight of the evidence on questions of fact," and will defer to an agency's factual determinations as long as they are supported by legally competent evidence on the record. Sec. 42-35-15(g); Town of Burrillville v. R.I. State Labor Relations Bd., 921 A.2d 113, 118 (R.I. 2007). Legally competent evidence is defined as '"such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means an amount more than a scintilla but less than a preponderance."' R.I. Temps, Inc. v. Dep't of Labor and Training, Bd. of Review, 749 A.2d 1121, 1125 (R.I. 2000) (quoting Ctr. for Behavioral Health, R.I., Inc. v. Barros, 710 A.2d 680, 684 (R.I. 1998)).
In contrast to an agency's findings of fact, an agency's determinations of law, including issues of statutory interpretation, "are not binding on the reviewing court." Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008). Instead, this Court reviews the record de novo in order "to determine what the law is and its applicability to the facts." Id.
III
Analysis
On appeal, Borrelli contends that ERSRI misapplied relevant law and reached conclusions that were clearly erroneous in light of the substantial evidence on the record, resulted in errors of law, and arbitrary and capricious. The Court will address each of Borrelli's arguments as well as those of ERSRI and intervenor, the Town, in turn.
A
1
Error of Law
Borrelli asserts that ERSRI incorrectly applied the proximate cause standard enumerated in Pierce v. Providence Retirement Bd., 15 A.3d 957 (R.I. 2011) when it concluded that he was not disabled as a result of the Assault. Specifically Borrelli asserts that the Board improperly used Dr. Ruggiano's report to determine that he is not disabled, despite its language supporting a finding of proximate cause. In opposition, ERSRI argues that the determination of whether an individual was physically or mentally incapacitated as a result of the natural and proximate cause of an accident sustained while in the performance of duty is a question of fact, and the Court must defer to ERSRI's interpretation. The Town counters that Pierce is distinguishable from the instant case and thus inapplicable.
Section 45-21.2-9 of Rhode Island General Laws provides the requirements for an application for a municipal employee's claim for accidental disability benefits. Counsel appear to be in agreement that the specifically worded statute also sets the criteria for the accidental disability award:
"Application for the allowance is made by the member or on the member's behalf, stating that the member is physically or mentally incapacitated for further service as the result of an injury or illness sustained while in the performance of duty and certifying to the time, place, and conditions of the duty performed by the member that resulted in the alleged disability and that the alleged disability was not the result of the willful negligence or misconduct on the part of the member, and was not the result of age or length of service, and that the member has not attained the age of sixty-five (65). Sec. 45-21.2-9(a).Pursuant to G.L. 1956 § 36-8-3, ERSRI has promulgated regulations regarding the interpretation of the accidental disability statute. R.I. Admin. Code 29-1-4:9-4. As such, the Board adopted the language of "natural and proximate result of an accident sustained while in the performance of duty" as its statutory standard for all accidental disability claims. Pierce, 15 A.3d at 959.
In Pierce, our Supreme Court addressed the meaning of the "natural and proximate result" language now in dispute on Borrelli's appeal. Pierce, a firefighter employed by the City of Providence, sought an accidental disability pension due to an ankle injury resulting from multiple prior traumas which was aggravated during an accident occurring while he was on duty. Pierce, 15 A.3d at 960. The Providence Retirement Board denied Pierce's application on the grounds that the three IME reports in his case, all of which found Pierce to be disabled, indicated that his "'disability flows from numerous repeated injuries to his ankle, none of which could be said to be the natural or proximate cause of his incapacitating disability.'" Grounding its interpretation in the law of negligence, the Pierce Court reversed the Retirement Board. Id. at 968. The Court held that proximate cause in the accidental disability context requires a finding that "'but for' [the Assault, the applicant] would not have become permanently disabled," and the applicant's permanent disability was "'a natural and probable consequence'" of the Assault. Id. at 965 (citing DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 692 (R.I. 1999)).
The determination of proximate cause is normally a question of fact. Martin v. Marciano, 871 A.2d 911, 918 (R.I. 2005). This Court must not disturb an agency's determination on a finding of fact so long as it is supported by legally competent or substantial evidence in the record. State, Dep't of Envtl. Mgmt. v. State, Labor Relations Bd., 799 A.2d 274, 277 (R.I. 2002); Town of Burrillville, 921 A.2d at 118.
Borrelli first asserts that the Board misapplied the Pierce proximate cause standard to Dr. Ruggiano's IME. He specifically argues that the Board erroneously characterized Dr. Ruggiano's IME report as supportive of its conclusion that Borrelli was not disabled as a result of the Assault, when Dr. Ruggiano's report includes language that tracks the standard in Pierce. Neither the Town nor ERSRI specifically address Borrelli's contention with regard to the Board's treatment of Dr. Ruggiano's testimony, but urge the Court to defer to the Board's interpretation of the report.
Frankly, it is challenging to analyze the reasoning of the Board. This is not only because there are thirteen different decision-makers and they adopt the decision of the Subcommittee, but their discussions are somewhat cryptic. Viewed in its entirety it is difficult to determine if the board understands the law of causation, whether it is requiring a single on-the-job event to cause the disability or whether the injury can accrue throughout employment, whether the department's responsibility was effected by its preemployment psychological testing, whether it may simply rely on the (varied) conclusions of the physicians, whether Borrelli's discipline after the Assault is a factor in his disability determination, and whether it may avoid any finding on whether the injury is work related. While the subcommittee found proximate cause, it is unclear whether the entire commission did, or appreciated the issues at hand. The Board effectively avoided these important factual determinations and legal conclusions.
Two commissioners specifically asked if the event "inflamed" the injury.
Moreover, the conclusions of doctors' reports are varied and often conflicting. Dr. Gallo and Dr. Buonanno conclude Borrelli was injured on duty. Dr. Savoretti concludes the injury was preexisting. Dr. Patel concludes that Borrelli was not injured because of his job, while Dr. Ruggiano says he was. Dr. Saris, a neurosurgeon, concluded that the back injury did not incapacitate Borrelli, but seems to adopt Dr. Gallo's finding of PTSD. The decision below does little to reconcile the varied opinions; hence, there are issues within the medical reports which remain unresolved by the finder of fact.
The Board cited Dr. Ruggiano's report in support of the proposition that Borrelli did not have PTSD (Decision 6); however, Dr. Ruggiano's report supports the claim that Borrelli was disabled as a result of the Assault as noted supra. Dr. Ruggiano opined that Borrelli did not have PTSD, but checked the box indicating that Borrelli was disabled from work. Moreover, the language of Dr. Ruggiano's findings indicate a causal connection consistent with the standard as outlined in Pierce. (Decision, Findings of Fact 18.) In his report, Dr. Ruggiano unequivocally and appropriately stated that while "a diagnosis of PTSD" cannot be made, "there was not a specific injury providing a basis for the patient's condition. Rather he is showing the result of cumulative factors of which the [Assault] was the final blow." Id.; Ex. 44 at ERSRI00479.
Although Dr. Ruggiano checked the "no" box in response to the question of whether Borrelli's disability was caused by the Assault, the language within his addendum tracks that of our Supreme Court in Pierce. In Pierce, the Court found that two IME doctors' opinions that "all of the accidents and traumas, including the [accident resulting in Pierce's application for accidental disability], played a causal role in disabling Pierce." Pierce, 15 A.3d at 965. The Court then held that the IME reports supported a finding of "but for" causation. Id.
In relying on the "no" response on Dr. Ruggiano's IME form, the Board has misconstrued Dr. Ruggiano's IME and misapplied the Pierce "but for" proximate cause standard. Dr. Ruggiano's report, viewed in its entirety for its precision, clearly concludes that the March 2010 Assault was a proximate cause of Borrelli's disability. Accordingly, the Court finds that the Board has committed legal error with regards to its finding that Borrelli was not disabled "but for" the Assault.
2
Arbitrary and Capricious
Borrelli challenges the Board's findings that Borrelli's PTSD disability was preexisting and not the result of the Assault. Borrelli also challenges the Board's finding that his prior history of trauma and psychological treatment precludes subsequent disability for on-duty injury. The Town suggests that ERSRI's determination that Borrelli's "long history of sustained traumatic events" (the Town's Br. 9) prior to the Assault was a question of fact, and deserves deference.
The Town of South Kingstown was allowed to intervene and filed a brief on September 8, 2018.
A review of the record reveals that Borrelli previously raised this issue through counsel at the February 5, 2016 oral arguments before the Subcommittee, prior to the Subcommittee's final recommendation to the Board. At hearing, Attorney Gentile asserted that the Subcommittee had erroneously relied on Dr. Patel's opinion because she did not answer the question the Board asked her: Whether or not Borrelli's disability "was caused by the job-related accident/incident." (Ex. 57 at ERSRI00537, Hr'g Tr. 17-18, Feb. 5, 2016.) Attorney Gentile further submitted that Dr. Patel
"answer[ed] a question that was never asked of her, which was, was the pre-existing condition [the PTSD] the cause of the disability. And the answer is no . . . There might have been PTSD prior to the employment. But the question you asked her was not what caused the PTSD . . . [but rather] is [Borrelli] disabled, when did he become disabled, and what relation was the [Assault] to the disability. She never answered that." Id. at 17:16-18:3.
Subcommittee Member Marcaccio later inquired about this line of reasoning, asserting that he believed Dr. Patel's finding that the PTSD was preexisting addressed the issue of whether the Assault caused Borrelli to be disabled. (Ex. 57 at ERSRI00540, Hr'g Tr. 30-31, Feb. 5, 2016.) Mr. Marcaccio concluded that he interpreted Dr. Patel's opinion to mean that Borelli "cannot go forward being a police officer because of the symptoms that have been ongoing in his life." Id. at 32:7-9, ERSRI00540.
Borrelli responded to Mr. Marcaccio's interpretation, stating,
"What are the symptoms that are disabling to me that were there prior [to the Assault]? They don't exist. And she does not state what they are." Id. at 33:14-17, ERSI00541.
Marcaccio responded:
"That's why it's her opinion. Different doctors have different opinions . . . She does recognize that you said you denied having any symptoms. She also does say in her opinion that the patient has a history of PTSD symptoms dated back to many years prior to this accident. I think that is her opinion." Id. at 34:4-14, ERSRI0541.
Borrelli countered:
"I stated I didn't have any symptoms. Are there other symptoms that she is referring to"? Id. at 34:22-24, ERSRI00541.
In its Decision, the Board relied on Dr. Patel's opinion that "Borrelli has a history of Post-Traumatic Stress Disorder symptoms dating back to many years prior to this accident." (Decision 6.) The Board noted that Dr. Patel acknowledged Borrelli's denial of PTSD symptoms prior to the Assault but "nevertheless detailed psychiatric issues and treatment prior to the [assault], including for substance abuse and relationship issues" and "numerous instances of trauma" prior to March 20, 2010. Id.
It is not surprising that a proud former marine would initially deny being mentally harmed, particularly when his focus was on his back and neck injuries.
As noted supra, § 45-21.2-9 governs the standard under which an application for accidental disability is evaluated. An applicant must show that he or she "is physically or mentally incapacitated for further service as the result of an injury or illness sustained while in the performance of duty." Sec. 45-21.2-9(a). The statute focuses on whether an injury received on duty left the applicant incapacitated. It is unnecessary for either party to establish when the PTSD started. The applicant has established that an on-duty injury heightened the PTSD to result in incapacity.
In Pierce, the Court considered the issue of whether multiple accidents might contribute to a disabling condition, holding that prior workplace injuries or causes of a disabling condition did not preclude a finding that an applicant was disabled in a later assault. Pierce, 15 A.3d at 966. While the Pierce Court limited its explicit holding to the question of prior workplace injuries, it cited with approbation a number of cases in other jurisdictions in which an applicant for accidental disability had a condition which did not become disabling until a later workplace injury.
Here, the Board correctly declared that the existence of a pre-existing condition "is not necessarily dispositive" of the issue of whether an applicant was disabled in an on-duty assault. (Decision 6.) However, the Board has failed to carefully analyze whether a preexisting condition disabled an applicant prior to the alleged disabling injury. While Borrelli admitted the challenges in his life, there was no evidence to demonstrate that he was disabled prior to the Assault. In light of the remedial purposes of Prew v. Emp. Ret. Sys. of Providence, 139 A.3d 556, 513 (R.I. 2016), such evidence on its own cannot be dispositive of the issue of whether an applicant was disabled.
The Court notes that the record concerning the preexisting disability issue raises the concern of whether the Board's conclusions are supported by the substantial evidence on the record, and will discuss this issue further in section III(B).
Accordingly, the Court finds that it was arbitrary and capricious for the Board to conclude that prior evidence that Borrelli had PTSD prior to the Assault was sufficient to prove that Borrelli was not disabled as a result of the Assault.
B
Substantial Evidence
On appeal, Borrelli asserts that both the Board and the Disability Subcommittee failed to assess all of the evidence on the record. In response, both the Town and ERSRI contend that the Board's findings are entitled to deference under § 42-35-15(g) of the Administrative Procedures Act, and that there is substantial evidence to support the Board's conclusions.
1
Borrelli's Preemployment Screening and Work History
Borrelli first argues that the Board's finding that he was disabled prior to the Assault is expressly contradicted by the evidence at bar; namely, that he passed his preemployment psychiatric screening. Both the Town and ERSRI argue the Board's finding that Borrelli was not disabled as a result of the Assault, according to legally competent evidence. In response, Borrelli contends there is no evidence in the record demonstrating an inability of Appellant to perform his duties prior to the Assault, and other overwhelming evidence on the record indicating Borrelli is disabled as a result of the service-related Assault.
This Court affords deference when reviewing the decision of an administrative body. Mendonsa v. Corey, 495 A.2d 257, 263 (R.I. 1985) (holding that where "equally qualified experts and substantial evidence exists on both sides of the controversy," the Court must defer to the judgment of the agency if the agency's decision is based in substantial evidence). However, an agency does not receive deference when it fails to address or resolve contradictory evidence on the record. Freeman v. Barnhart, 274 F.3d 606, 609 (1st Cir. 2001) (holding that ALJ's disability benefits decision was not based in substantial evidence because it contradicted the testimony of a vocational expert and did not address the contradictory testimony in its decision). The Pierce Court's reasoning supports the proposition that an employee's work history prior to an allegedly disabling injury is material to an accidental disability pension determination. In Pierce, the Court held that that the applicant would not have been disabled but for the contested incident, based on the IME doctors' observations and "the fact that Pierce was able to work at full capacity prior to his June 2006 accident." Pierce, 15 A.3d at 965.
Here, the Subcommittee's finding that Borrelli was disabled by PTSD due to traumas before his employment and thus was not disabled by the Assault expressly contradicts the Town's own preemployment medical report, which found Borrelli had no psychiatric issues, as well as Borrelli's exceptional work history prior to the event. Despite the fact that Borrelli's pre-employment psychiatric report was before the Subcommittee and Board as early as April 2015, the Board failed to issue findings of fact or assess the weight of the evidence regarding Borrelli's work history and preemployment screening. Findings of fact on such crucial issues are necessary to support the Board's conclusions here. Accordingly, the Court finds that this portion of the decision is not based in substantial evidence on the record, vacates this portion of the decision and remands it to the Board for further findings of fact consistent with this Decision.
2
IMEs and Sufficient Findings of Fact
Borrelli also submits that the Subcommittee and Board place an undue amount of weight on the IME reports of Dr. Savoretti and Dr. Patel, noting that Dr. Savoretti was not a specialist in PTSD. Borrelli had pressed this issue at oral arguments before the Subcommittee and Board. Responding to statements of counsel at May 11, 2016 oral argument, the board chair opined: "I don't think it is inappropriate or unusual or has been challenged successfully that the Board relies on the opinions of the independent medical examiners more than the applicant's physicians." (Ex. 65 at ERSRI00586, Hr'g Tr. 32:2-7, May 11, 2016.)
Section 45-21.2-9 of the Rhode Island General Laws provides "[i]f a medical examination made by three (3) physicians engaged by the retirement board, and other investigations as the board may make, confirms the statements made by the member, the board may grant the member an accidental disability retirement allowance." While the plain language of the statute does not preclude the Board from placing greater weight on the IME reports, the Board must consider all of the evidence before it on the record in making its determination of eligibility. Sanderson v. Cont'l Cas. Corp., 279 F. Supp. 2d 466, 480 (D. Del. 2003) (holding that the issue on appeal was not whether the ERISA plan "should have given the treating physician's opinions 'substantial weight,' but instead, why Continental decided to give multiple other forms of evidence no consideration at all, or conflicting consideration.").
Here, the Board acknowledged its receipt of Borrelli's submissions from his treating medical providers, but did not provide any analysis of the credibility or information therein. (Decision, Findings of Fact 5, 19; Ex. 18 at ERSRI00345-00346, Decision, Feb. 6, 2014; Ex. 31 at ERSRI00414-00416, Decision, Oct. 3, 2014; Ex. 51 at ERSRI00500-00504, Decision, Sept. 5, 2015.) Furthermore, the Decision did not provide any findings of fact regarding the three years of medical records which Borrelli submitted with his application.
ERSRI urges the Court to apply the deferential standard of the two-tiered process of review outlined in Envtl. Sci. Corp. v. Durfee, 621 A.2d 200, 207 (R.I. 1993), asserting that the Disability Subcommittee was privileged to hear evidence not heard by the full Board and make credibility determinations thereof. However, the two-tiered administrative review process requires special deference to the hearing committee only on issues of witness credibility; the ultimate decision maker may review the committee's findings de novo. Johnston Ambulatory Surgical Assocs., Ltd. v. Nolan, 755 A.2d 799, 807 (R.I. 2000) (administrative decision maker's decision to overturn the hearing committee's decision was not erroneous, given the presentation of new evidence and that the hearing committee's challenged reasoning was not based on credibility determinations.) Frankly, it appears that the entire fifteen person Board avoided credibility determinations and findings of fact, but merely adopted the findings of the subcommittee on a thrice reviewed and contested case.
The Court may not give deference to an agency's fact-finding process when the agency has failed to produce a complete record with adequate findings of fact. See Zammarelli v. Beattie, 459 A.2d 951, 953 (R.I. 1983) (holding that ad administrative board must resolve evidentiary conflicts and make prerequisite factual determinations.); Bernuth v. Zoning Bd. of Review of Town of New Shoreham, 770 A.2d 396, 402 (R.I. 2001) (finding that where a board has provided a "conclusional" decision without sufficient findings of fact, "judicial review of a board's work is impossible"). It is well-established that an agency may not simply "rubberstamp" a fact finder's conclusions and adopt it as its own; nor should the Board grant deference to insufficient findings of fact or legal errors of the Subcommittee. Johnston Ambulatory Surgical Assocs., Ltd., 755 A.2d at 807 ("[The director] owed no special deference to the [fact finding] council's recommendation," particularly in a two-tiered system where the board did not base its recommendations on credibility determinations).
The Court recognizes the existence of widely conflicting evidence on the record, and acknowledges that on remand, after a thorough review of all the evidence, including Borrelli's medical records, the Board may very well find that Borrelli does not meet the standard to receive an accidental disability pension. As such, ERSRI has failed to conduct a meaningful review of the evidence that would allow this Court to afford it the requested deference. As such, the Court vacates the decision, and remands the matter to the Board with instructions to produce findings of fact consistent with the requirements of § 42-35-15 and § 45-21.2-9.
However, the Court also notes that the Board's findings of fact appear to have obfuscated the evidence as a whole on the record: four of the five physicians conducting IMEs assessed the merits of Borrelli's PTSD claim (Dr. Patel, Dr. Savoretti, Dr. Ruggiano, and Dr. Stewart) and of the four, three found Borrelli to be disabled (Dr. Patel, Dr. Ruggiano, and Dr. Stewart). Both Dr. Ruggiano and Dr. Stewart issued reports that concluded to a reasonable degree of medical certainty that the Assault was a direct and proximate cause of Borrelli's disability. See sections I and III(A), supra.
IV
Conclusion
After review of the entire record, this Court finds the Board's decision to be inadequate and conclusory and thus, not based in substantial evidence on the record. The Court further finds the decision to be arbitrary and capricious and that substantial rights of the Appellant were prejudiced.
Mr. Borrelli's appeal is sustained, the decision of the Board is vacated, and this case is remanded to the administrative agency for further proceedings consistent with this Decision.
Counsel shall submit the appropriate order for entry.
ATTORNEYS:
For Plaintiff: Michael J. Lepizzera Jr., Esq. For Defendant: Michael P. Robinson, Esq. (Defendants) Amy H. Goins, Esq.; Michael A. Ursillo, Esq. (Intervenor)