Opinion
C. A. PC-2019-4972
08-17-2020
DAMON BORRELLI, Petitioner v. RETIREMENT BOARD OF THE MUNICIPAL EMPLOYEES' RETIREMENT SYSTEM OF THE STATE OF RHODE ISLAND; SETH MAGAZINER in his capacity as Chairman of the Retirement Board of the Municipal Employees' Retirement System of the State of Rhode Island; and FRANK J. KARPINSKI in his capacity as the Executive Director of the Municipal Employees' Retirement System of the State of Rhode Island Respondents TOWN OF SOUTH KINGSTOWN Interested Party
For Plaintiff: Michael J. Lepizzera, Jr., Esq. For Defendant: Michael P. Robinson, Esq. For Intervenor: Michael A. Ursillo, Esq., Peter F. Skwirz, Esq.
For Plaintiff: Michael J. Lepizzera, Jr., Esq.
For Defendant: Michael P. Robinson, Esq.
For Intervenor: Michael A. Ursillo, Esq., Peter F. Skwirz, Esq.
DECISION
The Town of South Kingstown (hereinafter, the Town) filed a motion to intervene which was granted on July 26, 2019.
Before this Court is the appeal of Appellant Damon Borrelli (hereinafter, Borrelli or Petitioner) from the March 18, 2019 decision of the Retirement Board of the Municipal Employees' Retirement System of the State of Rhode Island (hereinafter, Board, ERSRI, or MERS), which denied Borrelli's application for an accidental disability retirement (hereinafter, the Application). Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
I
Facts and Travel
The facts are primarily set forth in Borrelli I. Below is a brief review of the facts and procedural posture to date. Borrelli applied to and was accepted by the South Kingstown Police Department (hereinafter, SKPD) in 2002. (See Borrelli I, at *1.) 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." Id. While a police officer, Borrelli led the SKPD in arrests and also attended Roger Williams School of Law, completing his J.D. in June of 2011. Id. Prior to becoming a police officer, Borrelli saw a number of counselors and mental health professionals infrequently, starting in the 1990s. Id. In October 2009, Borrelli saw Maryann Cascio, LISCW, RN for issues relating to his relationship with his girlfriend. Id. Cascio referred him to Dr. James Gallo for treatment for ADHD in January of 2010.
See Borrelli v. Retirement Board of Employees' Retirement System of Rhode Island, No. PC-2016-2817, 2018 WL 3933931 (R.I. Super. Aug. 9, 2018).
The genesis of the Application stemmed from a March 20, 2010 incident. On March 20, 2010, Borrelli was on duty as an undercover officer on an alcohol enforcement detail. Id. While undercover, Borrelli was responding to a call and passed a vehicle in a no-passing zone, after which the driver of the car sped up and started flashing his lights and screaming he was going to "kill" Borrelli. Id. Borrelli pulled over to the side of the road to let the car pass and record the license plate; instead, the car "smashed" into the rear-end of Borrelli's vehicle. Id. Borrelli identified himself as a police officer. Id.
The driver continued to scream, and a physical fight ensued between the two. Id. Borrelli reported being anxious during the fight because he had no security on his gun holster due to his being in plain clothes for the undercover detail. Id. Borrelli also stated that he was fearful that the driver was going to kill him and his daughter would be without a father. Borrelli describes physical and emotional distress when reminded of the incident. On April 20, 2011, the SKPD referred Borrelli for a fitness for duty evaluation with Patricia L. Gallagher, Ph.D., a licensed psychologist. Id., at *2. Dr. Gallagher concluded that Borrelli was not psychologically fit to perform the tasks of a police officer. Id.
Thereafter, Borrelli submitted his first Application on September 29, 2011. Id. The Disability Subcommittee (hereinafter, Subcommittee) relied on a number of Independent Medical Examinations (hereinafter, IME) when deciding whether to grant or deny Borrelli's Application. In December 2013, Borrelli received IMEs from Dr. Sandhya Patel, a psychiatrist; Dr. Stephen Saris, a neurosurgery specialist; and Dr. Alberto Savoretti, an internal medicine specialist. Id. 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 experience as a Navy Seal in Operation Desert Strom. Id. Dr. Saris concluded that to a reasonable degree of medical certainty, Borrelli was not disabled as a result of his back injury and reached maximum medical improvement and could have returned to work as a police officer without restriction. Id., at *3. Dr. Savoretti concluded in his IME that Borrelli was disabled as a result of the assault and had reached maximum medical improvement but stated that his assessment was "with reservation." Id. Dr. Savoretti checked the box indicating that Borrelli was disabled as a result of an accident sustained in the performance of his job. However, he 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 . . . 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. Borrelli submitted physician statements from Dr. James Gallo, and Dr. William Buonanno, dated August 3, 2012. Id., at *2. According to the forms, both doctors certified that Borrelli is disabled as a result of an accident sustained in the performance of his duties.
On February 6, 2014, the Subcommittee voted to deny Borrelli's Application. Id., at *3. Thereafter, on February 12, 2014, the Board voted to accept the Subcommittee's recommendation. Id. On June 11, 2014, Borrelli requested a reconsideration hearing by the Subcommittee. On October 3, 2014, Borrelli appeared before the Subcommittee for a reconsideration hearing. At the conclusion of the hearing, the Subcommittee again voted to deny Borrelli's Application. Id. Thereafter, on October 8, 2014, the Board voted to accept the Subcommittee's recommendation. On or about February 24, 2015, Borrelli, through counsel, requested a hearing before the Board and argued that his Application should be remanded to the Subcommittee for the purpose of seeking additional IMEs to specifically address the issue of his PTSD claim. Id., at *4. The Board voted to remand the matter to the Subcommittee for the purpose of obtaining two additional IMEs to address the PTSD claims. Id.
Borrelli was examined by Ronald Stewart, M.D., a specialist in psychiatry, who concluded that Borrelli was disabled as a result of the accident sustained in the performance of his job. In Dr. Stewart's report, he concluded that
"[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.
Borrelli was also examined on July 2, 2015 by John Ruggiano, who concluded that Borrelli was not disabled as a result of the reported accident sustained during the performance of his job. Id. Dr. Ruggiano concluded that "[t]here was not a specific injury providing a basis for [Borrelli's] current condition. Rather he is showing the result of cumulative factors of which the incident on 3/20/10 was the 'final blow.'" Id. Borrelli also submitted additional reports from Anait Azarian, Ph.D.; Dr. James Gallo, related to prior diagnosis; and from Susan Hamin, LMHC, who submitted letters in support of his application. Id., at *5
On September 4, 2015, the Subcommittee again voted to deny Borrelli's Application. Id. Thereafter, on September 9, 2015, the Board voted to accept the Subcommittee's recommendation. On December 21, 2015, Borrelli, through counsel, requested another reconsideration hearing by the Subcommittee that was ultimately denied, and the Board affirmed the denial of Borrelli's Application. Id.
Borrelli appealed the denial to the Superior Court, and, on August 9, 2018, this Court, Lanphear, J., issued a decision remanding the matter to the Board for further proceedings. Justice Lanphear held that the Board's decision was inadequate and conclusory. In his Decision, Judge Lanphear identified a number of issues that he wanted addressed on remand. Specifically, he felt the Board's initial decision insufficiently reconciled the varying medical opinions and failed to properly apply the appropriate legal standard regarding proximate causation to the medical opinions. Additionally, he reasoned that the Board improperly evaluated evidence of pre-existing PTSD and its impact on the causal relationship between the present condition and the March 20, 2010 assault. The Court also held that the Board failed to consider Mr. Borrelli's pre-employment screening and the existence of widely varying and conflicting evidence on the record.
On October 10, 2018, the Subcommittee again recommended the denial of Borrelli's Application. The matter was brought before the full Board on March 18, 2019 for a final determination hearing at which Borrelli testified, and his counsel presented argument. At the conclusion of the hearing, the Board voted to uphold its denial of Borrelli's Application. This action was filed by Borrelli on April 20, 2019. The Town changed its position since the issuance of Borrelli I. In the prior appeal, the Town agreed with the Board claiming that Borrelli was not statutorily entitled to an accidental disability pension. On the appeal at hand, the Town now supports Petitioner's appeal and asks the Court to reverse the Board's latest decision and grant Borrelli an accidental disability pension.
II
Standard of Review
Pursuant to § 42-35-15 of the Rhode Island Administrative Procedures Act (APA), "[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. Section 42-35-15. The Superior Court has jurisdiction to review the Board's decision denying Petitioner's Application. This Court "may affirm the decision of the agency or remand the case for further proceedings," and may reverse or modify the 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 of 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." Section 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. Section 42-35-15(g); Town of Burrillville v. R.I. State Labor Relations Board, 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. Department of Labor and Training, Board of Review, 749 A.2d 1121, 1125 (R.I. 2000) (quoting Center for Behavioral Health, R.I., Inc. v. Barros, 710 A.2d 680, 684 (R.I. 1998)).
In contrast to the 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) (internal quotation omitted). Instead, this Court reviews the record de novo in order "to determine what the law is and its applicability to the facts." Id. (internal quotation omitted).
III
Analysis
A
Accidental Disability Benefits Based on G.L. 1956 § 45-21.2.9
A retirement pension for a state employee may be based on years of service or it may become available by virtue of a disabling condition; this latter form of retirement is further divided into two categories, i.e., ordinary disability and accidental disability. Rossi v. Employees' Retirement System of the State of R.I., 895 A.2d 106, 111 (R.I. 2006). Ordinary disability retirement is for members who become totally incapacitated from the performance of their duties but not as a result of an injury sustained while in the performance of their duties. Accidental disability retirement is for those members who become totally incapacitated from the performance of their duties as a result of an injury sustained while in the performance of their duties. See §§ 45-21.2-7; 45-21.2-9. Pertinent to the within case, § 45-21.2-9, entitled "Retirement for accidental disability," provides accidental disability retirement allowance benefits to police officers who are rendered physically or mentally incapacitated as a result of an injury while in the line of duty. Lang v. Municipal Employees' Retirement System of Rhode Island, 222 A.3d 912, 915 (R.I. 2019).
Under § 45-21-22, the accidental disability allowance provides that "[u]pon retirement for accidental disability, a member receives a retirement allowance equal to sixty-six and two-thirds percent (66 2/3%) of the rate of the member's compensation at the date of the member's retirement subject to the provisions of § 45-21-31." For example, in Pierce v. Providence Retirement Board, 15 A.3d 957, 961 (R.I. 2011), the Court began its analysis of the variety of retirement options for members of the City of Providence's Retirement System by identifying the "three retirement options available to members . . ." Significantly, the Court took notice that "the system bestows more lucrative benefits upon members who were disabled in the line of duty than upon members who were disabled outside of work." Id. "Not surprisingly, entitlement to accidental-disability retirement's greater benefits requires a member to meet criteria that are more discriminating than the other two retirement options." Id. at 961-62. Similarly, in Richard v. Employees' Retirement System of R.I., No. PC-09-6998, 2011 WL 1527075, at *4 (R.I. Super Apr. 18, 2011), our Superior Court noted that under the state retirement systems, "[a]ccidental disability pensions have more onerous requirements, and the payout is typically more."
Section 45-21-31 is not relevant to Borrelli's retirement because it relates to the workers' compensation offset.
The requirements for an application for a municipal employee's claim for accidental disability benefits is found in § 45-21.2-9. The statute states, in pertinent part:
"(a) Any member in active service, regardless of length of service, is entitled to an accidental disability retirement allowance. 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)." Section 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. See R.I. Admin. Code 29-1-4:9-4. The Board has 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.
B
Issues on Appeal
The salient issue before this Court is whether the Board has applied the legal principles enumerated in Pierce correctly, particularly the "natural and proximate result of an accident [sustained] while in the performance of duty" language. Pierce, 15 A.3d at 959. Borrelli contends that the Board, again, misapplied relevant law and reached conclusions that were clearly erroneous in light of substantial evidence on the record, resulted in errors of law, and were arbitrary and capricious. Specifically, Borrelli avers that the Board incorrectly applied the proximate cause standard enumerated in Pierce and failed to provide the proper legal standard and instruction to the independent medical examiners. In opposition, the Board argues that it has addressed issues raised by the Pierce decision since 2011, and that the March 20, 2010 incident did not cause Borrelli to become incapacitated, in light of his history of nonwork-related traumas, and precludes a finding of "but-for" causation. Further, the Board argues that the March 20, 2010 incident does not constitute a "qualifying accident." The Town has changed its original findings and now argues that the Board's decision to deny accidental disability retirement to Borrelli is plagued by both a misunderstanding of proximate cause and the misconstruction of evidence on the record. The Court will address each of Borrelli's arguments as well as those of the Board and the intervenor, the Town, in turn.
1
Proximate Cause
Borrelli asserts that ERSRI incorrectly applied the proximate cause standard enumerated in Pierce when it concluded that Borrelli was not disabled as a result of the assault. Proximate, in the legal context of "proximate cause," requires a factual finding that the harm would not have occurred but for the accident and that the harm was the natural and proximate consequence of the accident. Pierce, 15 A.3d at 964. 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. Section 42-35-15(g); Town of Burrillville, 921 A.2d at 118.
In Pierce, a firefighter employed by the City of Providence sought an accidental disability pension due to an ankle injury resulting from multiple traumas which was aggravated during an accident occurring while he was on duty. Pierce, 15 A.3d at 960. The Providence Retirement Board denied the application on the grounds that the IME reports, all of which found Pierce 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." Id. Grounding its interpretation in the law of negligence, the Pierce Court reversed the Providence Retirement Board. Id. at 968; see also Borrelli I, at *13. 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. Pierce, 15 A.3d at 965 (quoting DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 692 (R.I. 1999)). Like the firefighter in Pierce, Borrelli's disability, according to the IMEs, flows from multiple traumas.
The Board relies on the independent physician's IME reports and the applicant's own physicians' reports to make the determination of whether to approve or deny the application for accidental disability. Borrelli argues that there is nothing in the administrative record to suggest that ERSRI provided the IME physicians with the proximate cause instruction following the Lanphear Decision for the IME physicians to properly answer the central question with respect to Petitioner's Application for disability. Specifically, question one in the IME questionnaire states, "[i]s the disability as a result of the reported accident sustained in the performance of the applicant's job and not the result of age or length of service?" See Independent Medical Exam of Sadhya Patel (Dec. 5, 2013) (emphasis added). This Court notes that nowhere in the questionnaire does ERSRI provide the physicians with a legal definition of "proximate cause."
Looking at the record, it has been shown that question one in the IME questionnaire has, in fact, been misinterpreted. Dr. Ruggiano's report opined that Borrelli did not have PTSD, but checked the box indicating that Borrelli was disabled from work. Dr. Ruggiano's findings indicate a causal connection consistent with the standard outlined in Pierce. He found that while "a diagnosis of PTSD" cannot be made, "[t]here was not a specific injury providing . . . for the patient's . . . condition." Rather he is showing the result of cumulative factors of which the [assault] was the final blow." Borrelli I, at *4. In Borrelli I, the Court held that the Board has misconstrued Dr. Ruggiano's IME and misapplied the Pierce "but-for" proximate cause standard. The Board has done little to rectify their clear misapplication and reasoning behind Dr. Ruggiano's report. Dr. Ruggiano's words (i.e., the March 20, 2010 incident was the final blow) are an example of the Court's explanation of the meaning of proximate cause announced in Pierce. Dr. Ruggiano seemingly did not understand the legal standard which caused him to check off the wrong box. It was the Board's legal responsibility to apply the correct standard. By adopting Dr. Ruggiano's findings, the Board could not have concluded that Petitioner did not suffer from a service-connected injury.
Next, the Board relies heavily on Dr. Patel's report that Borrelli's PTSD disability was pre-existing and not the result of the assault. Dr. Patel relies on Borrelli's past history to find that it was the past trauma that caused him to become incapacitated and was not a result of the March 20, 2010 incident. Dr. Patel acknowledges that Borrelli denies having PTSD symptoms prior to the assault but "nevertheless detailed psychiatric issues and treatment prior to the [assault]." Id. at *6. Borrelli argues that Dr. Patel made the same mistake as Dr. Ruggiano in their misunderstanding of "sole cause" and "contributing cause." Dr. Patel's report offers an in-depth look into Borrelli's past and present traumas and symptoms. Dr. Patel ultimately finds that this disability is not a result of the reported accident sustained in the performance of the applicant's job duty. Id. Rather, the patient has a history of PTSD symptoms dating back to many years prior to this accident. Id. Of the nine pages in Dr. Patel's report, there is never a question of whether the March 20, 2010 incident was a contributing factor to Borrelli's PTSD. Dr. Patel claims that the disability is not the result of the assault. However, that is not what the IMEs are necessarily asked to find. They are to consider whether the assault was a contributing factor in the PTSD.
It is not clear to this Court, let alone to a physician unfamiliar with the law of causation, whether question one is asking if the assault was the sole cause or a contributing cause of Borrelli's PTSD. As the Court concluded in Pierce, Borrelli was not required to show that the March 20, 2010 incident was the "sole and only cause" of his PTSD. Pierce, 15 A.3d at 966. He was only required to demonstrate that this work-connected incident was but one cause which "concur[red] and unite[d] with some other cause" which produced the resulting injury. Id. "[P]roximate cause need not be the sole and only cause. It need not be the last or latter cause. Its's a proximate cause if it concurs and unites with some other cause which, acting at the same time, produces the injury of which complaint is made." Hueston v. Narragansett Tennis Club, Inc., 502 A.2d 827, 830 (R.I. 1986) (internal quotation omitted).
Moreover, Borrelli contends he was able to perform his job duties before experiencing the assault and that it was not until he experienced the assault that he was unable to perform his duties. Based on the record, "but-for" the March 20, 2010 on-the-job incident, Borrelli was able to perform his full duties as a police officer. The Town suggests that it is undisputed by the myriad of doctors that conducted evaluations that Borrelli was incapacitated in the period following the incident. As the Court stated in Borrelli I, 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." Borrelli I, at *8. (quoting § 45-21.2-9(a)) The statute focuses on whether the injury received on duty left the applicant incapacitated. It is unnecessary for either party to establish when the PTSD started. Borrelli I further held that Borrelli has established that an on-duty injury heighted the PTSD to result in incapacity.
Additionally, all of the physicians who submitted IMEs recognized that Borrelli was a highly functional patrol officer with the SKPD and attained his Master's Degree and was in law school at the time of the accident. There is no evidence on the record demonstrating an inability to perform his job as a police officer prior to and at the time of the incident. See Borrelli I, at *11. The Board and Dr. Patel, who found that Borrelli did suffer from PTSD but that the condition was not work-related, relied on Borrelli's past traumas to debunk his claim for accidental disability insurance. Like the fireman in Pierce, evidence of Borrelli's functionality as a police officer and as a person is highly relevant in determining whether the reported accident constitutes a contributing cause to the officer's disability. Borrelli's 2002 pre-employment evaluation indicated that Borrelli had "[n]o medical contraindication to . . . performing [his] job without accommodation." Borrelli I, at *1. Although this pre-evaluation did not take into account all of Borrelli's past traumas, which the Board points to, stating that the screening was conclusory, there is sufficient evidence on the record from the physicians who submitted the IMEs that Borrelli was indeed fit for duty. Borrelli's fitness for duty is supported by the "numerous commendations" Borrelli received as a police officer. Id. Additionally, there has been a 20-30-year span in time from the majority of the traumas the Board points to in order to deny Borrelli's Application. Therefore, the Court finds that it was arbitrary and capricious for the Board to conclude that Borrelli's past trauma prior to the assault was sufficient to prove Borrelli was incapacitated prior to the March 20, 2010 assault.
2
Qualifying Accident
The Board argues that the incident on March 20, 2010 was not a "qualifying accident" under § 45-21.2-9(a) and recommends the accidental disability retirement be denied on this basis. Borrelli avers that the plain and unambiguous language of the statute only requires the officer to show that he is incapacitated "as the result of an injury" which occurred in the line of duty. The statute states, in pertinent part:
"(a) Any member in active service, regardless of length of service, is entitled to an accidental disability retirement allowance. 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). The application shall be made within eighteen (18) months of the alleged accident from which the injury has resulted in the member's present disability and shall be accompanied by an accident report and a physician's report certifying to the disability." Section 45-21.2-9(a). (Emphasis added.)
In construing § 45-21.2-9(a), this Court must '"establish and effectuate the intent of the Legislature."' Wayne Distributing Co. v. Rhode Island Commission for Human Rights, 673 A.2d 457, 460 (R.I. 1996) (quoting Rhode Island State Labor Relations Board v. Valley Falls Fire District, 505 A.2d 1170, 1171 (R.I. 1986)) (citing Howard Union of Teachers v. State, 478 A.2d 563 (R.I. 1984)). This intent is determined '"by examining the language, the nature, and the object of the statute while giving its words their plain and ordinary meaning."' C & J Jewelry Co., Inc. v. Department of Employment and Training, Board of Review, 702 A.2d 384, 385 (R.I. 1997) (quoting Asadoorian v. Warwick School Committee, 691 A.2d 573, 578 (R.I. 1997)). Moreover, '"[i]t is well settled that when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings."' Providence & Worcester Railroad Co. v. Pine, 729 A.2d 202, 208 (R.I. 1999) (quoting Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996)).
'"When confronted with statutory provisions that are unclear and ambiguous, however, [the Court] examine[s] statutes in their entirety in order to 'glean the intent and purpose of the Legislature."' Providence and Worcester Railroad, 729 A.2d at 208 (quoting State v. Flores, 714 A.2d 581, 583 (R.I. 1998); In re Advisory to the Governor (Judicial Nominating Commission), 668 A.2d 1246, 1248 (R.I. 1996)). '"In so doing, [the Rhode Island Supreme Court] consider[s] the entire statute as a whole; individual sections must be considered in the context of the entire statutory scheme, not as if each section were independent of all other sections."' Id. (quoting Sorenson v. Colibri Corp., 650 A.2d 125, 128 (R.I. 1994)).
With respect to administrative law, "it is also a well-recognized doctrine . . . that deference will be accorded to an administrative agency when it interprets a statute whose administration and enforcement have been entrusted to the agency." Pawtucket Power Associates Ltd. Partnership v. City of Pawtucket, 622 A.2d 452, 456 (R.I. 1993) (citations omitted)). "Deference is accorded even when the agency's interpretation is not the only permissible interpretation that could be applied." Id. at 456-57. (citing Young v. Community Nutrition Institute, 476 U.S. 974, 981 (1986)). Moreover, '"the construction given by the agency charged with its enforcement is entitled to weight and deference as long as that construction is not clearly erroneous or unauthorized."' Asadoorian, 691 A.2d at 577 (quoting Gallison v. Bristol School Committee, 493 A.2d 164, 166 (R.I. 1985)).
The Board relies on Dr. Savoretti's opinion that Borrelli did not suffer from PTSD as a result of the March 20, 2010 incident, as "the incident of cause, a simple uncooperative subject resulting in a mild to moderate injury . . . would be commonplace for a police officer. . . ." Borrelli I, at *3. Conversely, Borrelli states that Dr. Savoretti's opinion on PTSD is unqualified because he has no qualifications to diagnose PTSD and was replaced by Doctors Ruggiano and Stewart in the first appeal because of their qualifications in the field of PTSD.
This Court affords great deference to the Board's interpretation of § 45-21.2-9(a). See 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. Eligibility for an accidental disability pension requires proof of an "identifiable incident," which entails the establishment of the three elements listed under the statute. The three elements under the statute that the applicant must certify are time, place, and conditions of the duty performed by the member and the incident resulting in the alleged disability for the member to be eligible for an accidental disability pension.
The Court finds this interpretation consistent with the aforementioned authority granted by the Legislature to the Board and consistent with the administrative requirements for granting an accidental disability retirement as set out in the statute. Regulation No. 9, Rules pertaining to the application to receive an Ordinary or Accidental Disability Pension, requires an injury or accident report to accompany an accidental disability retirement application submitted by a police officer. See ERSRI Regulation 9. (Emphasis added.) This requirement reveals the Legislature's intent that an accidental disability pension application necessitates a preceding accident. The March 20, 2010 assault qualifies as an injury sustained in the performance of Borrelli's duty. Borrelli submitted an incident/accident report with his initial Application that was accepted by the Board. Additionally, the Application and injury report cite to the March 20, 2010 job-related assault. From the Board's own definition of an accident, "an event which under the circumstances is unusual and unexpected by the person to whom it happens; an unusual, fortuitous, unexpected, unforeseen or unlooked for event, happening or occurrence," see MERS Mem. in Supp. of Decision of March 18, 2019 at 14, it is a stretch to the term "accident" to claim that the March 20, 2010 assault was foreseeable and expected, even for an officer with experience. The record provides a clear indication of an identifiable incident. From a plain reading of the statute, it is clear that the assault qualifies as an "injury . . . sustained while in the performance of duty." See § 45-21.2-9(a). This Court finds the Board's decision to deny the accidental disability benefit is clearly erroneous in view of the substantial evidence on the whole record.
IV
Conclusion
After reviewing the Application at issue, along with the supporting documentation supplied by Borrelli and the Board, the medical reports of the independent physicians retained by ERSRI, and the record of the administrative proceedings, it is clear that the Board's decision was inadequate. Additionally, this Court takes into account the Town's change in position and request that this Court overturn ERSRI's determination that Borrelli was not physically or mentally incapacitated as a result of an identifiable event on duty. This Court finds substantial evidence exists in the record to support Borrelli's claim that the March 20, 2010 incident constitutes an identifiable injury sustained in the performance of duty.
The Board misinterpreted the Pierce standard of proximate cause when it determined that Petitioner was not disabled as a result of the March 20, 2010 incident. The Board's denial of Borrelli's Application because it is not a "qualifying accident" is not based on substantial evidence of record. The Court further finds the decision to be arbitrary and capricious and that substantial rights of the Petitioner were prejudiced. Borrelli's appeal is sustained, the decision of the Board is vacated, and the case is remanded to the Board for further proceedings consistent with this Decision.
Counsel shall submit the appropriate judgment for entry.