Opinion
No. 108,379.
2013-05-24
Jeffrey L. LUPER, Appellant, v. BOARD OF TRUSTEES OF the POLICE & FIRE RETIREMENT BOARD OF the CITY OF WICHITA, Kansas, Appellee.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge. Donald N. Peterson, II, and Sean M. McGivern, of Withers, Gough, Pike, Pfaff & Peterson, LLC, of Wichita, for appellant. Brian K. McLeod, deputy city attorney, for appellee.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Donald N. Peterson, II, and Sean M. McGivern, of Withers, Gough, Pike, Pfaff & Peterson, LLC, of Wichita, for appellant. Brian K. McLeod, deputy city attorney, for appellee.
Before ATCHESON, P.J., GREEN and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jeffrey L. Luper appeals the decision of the Board of Trustees of the Police & Fire Retirement System of Wichita denying him service-connected disability benefits. Luper, a 15–year veteran of the fire department, claims he is permanently disabled on account of posttraumatic stress disorder (PTSD) caused by his repeated exposure to traumatic events during his service as a firefighter. The district court affirmed the Board's decision to deny benefits. Because the Board improperly rejected the opinion of Luper's psychiatrist without exploring further the cause of Luper's disability, we must reverse and remand the case for further proceedings before the Board.
Luper was a firefighter and later a fire investigator for the Wichita Fire Department. The City of Wichita had established a retirement system for its police and firefighters in Charter Ordinance 215, Code of Ordinances of the City of Wichita (2011). The ordinance also provides for service-connected disability benefits:
“SECTION 19. Permanent Service–Connected Disability Benefits. Any Member, who shall, while engaged in the performance of his or her duties, be permanently injured or disabled, other than as the result of an occupational disease, and upon an examination by a physician or physicians appointed by the Board of Trustees, be found to be physically or mentally disabled as a result of such permanent Disability or injury so as to render him incapable to perform the duties of the position held by the Member at date of Disability, shall be entitled to be retired, and the Board of Trustees shall thereupon order such Member's retirement and upon being retired, the Member shall be paid a benefit equal to seventy-five percent (75%) of the Salary in effect on the date when Salary payments ceased. The benefit shall be established according to the charter ordinance that is in effect at the time Salary payments ceased.”
Section 3 includes the following definitions:
“ ‘Act of Duty’ means an act performed by a Member within the scope of occupational duties inherently involving special risks not generally assumed by a citizen in the ordinary walks of life, for the purpose of protecting life or property, including any act of heroism as a Member.
....
“ ‘Disability’ means total inability to perform permanently the duties of the position held by the Member at date of Disability due to a physical or mental incapacity resulting from external force or violence or disease.
“ ‘Service–Connected Disability’ means any physical or mental incapacity resulting from external force, violence, or occupational disease occasioned by an Act of Duty as a Police or Fire Officer, imposed by the ordinance or rules and regulations of the City, or any other Disability, which may be directly attributable to the performance of an Act of Duty.”
If an eligible employee applies for disability benefits, a disability screening committee screens the application to determine if all necessary information is included. Then the Board of Trustees reviews the application and determines whether the applicant is entitled to disability benefits.
In August 2011, Luper applied for service-related disability benefits. He claimed he was entitled to disability benefits because he suffered from PTSD brought on by his exposure to traumatic incidents he experienced over his years as a firefighter. These included incidents in which he administered cardio-pulmonary resuscitation (CPR) to a child who drowned, administered CPR to a child with a debilitating disease, administered CPR to a man long enough for his family to say goodbye, engaged in car wreck extractions, saw a woman placed in a body bag who still had a pulse, and attended autopsies of fire victims. He contended that his PTSD finally was triggered when he was asked to witness the autopsy of a fellow firefighter, Luper's close personal friend and mentor, who died as a result of physical stress from fighting a fire. Luper claimed his PTSD rendered him incapable of continuing to work for the fire department.
In September 2011, a month after filing his application for disability benefits, Luper was fired.
Luper also had a long-standing history of alcohol abuse for which he finally received extensive treatment in the year before he was fired. About a year before Luper's termination, in October 2010, the fire department referred Luper under its Employee Assistance Program to Dr. Ralph Bharati, a psychiatrist who specializes in treating substance abuse. The Board deciding Luper's disability claim was provided a letter from Dr. Bharati who stated:
“I do think he meets criteria for posttraumatic stress disorder because he suffered a lot of traumatic events while he was working as a fireman, ... and this caused a lot of anxiety and depression in him and resulted in self-medicating and alcoholism.... [H]e has been in our intensive outpatient treatment program until today. However, during all this time he continues to relapse in drinking and he has had three or more hospitalizations....
“I think the cause of disability is posttraumatic stress disorder because of working as a fireman and doing all these dangerous behaviors.... That is the cause of his disability.... [H]e is unable to function in any occupation.... [I]t is a chronic and delayed onset.... [A]t this time, I think his condition is quite permanent and is likely not to make enough progress for him to return to any gainful employment....”
“... [H]is diagnosis is posttraumatic stress disorder and alcohol dependence. These are pretty much the cause of his disability and I think his posttraumatic stress disorder is a permanent one.”
Luper was also treated by Dr. Angela Moore. Dr. Moore had been Luper's primary care physician for about 8 months. The Board received a letter from her in which she stated:
“Because of his history of psychiatric treatment with Dr. Bharati as well as several stays in inpatient detox, he does not appear to be recovered. In my professional opinion, based on my observations, evaluations and review of records from the hospital and Dr. Bharati, he has the diagnosis of alcoholism, depression with anxiety and posttraumatic stress disorder. He is permanently disabled from the career of firefighting and I believe he would never be able to return to his career.”
Luper's application for disability benefits, a staff summary, Luper's medical records, and the letters from his physicians were first reviewed by the disability screening committee to determine whether adequate records were available to enable the Board to act upon the application. Four of the committee's five members participated.
During the screening committee meeting, one committee member questioned whether the committee had the complete records detailing Luper's stay at the Hazelden facility in Minnesota where Luper received inpatient treatment for alcoholism, anxiety, depression, and “possible symptoms of PTSD related to traumas that he has encountered in the fire department.” The committee member stated that Luper showed that he was disabled, but he did not think that it was shown that the disability was a service-connected disability. Another committee member agreed, noting that many members of the police or fire department drink, including a member of the police department who recently resigned due to his drinking and could have made a similar claim of service-related disability, and noting further that there are “a thousand” police and firefighters in the city who have seen similar traumas.
A committee member noted that Dr. Moore's letter lacked a statement of causation linking Luper's disability to his work. The committee member stated that she spoke with Dr. Moore, who said she would agree with Dr. Bharati's diagnosis and his opinion of the cause of Luper's PTSD. The committee member also reported that Dr. Moore said, “I will say whatever I need to say,” deferring to Dr. Bharati as the “professional standard.”
Luper was invited into the committee meeting, and one of the committee members informed Luper that it appeared from the application packet that Luper's issue was alcoholism and that the doctors “now believe that PTSD is a major component of it.”
The committee found that Luper's medical information was sufficient to submit the application to the Board for a decision.
The membership of the Board and the screening committee overlap somewhat. There are 16 Board members. Nine are required for a Board decision. Three committee members participated in the Board decision. At the Board's hearing, the fire marshal was the only live witness. He testified that he did not notice any problems with Luper's work or use of leave time before he was requested to attend his friend's autopsy. Nevertheless, a document identified at the Board hearing listed Luper's use of sick leave as follows:
+-------------------------------+ ¦2002–2005¦23–53 hours per year ¦ +---------+---------------------¦ ¦2006 ¦215.8 hours ¦ +---------+---------------------¦ ¦2007 ¦263.11 hours ¦ +---------+---------------------¦ ¦2008 ¦240.03 hours ¦ +---------+---------------------¦ ¦2009 ¦262.86 hours ¦ +-------------------------------+
The “triggering event” for Luper's PTSD claim, the request that he witness the autopsy of his friend, occurred in January 2010.
In ruling on Luper's claim, the Board made numerous findings of fact regarding Luper's medical history, focusing primarily on his history of alcohol abuse. The Board found:
• Dr. Bharati opined that Luper's work as a fireman caused his PTSD and his disability, but Dr. Moore's letter did not link Luper's condition and disability to the performance of his duties as a firefighter.
• Luper's medical records showed that he had been abusing alcohol since he was a teen, before he came to work for the fire department.
• Luper's sick leave usage spiked in 2005 and remained consistently high for several years before the autopsy incident, which Luper identified as the key event precipitating his PTSD.
The Board denied Luper's claim, stating:
“On the facts before it, the Board is unable to reasonably conclude that the applicant's condition, including any presently existing condition of PTSD, was actually caused by the applicant's job activities as opposed to the emotional abuse and family problems he has suffered, his long history of alcohol abuse, and the medical and family problems he has developed secondary to his longstanding alcohol abuse and dependency.”
Referring to § 19 of Charter Ordinance 215, the Board concluded that Luper did not prove that his incapacity was a
“ ‘physical or mental incapacity resulting from external force, violence, or occupational disease occasioned by an Act of Duty as a Police or Fire Officer, imposed by the ordinance or rules and regulations of the City, or any other Disability, which may be directly attributable to the performance of an Act of Duty.’ “
Luper appealed the Board's decision to the district court, which affirmed the Board. Luper's appeal from the district court now brings the matter before us. We review the Board's decision as though the initial appeal had been made directly to us rather than to the district court. See Butler v. U.S.D. No. 440, 244 Kan. 458, 464, 769 P.2d 651 (1989). In our review, we are limited to determining whether the “Board's decision was within its scope of authority, was substantially supported by evidence, or was fraudulent, arbitrary, or capricious.” Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 270, 241 P.3d 15 (2010).
Luper asserts three claims on appeal. First, he claims the Board's decision was not supported by substantial evidence because it disregarded Dr. Bharati's uncontroverted medical opinion of causation in favor of “mere speculation.” Second, Luper claims the Board acted arbitrarily by refusing to seek out additional medical evidence on Luper's medical condition. Third, Luper claims the Board erroneously required that Luper's traumatic experiences at work be the sole cause of his disability in order to justify an award.
Neither party disputes that Luper suffered from alcoholism, which predated his employment as a firefighter. But under the City's ordinance, a condition such as alcoholism or PTSD need not be the sole cause of a service-connected disability. The disabling condition need only be “directly attributable to the performance of an Act of Duty.” In its appellate brief, the Board concedes that it does not argue that there must be evidence that Luper's PTSD was the sole cause of his disability. Rather, the Board argues that Dr. Bharati's opinion on causation is flawed because he attributes PTSD as the cause of Luper's disability out of the “universe of problems” Luper experienced. In making this argument the Board ignores Dr. Bharati's conclusion in his letter to the Board that Luper's “diagnosis is posttraumatic stress disorder and alcohol dependence. These are pretty much the cause of his disability.” (Emphasis added.)
Under § 19 of Charter Ordinance 215: “ ‘Disability’ means total inability to perform permanently the duties of the position held by the Member at date of Disability due to a physical or mental incapacity resulting from external force or violence or disease.” Dr. Bharati and Dr. Moore both opined that Luper is permanently disabled from working as a firefighter. In its findings of fact, the Board did not find that Luper does not suffer from PTSD. Rather, it concluded that the facts do not establish that “any presently existing condition of PTSD was actually caused by the applicant's job activities” as opposed to other causes such as his alcohol abuse.
Thus, the issue for the Board was whether Luper's PTSD was a service-connected disability occasioned by an “Act of Duty”; that is, by an act performed by Luper within the scope of his duties at the fire department which involve “special risks not generally assumed by a citizen in the ordinary walks of life, for the purpose of protecting life or property, including any act of heroism as a Member.” Luper described a number of traumatic events associated with his work. These included incidents in which he administered CPR to a child who drowned, administered CPR to a child with a debilitating disease, administered CPR to a man long enough for his family to say goodbye, engaged in car wreck extractions, saw a woman placed in a body bag who still had a pulse, attended autopsies of fire victims, and was asked to witness the autopsy of his close personal friend and mentor. These were all incidents of a kind not experienced by the average citizen. For the most part, they occurred in the course of protecting life or property.
But Luper's claim does not set forth a simple application of the standard, such as a claim that when, in the course of extinguishing a fire, a firefighter is struck on the head with a burning timber and suffers a disabling brain injury that ends the firefighter's career. Here, Dr. Bharati characterized PTSD as a chronic and delayed onset disorder. He attributes it to the cumulative effect of “a lot of traumatic events while he was working as a fireman.” Dr. Bharati's medical records indicate that Luper had been told that he had failed to report any of the traumatic incidents within 120 days, as required, and that it would be difficult to prove a service-connected disability. But incident-reporting requirements are inconsistent with the very nature of a delayed onset disorder such as PTSD. It would be fanciful to expect a firefighter with no present symptoms of a psychological disorder to report a traumatic incident he or she participated in or witnessed in the expectation that someday the cumulative effect of this and similar incidents may mature into PTSD.
Luper's claim is also complicated by the fact that it does not arise in the familiar trial-like context of cases our courts deal with on a daily basis. Rather than being a disinterested tribunal ruling on the competing claims and arguments of adverse parties, the Board here sat as trustee-administrators of a retirement system in which Luper was a vested party and who probably contributed, in one form or another through wage concessions or direct contributions, to the disability and retirement funds administered by the Board. The Board did not oversee the competing claims and defenses of adverse parties. Luper was not represented by counsel. We were told in oral argument that the Board's counsel was present at the hearing merely to advise the Board on procedural issues or matters of law that might arise during the hearing. The Board's task was to determine if Luper was entitled to disability benefits on account of PTSD related to his work as a firefighter. In performing this task the Board had at its disposal the ability to have Luper examined by a doctor of its choice in order to obtain an expert opinion on this issue.
The Board had the uncontradicted medical opinion of Dr. Bharati that Luper had PTSD caused by traumatic events he experienced as a firefighter. Dr. Bharati also opined that these traumatic events also caused Luper's alcohol abuse. According to Dr. Bharati: “I do think he meets criteria for [PTSD] because he suffered a lot of traumatic events while he was working as a fireman, ... and this caused a lot of anxiety and depression in him and resulted in self-medicating and alcoholism.” But Luper's medical records indicate that Luper's alcohol abuse began and progressed long before he came to work for the fire department. Apparently based only upon this, the Board rejected Dr. Bharati's expert opinion on the cause of Luper's PTSD and concluded, without any supporting medical testimony, that the more probable cause for Luper's PTSD was “emotional abuse and family problems he has suffered, his long history of alcohol abuse, and the medical and family problems he has developed secondary to his longstanding alcohol abuse and dependency .” In other words, the Board determined on its own that whatever PTSD Luper had was caused by his alcoholism and by outside factors caused by his alcoholism. We find no medical opinion supporting this.
Luper does not claim he is disabled from alcoholism brought on by his exposure to traumatic events as a firefighter. He claims he suffers from PTSD. Thus, the issue is whether Luper has work-induced PTSD, not work-induced alcohol dependency. Dr. Bharati stated that work-related traumas brought on Luper's alcohol dependency when, in reality, Luper's alcohol dependency predates exposure to traumas associated with his employment as a firefighter.
Dr. Bharati's opinion on the cause of Luper's alcoholism is wholly irrelevant to the question of the cause of Luper's PTSD. If the Board found Dr. Bharati's error on this irrelevant issue to be fatal, Dr. Moore's letter opinion could not save the day for Luper because she expressed no opinion on causation. When asked by a committee member about this, Dr. Moore simply deferred to Dr. Bharati who had a longer doctor-patient relationship with Luper and was a specialist in the treatment of substance abuse, which Dr. Moore was not.
In rejecting Dr. Bharati's PTSD causation opinion apparently on the wholly irrelevant issue of the cause Dr. Bharati attributed to Luper's alcohol abuse, the Board threw the baby out with the bathwater. The Board had the option of contacting Dr. Bharati for clarification or getting another expert opinion. It did neither.
We have no indication that the Board members were trained in medicine. Consequently, they should have been wary of substituting their lay opinions on matters of specialized knowledge for which there is no conflicting evidence in the record. See Strickland v. Harris, 615 F.2d 1103, 1110 (5th Cir.1980) (holding that administrative law judge in a supplemental Social Security income benefits case cannot arbitrarily disregard uncontroverted medical evidence of causation); Smolen v. Chater, 80 F.3d 1273, 1285–88 (9th Cir.1996) (holding the same for Social Security disability proceedings); Angus v. Second Injury Fund, 328 S.W.3d 294, 303 (Mo.App.W.D.2010) (holding the same in a case involving disability resulted from the combined effect of rheumatoid arthritis and osteoarthritis); see also Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 151–52, 1205 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (holding the same for judgments as a matter of law).
The Board cites Timmons, Administrator v. McGaughey, 193 Kan. 171, 172, 392 P.2d 835 (1964), for the proposition that conflicting medical evidence does not defeat the Board's decision. In Timmons, a Wichita firefighter claimed he was permanently disabled by a heart condition that was aggravated by his work as a firefighter. The Board denied the claim, and the claimant appealed to the district court. The district court remanded to the Board for further proceedings. On remand, the Board appointed a panel of three doctors to serve as a medical advisory panel to the Board. After hearing from the doctors, the Board again denied the claim. On review, the Supreme Court observed that “the Board went to great length in seeking medical advice and ... appointed a three-man medical panel ... to examine the plaintiff and his medical records.” 193 Kan. at 179. Two of the three panel members were of the opinion that any disability the plaintiff sustained was not connected to his work as a firefighter.
In Timmons there was expert medical testimony to support the Board's finding that the plaintiff's disability was not service connected. To the contrary, in our present case there has been no medical opinion expressed that Luper's debilitating condition is not job related. But there is undisputed evidence that Luper's PTSD was caused by the cumulative effect of his exposure to traumatic work-related events. The Board was not free to arbitrarily disregard this uncontradicted expert medical opinion. Its apparent rationale for rejecting Dr. Bharati's opinion was his opinion on the cause of Luper's alcoholism, not his PTSD.
Under Charter Ordinance 215, the Board may appoint specialists or physicians to seek additional medical advice for questions that arise during the consideration of a disability claim. It is not necessary for the Board to seek an outside medical opinion in every case. But here, given the Board's apparent rationale for rejecting Dr. Bharati's opinion, we hold that the Board should have exercised its right under the ordinance to seek further expert medical guidance before rejecting Luper's claim.
There has developed an extensive body of federal law regarding the administration of disability and group health insurance policies under the Employee Retirement Income Security Act of 1974, (ERISA) 29 U.S.C. § 1001 et seq. (2006). We do not have so extensive a body of law to draw upon in considering retirement and disability plans such as set up for firefighters in Wichita. But decisions relating to ERISA plans can provide some general guidance for us.
In Shutts v. First Unum Life Ins. Co., 310 F.Supp.2d 489, 500 (N.D.N.Y.2004), the court determined that the plan administrator was arbitrary and capricious in failing to properly investigate the claim before declaring that the claimant was ineligible for benefits for his organic brain syndrome, a form of dementia.
In Caldwell v. Life Ins. Co. of North America, 287 F.3d 1276, 1282 (10th Cir.2002), the plan administrator ignored evidence that was relevant to her decision, based her decision on a “skewed reading” of Caldwell's medical records, and misconstrued Caldwell's testimony in reaching her decision. Thus, the administrator's decision was arbitrary and capricious. 287 F.3d at 1282–83.
In Smith v. Continental Cas. Co., 450 F.3d 253, 263–64 (6th Cir.2006), the plan administrator referred the employee's disability claim and the employee's accumulated medical records to a rheumatologist employed by a medical review company to conduct “peer review.” The rheumatologist failed to consult with the claimant's primary care physician before rendering his opinion on the claim, and the plan administrator did not order an independent medical examination of the claimant, which it had the authority to do. The Sixth Circuit Court of Appeals determined that the rheumatologist could have gained additional information by conferring with the primary care physician and by ordering an independent medical examination of the claimant. The court concluded that, under the circumstances, the failure to confer with the primary care physician and the failure to obtain an independent medical examination of the claimant rendered the administrator's decision arbitrary and capricious, requiring the court to remand the claim to the plan administrator. 450 F.3d at 263–64.
In its letter to Luper memorializing the Board's ruling on his claim, out of the Board's 26 numbered paragraphs, 16 paragraphs relate to Luper's medical conditions as reported in medical records (6, 7, 9–20, 23, and 24). Of those 16 paragraphs, 14 relate to Luper's alcohol abuse. Only two paragraphs, those referring to the letters from Dr. Bharati and Dr. Moore, refer to PTSD. Dr. Bharati finds that Luper suffers from PTSD caused by work-related traumas. Dr. Moore also finds that Luper suffers from PTSD but does not ascribe its cause. The Board rejected Dr. Bharati's opinion out of hand and did not follow up with Dr. Moore.
The Board acknowledges that a disability cause need not be the sole cause. We find no expert medical opinion evidence that Luper does not have PTSD, as Drs. Bharati and Moore stated; nor do we find expert medical opinion evidence that Luper's PTSD was caused by his alcoholism and not his exposure to traumatic events at work. Yet the focus of the Board in its analysis is exclusively on Luper's alcoholism, except for the two references to the expert medical opinions of Luper's treating doctors, which the Board rejected.
With the growing concern for the mental conditions of our military personnel returning from the stress and trauma of foreign wars, PTSD has become a relatively familiar concept to many Americans. But our common lay understanding of this disorder is neither deep nor precise. In his letter opinion, Dr. Bharati says that Luper meets the criteria for PTSD but does not specify those criteria. He mentions in passing that PTSD is “chronic and delayed onset” but does not expand on those concepts. The Board noted that Dr. Moore also found that Luper “is permanently disabled as a result of alcoholism, depression with anxiety and PTSD.” While a member of the screening committee apparently made some inquiry of Dr. Moore, the Board made no inquiry of Dr. Moore as to the cause of Luper's PTSD.
Before acting on Luper's claim, the Board had the duty to seek further information on the nature of PTSD, its cause and symptoms, and the temporal relationship between traumatic events and its onset. Having rejected the opinion of Dr. Bharati based on his analysis of the cause of Luper's alcoholism, not on Dr. Bharati's analysis of the cause of Luper's PTSD, the Board needed to question Dr. Bharati about his findings, to seek out an independent psychiatric evaluation and report of Luper's disability claim, or both.
Because the Board arbitrarily and capriciously rejected the expert medical opinion of Dr. Bharati without seeking further medical information on Luper's disability and its cause and without exercising the option of obtaining an independent medical examination of Luper to determine his condition and its cause, we must reverse and remand this case to the district court with directions that it remand Luper's application to the Board for further proceedings consistent with this opinion.
Reversed and remanded with directions.