Hubbel v. FIRE/POLICE RETIREMENT

• Decision Date: 27 May 2010
• Citation: 995 A.2d 1082,192 Md. App. 742
• Parties: Diane HUBBEL v. BOARD OF TRUSTEES OF the FIRE & POLICE EMPLOYEES' RETIREMENT SYSTEM OF the CITY OF BALTIMORE.
• Court: Court of Special Appeals of Maryland

995 A.2d 1082

192 Md. App. 742

Diane HUBBEL v. BOARD OF TRUSTEES OF the FIRE & POLICE EMPLOYEES' RETIREMENT SYSTEM OF the CITY OF BALTIMORE.

No. 2836 September Term, 2008.

Court of Special Appeals of Maryland.

May 27, 2010.

Paul D. Bakman (Emily C. Malarkey, on the brief), Baltimore, MD, for Appellant.

Herbert Burgunder, Jr., and William R. Phelan, Jr. (George A. Nilson, on the brief), Baltimore, MD, for Appellee.

Panel: DEBORAH S. EYLER, MATRICCIANI, LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

RODOWSKY, Judge.

The appellant, Diane Hubbel, is the widow of Donald W. Hubbel (Cpt. Hubbel), who was a captain in the Baltimore City Fire Department. Appellant seeks line-of-duty death benefits from the appellee, the Board of Trustees of the Fire & Police Employees' Retirement System of the City of Baltimore (the Board). Appellant is aggrieved by the denial of her claim by the Board's Examiner and the affirmance of that decision by the Circuit Court for Baltimore City.

Cpt. Hubbel died on February 1, 2008, at his home in Bel Air, Harford County, Maryland. He suffered a fatal heart attack, at age forty-two, almost immediately after he had been running on a treadmill in his basement. The Baltimore City Code (2009), Article 22, "Retirement Systems," § 33(l)(11)(iii)(A) (the Ordinance) provides that, if a claim against the Board is one for line-of-duty death benefits, the Board's hearing Examiner shall determine "whether the death arose out of and in the course of the actual performance of duty." Appellant's claim is based upon the circumstances described below.

Cpt. Hubbel was a member and an assistant team leader of the fourteen-member Special Rescue Operations Team (the Team) of the Baltimore City Fire Department. As described by the leader of the Team, Lt. Scott Michael Berbach, the Team responds to events that are above the daily duties of a normal firefighter, e.g., high-rise building fires, swift water rescues, and trench and building collapses. Even when not on duty at his regularly assigned station, Cpt. Hubbel, as a member of the Team, was on call twenty-four hours a day, seven days a week, unless excused.

Each member of the Team was required annually to pass a physical fitness examination which consisted of a one mile run, sit ups, and push ups. To pass the running portion of the test, a forty-two year old was allowed nine minutes. If a member of the Team failed the fitness test, the test could be retaken within six months. Any firefighter who again failed the fitness test could not remain on the Team. That person nevertheless continued his or her regular duties in the Department, but would not be paged for Team responses.

Members of the Team are chosen upon application, interview, and "eventually training and the physical fitness assessment." Members sign a written pledge to follow the policies for training and to be "physically prepared to do your job."

The City of Baltimore does not provide any physical fitness trainers, equipment or facilities for Team members. They are expected to maintain fitness on their own.

At the time of his death on February 1, 2008, Cpt. Hubbel was five feet ten inches in height and weighed 224 pounds. He had been running on his treadmill in preparation for his annual physical on February 8, 2008, and he had completed one mile in about eleven minutes. After cooling down, he got off of the treadmill, grabbed his chest, and fell over. He was pronounced dead on arrival at Upper Chesapeake Medical Center.

A postmortem examination of Cpt. Hubbel was performed the next day by a State Medical Examiner. Examination of Cpt. Hubbel's cardiovascular system revealed that "there was 80% calcified atherosclerotic stenosis of the left main coronary artery, 70% calcified atherosclerotic stenosis of the proximal left anterior descending coronary artery and 95% stenosis of the right coronary artery." The Medical Examiner certified the cause of death to be "Hypertensive Atherosclerotic Cardiovascular Disease."

In her application for line-of-duty death benefits, appellant described the circumstances of Cpt. Hubbel's death to be, "training for an upcoming drill given by BCFD." In response to the claim, the Board assembled the adult lifetime medical history of Cpt. Hubbel, consisting of approximately 190 pages. It did not include the report of the emergency medical technicians who first responded or the post-death records from Upper Chesapeake Medical Center. Among the medical records was the report of a cardiac consultation in March 2006, following a heart scanning which revealed significant calcification, mostly in the distribution of the left anterior descending artery. That report included Cpt. Hubbel's family history. His mother had coronary artery bypass grafting surgery at age thirty-two, had a heart transplant at age forty-nine, and had died at age fifty-six of lung cancer.¹ Cpt. Hubbel's father was alive and well in his sixties. At age fifty-nine he had had coronary artery bypass grafting surgery. The cardiologist's impression of Cpt. Hubbel was: "1. Abnormal heart scan. 2. Hypertension. 3. Hyperlipidemia."

At the hearing before the Examiner, each party introduced a written medical report which included an opinion. Dr. Jeffrey D. Gaber, M.D., FACP, who was engaged by the appellant, reported that he had reviewed the Fire Department records on Cpt. Hubbel, his training, the circumstances of his death, the autopsy report, and the Manual of Procedure Policy for the Team.² He stated that he was "unaware of the family history or any other medical issues." He concluded:

"Based on the information noted above, it is my opinion to a reasonable degree of medical certainty that the highly stressful nature of his career as a Baltimore City firefighter played a considerable role in the development of coronary artery disease. The coronary artery disease subsequently caused a massive heart attack, leading to his death. Furthermore, the training program that he had undertaken at home in order for him to meet the requirements of the Special Rescue Operations Team, played a significant role in the proximate cause of his death from an acute myocardial infarction."

The Board presented a report from John Parkerson, M.D., M.S. His report synopsised the medical records beginning in 1998. Dr. Parkerson concluded:

"Medical records on this 42-year-old male fire captain had been reviewed. There is no medical record about the exact circumstances of his death, but apparently he died while training in the fire department. The cause of death was atherosclerotic coronary artery disease. He had multiple non-occupational risk factors including family history, obesity, and hyperlipidemia. Early in the medical records, it was noted that he smoked an occasional cigar, but there is no further mention of his smoking in the succeeding medical records. The cardiologist noted a lack of exercise, but apparently he had an active job.

"His cardiac condition was based on his non-occupational risk factors. Regardless of his occupation, a coronary death was a predictable event. None of the providers recommended changing his job due to an increased cardiac risk, or attributed his cardiac condition to his occupation or workplace activities.

"In my medical opinion, his demise/incapacity was not the result of an injury arising out of and in the course of his employment. He had non-occupationally related coronary artery disease. The medical records do not support a causal connection to the performance of his job duties.

"My conclusions are based upon a chart review of the provided records and are made with a reasonable degree of medical certainty. Please do not hesitate to contact me when more medical records are obtained or if further questions arise."

The Examiner found in favor of the Board and rested her decision on two grounds. She held that Cpt. Hubbel's "actions in exercising on his treadmill at home while off duty do not constitute the actual performance of his duties as a firefighter." This conclusion was predicated on the language of the Ordinance requiring that the injury arise in the course of the "actual performance of duty." The Examiner reasoned that "actual performance of duty" required a stricter interpretation than that applied in Workers' Compensation Act cases to the requirement that an injury be "in the course of employment." Maryland Code (1991, 2008 Repl.Vol.), § 9-101(b)(1) of the Labor and Employment Article (the Act). The Act defines "accidental personal injury" to mean "an accidental injury that arises out of and in the course of employment."

In addition, the Examiner relied on an alternative ground of decision. She said there was an issue of medical causation, namely, whether the claimant had "met the burden of proof to show that the exercise itself caused the heart attack." On this issue the Examiner concluded:

"In this case the Claimant had significant risk factors for heart disease. He was overweight, had high cholesterol and had a strong family history of premature coronary artery disease on the part of both his mother and father. I find the evidence of non-occupational factors to be so strong in this case, that it lends much greater credibility to Dr. Parkerson's opinion that the Claimant had non-occupational coronary artery disease, than to Dr. Gaber's opinion that occupational stress played a `considerable role' in the development of the coronary artery disease. Also, I find Dr. Gaber's opinion, both regarding the causation of the underlying coronary artery disease, and the proximate cause of death, to be less than reliable because it was rendered without having the benefit of the significant family and personal history."

From the denial of line-of-duty death benefits, the appellant sought judicial review in the Circuit Court for Baltimore City. That court affirmed, relying on the Examiner's "actual performance of duty" analysis.

From that judgment, this appeal was timely...