Morse v. Emps. Ret. Sys. of Providence

• Decision Date: 06 June 2016
• Docket Number: No. 2013–252–M.P.,2013–252–M.P.
• Citation: 139 A.3d 385
• Parties: Michael MORSE v. EMPLOYEES RETIREMENT SYSTEM OF the CITY OF PROVIDENCE.
• Court: Rhode Island Supreme Court

139 A.3d 385

Michael MORSE

v.EMPLOYEES RETIREMENT SYSTEM OF the CITY OF PROVIDENCE.

No. 2013–252–M.P.

Supreme Court of Rhode Island.

June 6, 2016.

Joseph F. Penza, Jr., Esq., John D. Meara, Esq., Warwick, for Petitioner.

Kenneth B. Chiavarini, Esq., for Respondent.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

FLAHERTY

, Justice, for the Court.

This case came before the Supreme Court for oral argument on March 30, 2016, pursuant to a petition for a writ of certiorari filed by the petitioner, Michael Morse. In his petition, Morse sought review by this Court of a decision of the Retirement Board of the Employees Retirement System of the City of Providence (the board) dated July 24, 2013. In its decision, the board denied Morse's application for an accidental disability pension. Morse argues that the decision should be quashed because it was based solely on the fact that Morse did not satisfy the board's self-imposed “unanimity rule,” requiring that all three physicians who examined Morse agree that the applicant was permanently disabled as a result of a work-related injury. For the reasons stated herein, we quash the decision of the board, and remand the case for further factfinding.

Facts and Travel

The petitioner is a long serving fire-rescue captain on the Providence Fire Department, who has been employed by the city since August 5, 1991. On October 11, 2012, petitioner submitted an application for accidental disability retirement, claiming that he was disabled by a work-related injury that occurred on August 10, 2012, when, after responding to an EMS call, he injured his back lifting a patient at Rhode Island Hospital. It is significant that petitioner's medical records reveal that, during the course of his career, he suffered from three separate work-related injuries; the first incident occurred on September 21, 2009, and the second incident on October 14, 2011. Each of these injuries occurred while petitioner was working, involved injuries to his lower back, and resulted in petitioner being placed on “injured on duty” (IOD) status for some period of time.

After the second reported injury, petitioner's treating physician recommended that he cease heavy lifting at work, but he was nonetheless released to work. After the third injury, a physician at Rhode Island Hospital advised that he not return to work until he was feeling better and recommended that he see a spine specialist for a cortisone injection. The petitioner presented to Dr. Katherine Williams, at the Brain and Spine Neurosurgical Institute. She determined that petitioner was not able to return to work and that he could not perform the duties of a firefighter. Since his most recent injury, petitioner has not returned to work and has remained on IOD status for a period approaching four years.

Pursuant to the Providence Code of Ordinances, petitioner was evaluated by three independent medical examiners (IMEs), Mary L. Lussier, M.D., Norman M. Gordon, M.D., and Thomas F. Morgan, M.D. Doctor Lussier examined petitioner in early 2013 and reviewed his medical records. She rendered a diagnosis of “[c]hronic low back pain with past brief radicular symptoms in both legs, with degenerative disc disease

in the [lumbosacral] spine most pronounced at L4/5.” In Dr. Lussier's opinion, petitioner was permanently partially medically disabled, and his disability was causally related to the most recent work-related injury, which occurred on August 10, 2012. She further opined that, although he had experienced other work-related injuries in the past, the last injury “made the most definitive change in his work status.” Due to his work-related injury, “[h]e can perform tasks that do not include bending and lifting and that do allow for him to frequently change position,” but he was unable to return to his previous duties.

Doctor Gordon examined petitioner in March 2013. He also reviewed the medical records and conducted a physical exam, finding that “[h]e has limited range of motion of the back, particularly in flexion, which causes him a lot of pain. * * * Straight leg raising was accompanied by discomfort in the back, but he was able to go through at least 45 degrees.” It was Dr. Gordon's opinion that

“this gentleman is disabled from his current duties as a fire rescue captain and although I cannot point to a single injury or accident that has been responsible for this, it clearly is an accumulation of the multiple back injuries that he has had, documented at least since 2009, and probably before that as well.”

He concluded that “[u]nfortunately, these injuries and persistent back pain impact fully on what he can do as a result of the performance of his very strenuous, heavy activities as part of a firefighting rescue captain. I do not believe that there is any light work available in this category * * *.”

The third examiner, Dr. Morgan, came to a different conclusion. Although he diagnosed petitioner with multilevel degenerative disc disease

and facet joint arthritis of the lumbar spine, it was his opinion that petitioner's chronic low back pain showed no signs of permanent injury from the lifting incidents on or before August 10, 2012. He further opined that petitioner “does not qualify for a work injury impairment to be considered for accidental disability” and that “[t]he prognosis for his chronic back pain is good and based on today's examination, there are no restrictions or limitations that should prevent him from returning to work.”

The petitioner attended a hearing on June 26, 2013, before the board's medical subcommittee, at which his attorney was permitted to argue on his behalf. The subcommittee chair informed petitioner about the procedure of the subcommittee, explaining that they were going to “hear from the doctor, if you have any questions you can question the doctor through me and then we may have some questions and then we'll discuss it among ourselves.” Doctor Guy Geffroy, medical adviser to the board, said that he had reviewed petitioner's medical records and the IME reports, but said that he was not a member of the board. Dr. Geffroy advised the subcommittee that they should not grant petitioner accidental disability benefits because only one of the IMEs concluded that petitioner was disabled as the result of a work-related injury. He explained that Dr. Gordon found that his disability was the result of multiple injuries, and “he interprets proximate result of an accident as including multiple back injuries, which our Ordinance does not. So, I have to conclude that if you analyze, carefully analyze what he did really think, he also is not in favor of this meeting the criteria of an accidental disability retirement.”

Relying on this Court's decision in Pierce v. Providence Retirement Board, 15 A.3d 957 (R.I.2011)

, the Senior Assistant City Solicitor then informed the subcommittee that a work-related disability indeed could be proximately caused by several on-the-job incidents. The solicitor then asked Dr. Geffroy if that would change his recommendation. He responded, “No, it doesn't. It's beside the point because one of the consultants considers him not to be disabled. So, we don't have unanimity regardless.” After further discussion between the subcommittee members and the attorneys on the impact of the Pierce decision on petitioner's claim, Dr. Geffroy said, “It's [a] moot point because one of the consultants doesn't find him to be disabled.”

The city solicitor then addressed petitioner's argument that, in view of the fact that Dr. Morgan's evaluation was so different from the other two IMEs, he should be granted the opportunity to be examined by another physician. The city solicitor advised the subcommittee that it had granted such a request in the past, saying “[I]t's not unprecedented that we've actually disqualified an IME or sought the advice of another physician.” The petitioner's attorney then argued that the subcommittee should either grant petitioner a new examination or reconsider its adherence to the unanimity rule. Although petitioner's counsel conceded that the board had been applying the rule for several years, he argued that it was not set forth in § 17–189(6) of the ordinance that addresses accidental disability pension status.

With respect to the unanimity rule, the city solicitor advised the subcommittee that the issue had come up several years before and the board decided that, even though the unanimity rule was not explicitly required by the ordinance, the city council, in 1998, had removed language requiring a mere majority of the IMEs to agree on accidental disability, thus implicitly approving the board's employment of the unanimity rule. The subcommittee chairman, seeking clarification, then had the following exchange with the city solicitor:

“[Chairman]: Okay. Just quickly, this board can vote with two doctors and one against, is that correct? We don't need, there's no requirement that we have unanimity, that['s] our policy and that's what we've done.

“[City Solicitor]: This board has adopted the unanimity policy and clearly if we want to change that or go in a different direction it's—

“[Chairman]: If we have the votes to pass this it wouldn't be illegal would it?

“[City Solicitor]: No, no. But I—

“[Chairman]: So, I think his argument that says that we—that—I think that his argument falls short to a certain extent when he says that this board requires it, although we may require it as a policy we don't—we can vote—

“[City Solicitor]: I can tell you—

“[Chairman]: —different.

“[City Solicitor]: —being on the board since probably, since 1998, there have been instances where there's been two out of three and the board's granted it—

“[Chairman]: Right.

“[City Solicitor]: —and discounted the IME of a doctor that said the individual wasn't totally, permanently disabled.

“[Chairman]: Right. So, his argument, although I understand his argument, is not—it assumes that we can't do it, which I believe we can do it.

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