Terranova v. Board of Trustees of Fire and Police Employees Retirement System of Baltimore City

• Decision Date: 04 December 1989
• Citation: 81 Md.App. 1,566 A.2d 497
• Parties: Dante TERRANOVA v. BOARD OF TRUSTEES OF the FIRE AND POLICE EMPLOYEES RETIREMENT SYSTEM OF BALTIMORE CITY. 386 Sept. Term 1989.
• Court: Court of Special Appeals of Maryland

Page 1

81 Md.App. 1

566 A.2d 497

Dante TERRANOVA v. BOARD OF TRUSTEES OF the FIRE AND POLICE EMPLOYEES RETIREMENT SYSTEM OF BALTIMORE CITY.

386 Sept. Term 1989.

Court of Special Appeals of Maryland.

Dec. 4, 1989.

Benjamin Lipsitz, Baltimore (John E. Sibrea and Sibrea and Bloom, on the brief), Towson, for appellant.

John J. Carlin (Neal M. Janey and William R. Phelan, Jr., on the brief), Baltimore, for appellee.

Argued before WILNER, ALPERT and CATHELL, JJ.

CATHELL, Judge.

The question presented on this appeal is whether the Circuit Court for Baltimore City erred in affirming the decision of the Panel of Hearing Examiners (Panel) of the Board of Trustees of the Fire and Police Employment Retirement System of the City of Baltimore (Board) that the appellant was fit to return to his duties as a police officer in the Baltimore City Police Department. ¹ The circuit court found that the Panel decision was supported by substantial and competent medical evidence and "affirmed" the Panel examiner. The only issue now raised by appellant is that the trial court erred in so finding.

The Facts

In 1971 appellant was found by the Board ² to have suffered a work-related mental disability and was placed on disability retirement. He was periodically examined from that date through 1979. ³ Until 1981 he had consistently been found to be unfit for reemployment.

In 1981 he was, for the first time, examined by Dr. Potash, a psychiatrist retained by the Panel. Dr. Potash reported to the Board, that for the reasons stated in his report, the appellant was then fit to return to full employment as a police officer. Pursuant to the statute the police department subsequently offered to place the appellant back on police duty, stating that the offer was:

[C]ontingent upon the conduct of a physical and psychological examination to insure your capability to perform full police duties.

Upon determination by departmental physicians that you are ... psychologically qualified, a date for your return to duty will be established.

Two police department physicians, Dr. Teitlebaum and Dr. Wilfson, after reviewing the available records and examining the appellant, diagnosed appellant as having a paranoid psychosis with paranoid preoccupation in respect to the police department. They reported to the commissioner of the department that the appellant was completely disabled for any employment with the police department.

The retirement statute provides that when the Panel's and the department's physicians do not concur, the Panel hearing examiner must schedule and hold a hearing to resolve the conflict and to "determine the fitness of the retiree to perform his former duties." The Panel then submits its determination to the department involved. If, thereafter, an employee who has been determined to be fit refuses to accept an offer of employment, "all rights in and to his pension shall be revoked.... ⁴"

The first hearing before the Panel was held on March 29, 1982, by Examiner O'Brien. Appellant was then determined to be fit to resume his duties as a police officer. Appellant appealed to the circuit court. That court, apparently upon agreement of the parties, remanded the case for additional testing and to permit the appellant to undergo certain psychological testing he had earlier declined to take.

The rehearing was held in April of 1986. The hearing examiner then again determined that the appellant was fit to resume police duties "as earlier determined on June 9, 1982." On May 16, 1986, an appeal was taken to the circuit court. There the case languished for two and a half years until February of 1989, when Judge Ward rendered his decision.

The Findings

The issue before the Panel was whether the appellant was then fit to resume his duties as a police officer. The record reflects that there was conflicting medical evidence on that issue. At the 1982 hearing the hearing examiner made certain findings of fact:

--That in 1975 the appellant began employment with the District Court and was at the time of the hearing a District Court constable responsible for serving civil process; that he had been employed full time in that capacity and that in the last year prior to the hearing the appellant had earned $16,000 from that occupation. The examiner also found that the District Court had rated appellant's performance as satisfactory. The examiner found that the appellant demonstrated a work capacity of a well individual. He further found that it would be unreasonable to determine that appellant continue to suffer from his initial 1971 illness and that the situation that precipitated that prior illness no longer existed.

--The examiner also found that he was most persuaded by the factual findings and medical conclusions of Dr. Potash; that the conclusion reached by Dr. Teitelbaum, the police department's physician, that appellant was not fit was made on the basis of information provided by the appellant, and that such information differed from the information appellant had given Dr. Potash; that Dr. Teitelbaum's report disclosed no knowledge or consideration of the appellant's employment history.

--The examiner further found that the appellant refused to submit to certain psychological testing requested by the Panel's examining physician, Dr. Potash.

Subsequent to the rehearing held after the circuit court remand, the hearing examiner, in addition to his original findings, found "that the appellant had undergone a psychological testing he had previously refused to take"; that some special features of the test were validity scales representing checks on carelessness, misunderstanding, and malingering; that if the scores on the test exceeded a certain value the record is considered invalid; and that the appellant's score far exceeded that specific level. That Dr. Potash, the Panel's physician, and Dr. Merrill, the appellant's treating physician, disagreed in their interpretation of the test results; that Dr. Potash was of the opinion that the appellant's test results indicate that appellant was attempting to make himself appear extremely ill and thus invalidate the test, and that Dr. Merrill was of the opinion that the test results were caused by the confused, disorganized or delusional state of the appellant.

The examiner further found that many of the appellant's current claimed complaints were only conveyed to Dr. Merrill, his treating physician, and to Dr. Teitelbaum, the department's physician, after Dr. Potash's 1981 report that appellant no longer suffered from a disabling psychiatric impairment. The examiner found an inconsistency in Dr. Merrill's testimony in that the doctor initially said that the appellant was being regularly treated by him in the two-year period prior to April 1981; that when he was asked to check his records, in light of the initial information furnished Dr. Potash by appellant, that appellant had not seen a doctor in almost two years, Dr. Merrill then changed his testimony to reflect he had not seen the appellant during that period; that during this two-year period with no treatment or medication the appellant performed his job efficiently and at a life style that was quite normal. The examiner further stated that in his opinion Dr. Merrill based much of his opinion on appellant's state of mind "primarily on what Mr. Terranova tells him"; and that the examiner had problems with the credibility of Dr. Merrill, arising at least in part from the inconsistency and on the bases used to formulate his opinion.

The examiner further found that the appellant had impressed the examiner by his ability to seek, find and perform successfully in significant employment positions. He had also impressed the examiner by his ability to testify clearly, succinctly and intelligently at both hearings.

The examiner then found that, as between the two medical opinions, i.e. Dr. Potash's and that shared by Dr. Merrill and Dr. Teitelbaum, Dr. Potash's conclusion was more persuasive. The examiner thus weighed conflicting evidence, assessing the credibility of the witnesses in the process.

The Law

The appellant first suggests that the retirement ordinance in effect when appellant retired may not have contained an explicit direction as to the nature and scope of judicial review of the Board's actions. He suggests that in such case, our review can be on a de novo basis instead of a substantial evidence basis citing Firestone Tire and Rubber Co. v. Bruch, --- U.S. ----, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). We decline to do as appellant suggests. We explain.

The Court of Appeals addressed this issue in 1945 in Heaps v. Cobb, 185 Md. 372, 45 A.2d 73 (1945), which also involved the Board of Trustees of the Employees Retirement System of Baltimore City. It stated at 379, 45 A.2d 73:

The appellant Board is one of those tribunals created by an ordinance which does not expressly provide for an appeal from its decisions, and, largely because of that omission, the appellant is claiming for its decision ... a finality which would place it [the agency] beyond the reach of the Court ....

At 380, 45 A.2d 73:

Where the statute ... makes no provision for judicial review, an implied limitation upon an administrative board's authority is that its decisions be supported by facts and that they be not arbitrary, capricious or unreasonable.

The doctrine is well illustrated in the review of this subject by ... these words: "The general rule ... is that their findings of fact are final if there is substantial evidence to support them. With respect to the issues of fact, the reviewing court examines the evidence taken by the administrative agency, not to re-weigh it, not to substitute the Court's judgment ..., but to determine whether the agency acted rationally, that is to say, that it did not arrive at its conclusion arbitrarily." [citations omitted]

The standard in Heaps has been followed consistently by the appellate courts of this State. The Heaps...