Board of Trustees v. Mitchell

KRAUSER, Judge. The principal issue before us is whether cancer, resulting from occupational hazards, can constitute an “injury” under Article 22, §§ 29-45 of the Baltimore City Code, 1976 Edition (“Retirement Act”). Our resolution of that issue is the first step in determining whether appellee, Deborah Mitchell, personal representative of the Estate of James C. Mitchell, Jr., 1 is ⁵ entitled to receive special disability pension benefits under the Retirement Act. The second and final step—the determination of whether appellee’s claim is barred by the statute of limitations—must await further proceedings below.

To obtain special disability benefits, Mitchell filed an application with the Board of Trustees for the Fire and Police Employees Retirement System of the City of Baltimore, appellant, claiming that pancreatic cancer, which had rendered him totally and permanently disabled, was the result of work-related hazards. In accordance with § 33(l) of the Retirement Act, an administrative hearing was held on Mitchell’s application. At that hearing, appellant agreed that Mitchell was “a hundred percent disabled from being a firefighter” and advised the hearing examiner that Mitchell was currently receiving ordinary disability benefits. 2 Thereafter, the examiner awarded Mitchell special disability benefits. Challenging that result, appellant filed a petition for judicial review in the Circuit Court for Baltimore City, claiming that the examiner had failed to make findings of fact as required by law.

The circuit court agreed and remanded the case with instructions for the examiner to do so. The examiner did and reaffirmed its earlier decision. Appellant then filed a second petition for judicial review. Following a hearing on that petition, the circuit court affirmed the decision of the examiner.

Appellant then noted this appeal. Appellant presents two issues for our review. They are: ⁶ I. Whether the circuit court erred in affirming the hearing examiner’s ruling that the term “injury” in § 34(e) of the Retirement Act, includes Mitchell’s cancer; II. Whether the circuit court erred in affirming the hearing examiner’s ruling that Mitchell’s request for a special disability pension was not barred by the five year statute of limitations in § 34(e) of the Retirement Act.

For the reasons that follow, we shall hold that cancer, caused by occupational hazards, can constitute an “injury” under § 34(e) of the Retirement Act. Unfortunately, that does not end the matter. Because the hearing examiner declined to determine whether Mitchell’s pancreatic cancer was a new cancer or the result of the spread of his much earlier esophageal cancer, we shall not at this time consider whether appellant’s claim is barred by the applicable five-year statute of limitations. Instead, we shall vacate the judgment below and remand this case so that a determination can be made as to whether the pancreatic cancer was a primary or metastatic cancer and whether, based on that determination, appellant’s claim is barred by the statute of limitations.

Facts Mitchell was a firefighter for the Baltimore City Fire Department from December 29, 1986, to April of 1998. During the last eight years of his service with that department, Mitchell’s principal responsibility was to create an opening in burning structures to allow gases, smoke, and toxins to escape so that other firefighters could enter with hose lines. In May of 1993, Mitchell was having difficulty swallowing. That led to the discovery of a cancerous tumor on his esophagus.

The tumor was surgically removed, and Mitchell returned to work, resuming his duties as a firefighter. That surgery appeared to have rid Mitchell of the cancer. Annual CAT scans in 1994, 1995, and 1996 seemed to confirm that fact. In October of 1997, however, Mitchell began experiencing back pain, dysphasia, and weight loss.

These symp ⁷ toms prompted exploratory surgery in April 1998, revealing an unresectable tumor in Mitchell’s pancreas. Mitchell applied for special disability benefits on September 8, 1998, alleging that he was disabled by pancreatic cancer. A hearing was held on that application before a hearing examiner of the Fire and Police Employees Retirement System. Following that hearing, the examiner issued a written decision, stating that Mitchell “established by the preponderance of the evidence that he was eligible and should receive Special Disability Retirement.” Appellant then filed a petition for judicial review in the Circuit Court for Baltimore City, alleging that the hearing examiner had failed to make findings of fact as required by law.

The Circuit Court agreed and remanded the case for the examiner to make those findings. On remand, the hearing examiner made the necessary findings and found once again that Mitchell was entitled to receive special disability benefits. The Hearing Examiner’s Decision Because the parties agreed that Mitchell was totally disabled by his pancreatic cancer, only two issues were before the examiner: whether Mitchell’s cancer was the result of an injury arising out of and in the performance of his job duties, and whether Mitchell filed his application for special disability benefits within five years of his injury, as required by the applicable statute of limitations. As to whether Mitchell’s pancreatic cancer constituted an injury under the Retirement Act, the hearing examiner simply wrote that “cancer of the esophagus and pancreas constitutes an injury.” No further explanation was given.

After summarizing the medical evidence presented, the hearing examiner found that the toxins to which Mitchell had been exposed as a fire fighter were the cause of his cancer. The examiner consequently concluded that Mitchell’s cancer arose out of and in the course of the performance of his firefighting duties. With respect to whether Mitchell’s application for special disability benefits was time-barred, the hearing examiner found that the application was timely filed, stating: ⁸ There is much debate as to whether the subsequent cancer of the pancreas was a continuation of the cancer of the esophagus or a new cancer. In the opinion of this Hearing Examiner that debate is irrelevant.

Prior to 1998 there was no injury to his pancreas. It was this injury to the pancreas that caused his disability. Therefore, the claimant did apply for Special Disability within the required five years of disability. Standard of Review In reviewing an administrative decision, such as the one before us, our role “is precisely the same as that of the circuit court.” Dep’t of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-04 , 641 A.2d 899 (1994).

We review the decision of the administrative agency itself, Ahalt v. Montgomery County, 113 Md.App. 14, 20 , 686 A.2d 683 (1996), and not the findings of fact and conclusions of law made by the circuit court. Consumer Protection Division v. Luskin’s, Inc., 120 Md.App. 1, 22 , 706 A.2d 102 (1998), rev’d in part on other grounds, 353 Md. 335 , 726 A.2d 702 (1999). We further note that under § 34(1) of the Retirement Act, a “final determination of the hearing examiner” is “presumptively correct” and it may not be disturbed on appeal unless it is “arbitrary, illegal, capricious or discriminatory.” In other words, our role “is limited to determining if there is substantial' evidence in the record as a whole to support the agency’s findings arid conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994). “In applying the substantial evidence test, a reviewing court decides ‘whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.’ ” Board of Physician Quality Assurance v. Banks, 354 Md. 59, 68 , 729 A.2d 376 (1999). Únlike a factual conclusion, however, a legal conclusion is not entitled to deference. Bozeman v. Disability Review Board of the Prince George’s County Police Pension Plan, 126 Md.App. 1, 5 , 727 A.2d 384 (1999). “When the ⁹ question before the agency involves interpretation of an ordinance or statute, our review is more expansive.

We are not bound by the agency’s interpretation.” Id. Discussion I. Appellant contends that the hearing examiner erred in holding that Mitchell’s cancer constitutes, an “injury” under § 34(e) of the Retirement Act. It claims that Mitchell’s cancer was not an injury under that provision,, because it was an occupational disease and because it did not occur “at a discrete point in time.” We begin our analysis with a review of the rules of statutory construction. ' “The cardinal rule of statutory interpretation is the ascertainment of legislative intent.” Langston v. Langston, 366 Md. 490, 507 , 784 A.2d 1086 (2001). “[I]n interpreting and determining legislative intent, we must look to the plain language of the enactment, while keeping in mind its overall purpose and aim.” Waters v. Pleasant Manor Nursing Home, 361 Md. 82, 103-04 , 760 A.2d 663 (2000). “ ‘The search for legislative intent begins, and ordinarily ends, with the words of the statute under review.’ ” Martin v. Beverage Capital Corp., 353 Md. 388, 399 , 726 A.2d 728 (1999). Where the words of the statute are clear and unambiguous, there generally exists no need to look beyond those words to determine the legislative intent.

Id. But where the statutory language is ambiguous, we will look to other sources, such as relevant case law and legislative history, to aid us in determining the legislature’s intent. Marsheck v. Board of Trustees of Fire & Police Employees’ Retirement System of City of Baltimore, 358 Md. 393, 403 , 749 A.2d 774 (2000). We now turn to the statutory provision at issue here: Section 34(e) of the Retirement Act.

That statutory provision specifies when a city employee is eligible for special disability benefits. It states: ; Any member who has been determined by the hearing examiner to be totally and permanently incapacitated for ¹⁰ the further performance of the duties of his job classification in the employ of Baltimore City, as the result of an injury arising out of and in the course of the actual performance of duty, without willful negligence on his part, shall be retired by the Board of Trustees on a special disability retirement. For any employee who became a member on or after July 1, 1979, any claim for special disability benefits must be filed within 5 years of the date of the member’s injury. Although the term “injury” is used in that and other sections of the Retirement Act, it is never defined.

We therefore turn to lay, legal, and medical lexicons for guidance. Webster’s Third New International Dictionary of the English Language (1976) defines “injury” as: la: an act that damages, harms, or hurts: an unjust or undeserved infliction of suffering or harm: WRONG ... 2: hurt, damage, or loss sustained.... Syn. INJURY, HURT, DAMAGE, HARM, and MISCHIEF mean in common the act or result of inflicting on a person or thing something that causes loss, pain, distress, or impairment.

INJURY is the most comprehensive, applying to an act or result involving an impairment or destruction of right, health, freedom, soundness, or loss of something of value.... Dorland’s Illustrated Medical Dictionary (28th ed.1995) defines “injury” as “harm or hurt; a wound or maim. Usually applied to damage inflicted to the body by an external force.” And Black’s Law Dictionary (7th ed.1999) defines “injury” as “Harm or damage.” The common thread running through these definitions is that “injury” can be broadly defined to encompass many different types of harm. None of them, we note, limits that term to an occurrence that happens “at a discrete point in time.” That observation, of course, is hardly dispositive of this issue.

But it does suggest the potential breadth of that term, a fact conceded by counsel for appellant before this ¹¹ Court. At the argument of this case, counsel agreed that a disease in its “broadest sense” could be an injury. We further note that the statute before us is a remedial piece of legislation. It is therefore to be interpreted liberally in favor of the injured party to achieve the remedial purposes of the act.

Marsheck, 358 Md. at 403 , 749 A.2d 774 . In other words, all things being equal, a broad interpretation of § 34(e) is favored over a narrow one. Apart from this broad principle of statutory construction, however, Maryland law offers little guidance on this issue. What caselaw that does exist on this subject is of questionable relevance.

Board of the Trustees v. Powell, 78 Md.App. 563 , 554 A.2d 440 (1989). Consequently, we turn to other jurisdictions for assistance. And in so doing, we note that other state courts, in interpreting similar pension statutes, have declined to so narrowly define an “injury” that it would exclude an illness. See Creighan v. Firemen’s Relief and Pension Fund Bd., 155 A.2d 844 , 397 Pa. 419 (1959) (holding that a fireman’s “tuberculosis of the respiratory system” was an injury where the statutory right to a pension was contingent upon the fireman being “injured in the line of duty and disabled through such injury”); State ex rel.

McManus v. Bd. of Trs. of Policemen’s Pension Fund, 119 N.W. 806 , 138 Wis. 133 (1909) (holding that a police officer’s pneumonia was an injury where the statutory right to retire was dependent on the condition that the policeman, “while engaged in the performance of his active duty,” “be injured” and found to be “permanently disabled”). Appellant insists, however, that Mitchell’s cancer was not an “injury” under § 34(e), but an “occupational disease.” In support of that claim, appellant cites Foble v. Knefely, 176 Md. 474 , 6 A.2d 48 (1939), a worker’s compensation case. In Foble , the issue before the Court of Appeals was whether the injuries an employee sustained to her knee over a lengthy period of time, while operating a machine at her place of employment, constituted an “accidental injury” or, as her employer contended, an “occupational disease” under the Maryland Worker’s ¹² Compensation Act (“MWCA”). 3 In the course of resolving that issue, the Court of Appeals defined “occupational disease” as an “ailment, disorder, or illness which is the expectable result of working under conditions naturally inherent in the employment and inseparable therefrom, and is ordinarily slow and insidious in its approach.” 4 Foble, 176 Md. at 486 , 6 A.2d 48 . In contrast, an “injury,” it stated, had “none of the characteristics of an occupational disease,” but was “associated in varying degrees with the elements of force, violence, and surprise ...” Id.

Consequently, Mitchell’s pancreatic cancer, appellant argues, was an “occupational disease” and not an “injury.” Foble , however, has little bearing on the instant case. Unlike the MWCA, the Retirement Act does not divide disabilities into two categories: “accidental injuries” and “occupational diseases.” Md.Code Ann. (1999 Repl.Vol. & 2000 Cum. Supp.), §§ 9-501 and 9-502 of the Lab. & Empl. Article; see also Means v. Baltimore Co., 344 Md. 661, 664 , 689 A.2d 1238 (1997) (“In Maryland, workers’ compensation encompasses two categories of compensable events: accidental personal injury and occupational diseases.”).

In fact, the Retirement Act does not even contain an occupational disease category. That Mitchell’s cancer may constitute an “occupational disease” under the MWCA is therefore not relevant. Moreover, we note that “while analogies to workmen’s compensation cases ¹³ are frequently helpful in pension cases, any analogy must be drawn keeping clearly in mind the difference between the [language of the MWCA], and the language in the [Retirement Act].” Board of Trustees v. Grandinetti, 269 Md. 733, 738 , 309 A.2d 764 (1973) (citations omitted). Appellant next argues that because Mitchell’s cancer did not occur “at a discrete point in time,” it was not, under Marsheck , an injury.

In that case, Marsheck, a Baltimore City police officer, sustained a work-related back injury. Marsheck, 358 Md. at 398 , 749 A.2d 774 . Despite that injury and while undergoing “several surgeries on her back, multiple ' epidural injections and steroid blocks,” she continued to perform her duties with the police department Id. at 399 , 749 A.2d 774 . Unfortunately, Marsheck’s back problems worsened.

Id. More than five years later, her physician found that she was “one hundred percent disabled from performing her duties with the police department.” Id. Marsheck then filed an application with the Fire and Police Employees’ Retirement System of the City of Baltimore (“the system”), seeking the same special disability benefits pursuant to § 34(e) that appellee now seeks. Id.

At the administrative hearing that followed, Marsheck’s application for special disability benefits was denied because it was not filed within five years of her injury as required by § 34(e). Id. at 399-400, 749 A.2d 774 . Before the Court of Appeals, Marsheck argued that the term “injury,” in the statute of limitations provision of the § 34(e), means “the date a police officer becomes permanently disabled and incapacitated from being able to perform police duties and, thus, forced into retirement.” Id. at 400, 749 A.2d 774 . Thus, Marsheck sought to extend the date the statute of limitations began to run to “the earliest date her health deteriorated to the point that she permanently became unable to perform any police duties.” Id.

Its “task,” the Marsheck Court wrote, was to “ascertain[ ] ... whether the legislative body intended the term ‘injury’ in § 34(e) to mean the point at which a police officer becomes ¹⁴ permanently disabled.” Id. at 402, 749 A.2d 774 . In other words, the issue before it was when does an “injury” occur for the purposes of the statute of limitations, not what is an “injury,” which is the issue before us. The Marsheck Court ultimately held that the term “injury,” in the statute of limitations provision of § 34(e), does not mean, as Marsheck argued, that the date of disablement was the date of the injury. Id. at 409, 749 A.2d 774 .

It reasoned that “injury” and “disablement” were terms in the Retirement Act that clearly referred to different things. Id. at 408 , 749 A.2d 774 . Appellant contends, however, that Marsheck also stands for the proposition that a harm is not an “injury” under the Retirement Act unless it occurs “at a discrete point in time.” Id. at 410 , 749 A.2d 774 . We disagree.

That language—“a discrete point in time”—must be read in conjunction with the statement that precedes it. What the Court actually stated was: “Indeed, an applicant for special disability benefits must show, by a preponderance of the evidence, that the injury arose from his or her police duties. Ordinarily such a burden requires proof of a work-related injury at a discrete point in time.” Id. (citations omitted).

Given that context, it is clear that the Court was not addressing the question of what is an “injury” under the Retirement Act but only what evidence is ordinarily required to show that the injury arose from the claimant’s duties. In other words, the Court was simply stating that to prove that an injury arose out of a claimant’s employment, it usually requires that the claimant establish when the injury occurred. Finally, such a narrow construction of “injury” serves no identifiable public policy. An interpretation of the Retirement Act that would give a firefighter who is injured by a falling beam special benefits, but deny them to a firefighter, who develops cancer as a result of having inhaled carcinogenic fumes in the course of carrying out his duties, seems entirely arbitrary.

That the date on which the beam fell can be precisely determined but the date on which the first cancer cell developed in Mitchell cannot lends at most a patina of ¹⁵ rationality to an unreasonable distinction. To define one harm as an injury and the other as not, in the absence of any supporting authority, strikes us as arbitrary and capricious. And because we are constrained to adopt “that construction [of a statute] which avoids an illogical or unreasonable result,” Kaczorowski v. City of Baltimore, 309 Md. 505, 513 , 525 A.2d 628 (1987), we must reject the narrow construction of “injury” urged by appellant and conclude that the Mitchell’s pancreatic cancer was an “injury.” II. Appellant contends that the circuit court erred in affirming the hearing examiner’s finding that Mitchell timely filed his application for special disability benefits within five years of the date of his injury.

Specifically, the hearing examiner found: Since the Claimant joined the Retirement System after July 1, 1979 there is the issue as to whether he applied for disability within five years of the date of his injury. The Claimant was diagnosed with cancer of the esophagus in 1993. He was operated on and returned to performing the duties of a firefighter. In 1998 he was diagnosed as having cancer of the pancreas.

It was a result of the second diagnosis that the Claimant could no longer perform the duties of a firefighter. There is much debate as to whether the subsequent cancer of the pancreas was a continuation of the cancer of the esophagus or a new cancer. In the opinion of this Hearing Examiner that debate is irrelevant. Prior to 1998 there was no injury to his pancreas.

It was this injury to the pancreas that caused his disability. Therefore, the claimant did apply for Special Disability within the required five years of disability. (Emphasis added). Contrary to the finding of the hearing examiner, however, appellant argues that “[t]he medical records that address the issue of when the [pancreatic] cancer started are undisputed.” ¹⁶ In support of that claim, appellant cites two medical reports: one by Andrew S. Kennedy, M.D., an Assistant Professor in the Department of Radiation Oncology of the University of Maryland School of Medicine, who performed radiation therapy on Mitchell’s pancreatic cancer, and the other by Anthony Imbembo, M.D., who removed Mitchell’s esophageal tumor and later performed a biopsy on his pancreatic tumor.

Dr. Kennedy’s report states that Mitchell’s “distal esophageal adenocarcinoma [was] diagnosed in 1998.” It concludes that Mitchell’s pancreatic cancer “is a continuation of his previously diagnosed esophageal cancer, although well-differentiated and slow-growing, it is nonetheless, not a new cancer.” The second report that appellant cites is an April 3, 1998 letter from Dr. Imbembo. In that letter. Dr. Imbembo wrote that, “[d]espite the five year interval, metastatic carcinoma remains the most likely diagnosis.” “Thus,” appellant argues, “the hearing examiner arbitrarily ruled that the cause of the cancerous tumor in the