Couret-Rios v. Fire & Police Emp. Ret. Sys.

Carlos Couret-Rios v. Fire & Police Employees’ Retirement System of the City of Baltimore, No. 36, September Term, 2019. Opinion by Getty, J. LOCAL CODES—DISABILITY RETIREMENT SYSTEMS Under the Baltimore City Fire and Police Employees’ Retirement System compensation statute, Balt. City Code, Art. 22, §§ 29–49, qualified employees are potentially eligible for two different levels of disability benefits: a less substantial non-line-of-duty (“NLOD”) level of benefits; or a more substantial line-of-duty (“LOD”) level of benefits. Qualified employees are only eligible for LOD benefits if their disability stems from an injury that occurred in the line of duty and the injury caused a permanent “physical incapacity.” In contrast, qualified employees are eligible for NLOD benefits if the injury caused a permanent “mental[] or physical[] incapacit[y]” that prevents the employee from performing their job duties, whether or not the injury occurred in the line of duty.

The Court of Appeals held that, for the purposes of the Baltimore City Fire and Police Employees’ Retirement System compensation statute, a “physical incapacity” may include, in certain circumstances, manifestations of a “physical incapacity” that are caused by a physical injury to the brain. Petitioner, a qualified employee, was entitled to LOD retirement benefits where he suffered a concussion in the course of his duties, and as a result of the brain injury, he suffered permanently disabling memory loss and attention deficits. Circuit Court for Baltimore City Case No. 24-C-17-004254 Argued: December 10, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 36 September Term, 2019 CARLOS COURET-RIOS v. FIRE & POLICE EMPLOYEES’ RETIREMENT SYSTEM OF THE CITY OF BALTIMORE Barbera, C.J. McDonald, Watts, Hotten, Getty, Booth, Adkins, Sally D., (Senior Judge, Specially Assigned) JJ. Opinion by Getty, J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-09-09 11:44-04:00 Filed: May 1, 2020 Suzanne C. Johnson, Clerk Under the Fire and Police Employees’ Retirement System (the “F&P Retirement System” or “F&P”) compensation statute, police officers are potentially eligible for two different levels of disability benefits: a less substantial non-line-of-duty (“NLOD”) level of benefits; or a more substantial line-of-duty (“LOD”) level of benefits.

See Balt. City Code, Art. 22, § 34. Officers are only eligible for LOD benefits if their disability stems from an injury that occurred in the line of duty and the injury caused a permanent “physical incapacity.” See id. §§ 33(l)(4)(iii); 33(l)(11)(ii)(A). In contrast, officers are eligible for NLOD benefits if the injury caused a permanent “mental[] or physical[] incapacit[y]” that prevents the officer from performing their job duties, whether or not the injury occurred in the line of duty.

See id. §§ 34(c)(1) (emphasis added). In other words, benefits for NLOD disability may be awarded on the basis of a mental or physical incapacity, but benefits for LOD disability can only be awarded based on a physical incapacity. Petitioner Carlos Couret-Rios suffered a concussion in the course of his duties as a Baltimore City police officer. As a result of the brain injury, Officer Couret-Rios suffers from memory loss and attention deficits.

Officer Couret-Rios filed for and was granted LOD disability benefits after a hearing examiner concluded that Officer Couret-Rios was permanently physically incapacitated. The Circuit Court for Baltimore City affirmed, but the Court of Special Appeals reversed, holding that Officer Couret-Rios’s incapacities were mental, rather than physical. We must now determine if the hearing examiner erred when she awarded LOD disability benefits based on a finding of fact that Officer Couret-Rios suffered from memory loss and attention deficits as a result of a mild traumatic brain injury. For the reasons that follow, we disagree with the Court of Special Appeals and hold that the hearing examiner did not err in granting LOD retirement benefits.

BACKGROUND A. The F&P Retirement Compensation Statute. The F&P Retirement System is a benefit system statutorily established to provide retirement allowances and death benefits to firefighters and police officers (“Members”) paid by the Mayor & City Council of Baltimore (the “City”). See Balt. City Code, Art. 22, §§ 29–49.

The F&P statute prescribes contributions from the Members and the City to fund the Retirement System, which is managed by a Board of Trustees that has a fiduciary duty to act in the best interests of the Members. Through the rules established by the statute and the procedures established by the Board of Trustees, the Retirement System pursues the goals of providing life-long benefits to retired and disabled Members and ensures that the System remains solvent so that each Member can draw benefits when needed. The statute establishes two different levels of disability benefits for the Members of the F&P Retirement System: a less substantial NLOD level of benefits; and a more substantial LOD level of benefits. See Balt.

City Code, Art. 22, § 34. Members are only eligible for LOD benefits if their disability stems from an injury that occurred in the line of duty and the injury caused a permanent “physical incapacity.” See id. §§ 33(l)(4)(iii); 33(l)(11)(ii)(A). In contrast, Members are eligible for NLOD benefits if the injury caused a permanent “mental[] or physical[] incapacit[y]” that prevents the Member from performing their job duties, whether or not the injury occurred in the line of duty. See id. §§ 34(c)(1) (emphasis added).

In other words, benefits for NLOD disability may be 2 awarded on the basis of a mental or physical incapacity, but benefits for LOD disability can only be awarded based on a physical incapacity. See Bd. of Trs. of Fire & Police Emps.’ Ret. Sys. of Balt. v. Kielczewski, 77 Md. App. 581 , 591–93 (1989). The dispute in this case is not whether Officer Couret-Rios should receive disability retirement benefits but how substantial those benefits are allowed to be under the F&P retirement compensation statute.

To demonstrate the benefit dichotomy, we begin with the language of the statute. The first pertinent portion of the statute is § 33(l): (l) Panel of hearing examiners. (1) There is a panel of hearing examiners, composed of persons with a demonstrated knowledge and competence in disability claims evaluation. . . . *** (4) (i) Any non-line-of-duty disability or line-of-duty disability claimant must apply to the Board of Trustees. (ii) The application must include a medical certification of disability and all supporting medical documentation, on a form prescribed by the Board of Trustees, in which the member must state that she or he has suffered a disability and that the disability prevents her or him from further performance of the duties of her or his job classification.

(iii) If the claim is for a line-of-duty disability benefit, the member must also state that the physical incapacity was the result of an injury arising out of and in the course of the actual performance of her or his duty, without willful negligence on her or his part. (iv) Any member who has joined this system on or after July 1, 1979, and who applies for a line-of-duty disability benefit must also state that the disability resulted from an injury that occurred within 5 years of the date of her or his application. *** (7) A hearing examiner shall conduct hearings on all matters involving non-line-of-duty disability claims, line-of-duty disability claims, . . . and any related matters arising out of these claims. . . . 3 *** (10) (i) At the hearing, the member has the burden of proving, by a preponderance of the evidence: (A) the nature and extent of his or her disability; and (B) that the disability prevents him or her from the further performance of the duties of his or her job classification. (ii) If the matter involves a line-of-duty disability claim, the member has the burden of proving by a preponderance of the evidence that the disability was the result of an injury arising out of and in the course of the actual performance of duty, without willful negligence on the member’s part. *** (11) The hearing examiner shall determine the following: (i) whether the member has suffered an injury or illness of such a nature as to preclude the member from the further performance of the duties of his or her job classification; (ii) if the claim is for line-of-duty disability benefits: (A) whether the physical incapacity is the result of an injury arising out of and in the course of the actual performance of duty, without willful negligence on the member’s part; (B) whether the disability qualifies under § 34(e) . . . . (C) for a member who joined this system on or after July 1, 1979, whether the disability resulted from an injury that occurred within 5 years before the date of the members’ application . . . . *** (12) The hearing examiner shall issue written findings of fact that set forth the reasons for the hearing examiner’s determination.

If either party to the hearing is aggrieved by the hearing examiner’s determination, that party may seek judicial review of the determination by the Circuit Court for Baltimore City. The review shall be sought and heard as provided for in the Maryland Rules, with the exception that the review shall be heard on the record only, on a right-of-way basis. The final determination of the hearing examiner is presumptively correct and may not be disturbed on review except when arbitrary, illegal, capricious, or discriminatory. A party to the 4 judicial review may appeal the court’s final judgment to the Court of Special Appeals in accordance with the Maryland Rules of Procedure.

In large part, § 33(l) provides the procedures for administrative hearings. At the outset, disability claimants must apply to the Board of Trustees. Id. § 33(l)(4)(i). The application must include: (1) medical certification of disability and all supporting medical documentation, stating, among other things, that the disability prevents the claimant from further performance of their duties; and (2) for LOD claims, a statement that (i) “the physical incapacity was the result of an injury arising out of and in the course of the actual performance of her or his duty, without willful negligence on her or his part”; and (ii) “the disability resulted from an injury that occurred within 5 years of the date of her or his application.” Id. § 33(l)(4)(ii)–(iv) (emphasis added).

On receipt of an application, the claimant must be medically examined by a physician selected by the Board of Trustees. Id. § 33(l)(5). A panel of hearing examiners then schedule a hearing during which one of the hearing examiners conducts an informal hearing (i.e., without strict compliance of the rules of evidence) that includes testimony and the production of documents. Id. § 33(l)(6)–(8).

Despite the informality, the hearings are adversarial—the City Solicitor’s office represents the Board of Trustees and the claimant has the right to counsel. Id. § 33(l)(9). At the hearing, the claimant has the burden of proving, by a preponderance of the evidence: (1) “the nature and extent of his or her disability”; and (2) “that the disability prevents him or her from the further performance of the duties of his or her job classification.” Id. § 33(l)(10)(i). For LOD claims, the claimant must also prove “by a 5 preponderance of the evidence that the disability was the result of an injury arising out of and in the course of the actual performance of duty, without willful negligence on the [claimant’s] part.” Id. § 33(l)(10)(ii).

The hearing examiner must then determine “whether the [claimant] has suffered an injury or illness of such a nature as to preclude the [claimant] from the further performance of the duties of his or her job classification”; and if the claim is for LOD benefits, whether (1) “the physical incapacity” is the result of a line-of-duty injury, “without willful negligence on the [claimant’s] part”; (2) “the disability qualifies under § 34(e)”; and (3) “the disability resulted from an injury that occurred within 5 years before the date of the [claimant’s] application.” Id. § 33(l)(11)(i)–(ii). The hearing examiner must then “issue written findings of fact that set forth the reasons for the hearing examiner’s determination.”1 Id. § 33(l)(12). Section 34(c) and (e-1), the more substantive provisions, largely serve to define the eligibility and benefits of both NLOD and LOD disability retirement: (c) Non-line-of-duty disability retirement benefit. (1) Eligibility requirements.

A member shall be retired on a non-line- of-duty disability retirement if: (i) the member has acquired at least 5 years of service, as determined by the Board of Trustees; and 1 Section 33(l) also defines the appellate rights of the claimant and the City—namely, either party may seek judicial review by the Circuit Court for Baltimore City and then may appeal that judgment to the Court of Special Appeals. Balt. City Code, Art. 22, § 33(l)(12). However, “[i]f neither party seeks judicial review within 30 days following the mailing of the hearing examiner’s written findings of fact, the hearing examiner’s determination is final and binding, subject to the panel of hearing examiners’ right to reexamination.” Id. § 33(l)(14). 6 (ii) a hearing examiner determines that: (A) the member is mentally or physically incapacitated for the further performance of the duties of the member’s job classification in the employ of Baltimore City; and (B) the incapacity is likely to be permanent. *** (e-1) Line-of-duty disability benefits.

(1) A member shall be retired on a line-of-duty disability retirement if: (i) a hearing examiner determines that the member is totally and permanently incapacitated for the further performance of the duties of his or her 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 or her part; and (ii) for any employee who became a member on or after July 1, 1979, the application for line-of-duty disability benefits is filed within 5 years of the date of the member’s injury. Section 34 also provides detailed allowances for each type of disability retirement. The details are not pertinent, but in sum, LOD allowances are significantly more substantial than NLOD allowances. Compare id. § 34(e-2), with id. § 34(d).

To be eligible for NLOD disability retirement benefits, a claimant must have acquired at least five years of service and a hearing examiner must determine that (1) “the [claimant] is mentally or physically incapacitated for the further performance” of their job; and (2) “the incapacity is likely to be permanent.” Id. § 34(c)(1) (emphasis added). Assuming that the application for LOD benefits is filed within five years of the date of injury, a claimant is eligible for LOD disability retirement benefits if a hearing examiner determines that the claimant is (1) “totally and permanently incapacitated for the further 7 performance” of his or her job; (2) “as the result of an injury” in the line of duty; (3) “without willful negligence on his or her part.” Id. § 34(e-1)(1). Despite some inconsistent and duplicative language across two long provisions, the statute, on its face, provides for two separate types of disability retirement benefits, as made clear by the Court of Special Appeals in Board of Trustees of Fire & Police Employees’ Retirement System of the City of Baltimore v. Kielczewski, 77 Md. App. 581 (1989). In Kielczewski, the intermediate appellate court held that “the disability retirement benefit scheme contemplates the allegation and proof of a physical incapacitation as a prerequisite to the award of [LOD] disability retirement benefits.” Id. at 592–93.

The court based its holding on the statutory language of §§ 33 and 34:2 It is evident that the purpose underlying these sections is the enumeration of the substantive requirements of the two disability retirement benefits options available to an employee and to set out the procedures whereby that employee’s entitlement to one or the other is to be determined. Section 34(c) and (e[-1]) prescribe the requirements of the disability which qualifies an employee for either [a NLOD] or [LOD] disability retirement. They do so in terms of the level of disability, i.e., that the employee must be “incapacitated.” Only § 34(c) additionally prescribes the nature of the disability, i.e., that it may be mental or physical. . . . *** Section 33(l), with its requirements that a [LOD] disability retirement claimant allege a physical incapacity and that the hearing examiner make determinations concerning that physical incapacity, must be read together with § 34(e[-1]), which describes only the level of the disability required for [LOD] disability retirement benefits and § 34(c), which describes, as to [NLOD] disability retirement benefits, both the nature and the level of the disability required. So read, it becomes patent that . . . § 33(l) gives content 2 The relevant provisions of the statute remain substantively the same as they were in 1989 except a nomenclature change from “Special” benefits to “Line-of-Duty” benefits and “Ordinary” benefits to “Non-Line-of-Duty” benefits. 8 to § 34(e) insofar as the nature of the disability required as a prerequisite to the award of [LOD] disability retirement benefits is concerned.

Construing these provisions any other way would read these requirements out of § 33(l). Id. at 591–92. B. The Accident & Subsequent Injuries. This case stems from an application for LOD disability benefits filed by Officer Carlos Couret-Rios after he was injured in an automobile accident that occurred during his afternoon shift with the Baltimore City Police Department.

At the time of the accident, Officer Couret-Rios was 41 years old and had served as a police officer with the Department for eight years. The facts of the automobile accident are undisputed. Officer Couret-Rios was on duty on August 12, 2014 when a vehicle rear-ended the departmental vehicle in which he was sitting. Officer Couret-Rios briefly lost consciousness when his head snapped forward and back.

He was taken to an emergency room where he complained of neck pain, blurry vision, nausea, and dizziness. He was discharged with a diagnosis of a concussion and cervical strain. For all relevant times after the accident, Officer Couret-Rios was removed from full duty and placed on light duty status. Over the next several months, Officer Couret-Rios received treatment for neck and upper-back pain, headaches, and nausea.

He also complained of a tremor in his left hand, an unsteady gait, a reduction in his rate of cognition, and irritability. The treating physicians diagnosed Officer Couret-Rios with benign positional vertigo3 and post- 3 “Benign positional vertigo,” which is also known as “benign paroxysmal positional vertigo,” is “a condition marked by short, recurrent episodes of vertigo and nystagmus 9 concussion syndrome. The physicians also prescribed physical therapy to improve Officer Couret-Rios’s balance and reduce the problems related to dizziness. By October 23, 2014, two months after the accident, the officer’s back pain was resolved as evidenced by the medical records at that time.

For the next several months, he continued treatment with a physical therapist. By the time he was discharged from physical therapy on January 2, 2015, Officer Couret-Rios had no symptoms of vertigo or dizziness and suffered from only an occasional mild headache. In fact, his physical condition had improved to allow his return to a full exercise program. Officer Couret-Rios first complained of short-term memory loss on December 11, 2014, four months after the initial injury.

At a doctor’s appointment on that date, Officer Couret-Rios recounted that sometime within the last month he was suspended from duty because he misplaced his service firearm—an error that he attributed to his memory issues. In connection with his memory issues, Officer Couret-Rios was referred for neuropsychological testing. brought about by a change in head position.” Benign Paroxysmal Positional Vertigo, Merriam-Webster, https://www.merriam- webster.com/dictionary/benign%20paroxysmal%20positional%20vertigo (last visited April 30, 2020), archived at https://perma.cc/ZF2M-PEV9. “Vertigo” is “a sensation of motion in which the individual or the individual’s surroundings seem to whirl dizzily.” Vertigo, Merriam-Webster, https://www.merriam-webster.com/dictionary/vertigo (last visited April 30, 2020), archived at https://perma.cc/YZZ8-XZ6L. “Nystagmus” is the “involuntary usually rapid movement of the eyeballs occurring normally with dizziness during and after bodily rotation or abnormally following head injury or as a symptom of disease.” Nystagmus, Merriam-Webster, https://www.merriam- webster.com/dictionary/nystagmus (last visited April 30, 2020), archived at https://perma.cc/AP6K-JFLB. 10 After testing, Dr. Melissa Blackwell, a licensed psychologist, prepared a neurological evaluation report (the “Blackwell Report”). At the time of the Blackwell Report, on February 5, 2015, Officer Couret-Rios denied any remaining physical symptoms and noted that he had returned to all physical activities including exercising and weightlifting every day. Dr. Blackwell determined, however, that Officer Couret-Rios had developed cognitive symptoms: In my opinion, and to a reasonable degree of neuropsychological certainty, Mr. Couret[-Rios] sustained a mild traumatic brain injury/concussion on August 12, 2014 based upon his reports of head jolting, possible loss of consciousness, brief post-traumatic amnesia or disruption in mental status at the time of the injury, and subsequent post-concussive symptoms.

His profile indicates a pattern of select cognitive deficits with multiple aspects of attention and short-term/working memory most adversely impacted on testing. These cognitive deficits are, more likely than not, a function of his continued recovery from the concussion sustained on August 12, 2014. His history of premature birth also cannot be ruled out as a contributing factor to his neurocognitive weaknesses. Dr. Blackwell concluded that Officer Couret-Rios’s symptoms were “consistent with . . . a Mild Neurocognitive Disorder secondary to” a concussion but that he “has already evidenced significant signs of recovery of both physical and cognitive symptoms, though the likelihood of further recovery is certainly possible.” By June 4, 2015, a police department physician determined that it was “highly unlikely” that Officer Couret-Rios would be able to return to full duty service.

Two months later, on August 28, 2015, Officer Couret-Rios was told by the same physician that he had “permanent” “limitations which prevent[ed] him from performing all of the essential functions of a police officer in a safe, reliable, and ongoing manner.” 11 Dr. Walter Kozachuk, a neurologist, examined Officer Couret-Rios on November 3, 2015 and concluded in a written report that the officer had “48% whole person impairment” including memory, back, and physical endurance impairments, and headaches. Officer Couret-Rios timely applied for line-of-duty disability retirement on February 2, 2016 (the “Application”). On the Application, Officer Couret-Rios checked boxes stating that he had both a “Physical” and “Mental” incapacity and, on another part of the application, described the “cause of [his] disability” as “pain to head, neck, back, including post[-]concussion syndrome and psychological problems.” According to the Application, Officer Couret-Rios was now incapable of performing “Almost All” of his principal duties as a law enforcement officer, with the exception being “limited report writing.” The Application also included a statement from Dr. Kozachuk diagnosing Officer Couret-Rios with concussion, headaches, dizziness, nausea, ataxia,4 absence spells, memory loss, and dysphasia.5 Dr. Kozachuk’s statement also included Officer Couret- Rios’s subjective complaints of neck pain, loss of balance, insomnia, and depression. Absent from the application was any mention of back pain. 4 “Ataxia” is “an inability to coordinate voluntary muscular movements that is symptomatic of some central nervous system disorders and injuries and not due to muscle weakness.” Ataxia, Merriam-Webster, https://www.merriam-webster.com/dictionary/ataxia (last visited April 30, 2020), archived at https://perma.cc/5SVZ-4WD6. 5 “Dysphasia” is “loss of or deficiency in the power to use or understand language as a result of injury to or disease of the brain.” Dysphasia, Merriam-Webster, https://www.merriam-webster.com/dictionary/dysphasia (last visited April 30, 2020), archived at https://perma.cc/VQN7-NR2B. 12 As part of the disability application process, F&P gathered Officer Couret-Rios’s pre-injury and post-injury medical records.

Officer Couret-Rios was also evaluated by several medical experts in connection with his disability claim, all of whom produced written reports. The relevant medical evaluations included: • Dr. Douglas Shepard, Independent Medical Evaluation, October 11, 2016 • Dr. Michael Sellman, Independent Neurological Evaluation, December 29, 2016 • Dr. Stephen Siebert, Psychiatric Independent Medical Evaluation, March 7, 2017 • Dr. Louis Halikman, Independent Orthopedic Consultation, April 27, 2017 C. The Administrative Hearing & Report. On June 28, 2017, a hearing examiner held a § 33(l) hearing on Officer Couret- Rios’s Application for LOD benefits. Officer Couret-Rios argued that his “three main” disabling complaints were (1) headaches; (2) lower back pain; and (3) “cognitive neurological issues, memory, those kind of things.” Officer Couret-Rios testified at the hearing and provided examples of how his neurological issues might affect his performance as a police officer.

In connection with his poor memory, Officer Couret-Rios testified that he might forget that he confiscated drugs or have problems recalling faces and facts while testifying against a suspect. He further testified that at one point, he forgot that he had a daughter and, on several occasions, recognized co-workers but could not recall their names. With regard to the headaches, Officer Couret-Rios testified that even prior to the accident he suffered from headaches while working full time and that if the headaches were his only malady, that he would still be able to perform his job. As to the back pain, Officer Couret-Rios testified that he would not be able to chase suspects or sit or stand for long 13 periods of time, and worried that a suspect could easily overpower him in a physical altercation.

Officer Couret-Rios testified that the back pain alone incapacitated him so severely that, if he continued as a police officer, he would “get killed.” After considering the testimony and over 600 pages of medical records, the hearing examiner issued a written report including her factual findings and legal conclusions. The report included summaries of the testimony, the written medical records, and the “EXPERT EVALUATIONS.” In the “EXPERT EVALUATIONS” section, the hearing examiner summarized the expert reports provided by both parties. Officer Couret-Rios’s experts included Dr. Kozachuk, a neurologist, and Dr. Shepard, an orthopedist. Dr. Kozachuk’s report mirrored his statement in the Application that provided a disability rating of 48% temporary total disability and ratings of anatomical loss to speech, neck, back, and central nervous system.

Dr. Shepard reported anatomical loss ratings as to orthopedic issues: 12% impairment to thoracic spine, 22% impairment to lumbar spine, and 15% left hip. Dr. Shepard also referred to a report by orthopedic spine surgeon Dr. Chad Rutter.6 According to Dr. Shepard, Dr. Rutter diagnosed Officer Couret-Rios with lumbar disk disorder and radiculopathy. Dr. Rutter reviewed a magnetic resonance imaging (“MRI”) scan taken on February 29, 2016 and opined that Officer Couret-Rios had “L4-L5 degenerative disk disease, small disk bulge and moderate foraminal stenosis.” 6 Dr. Rutter’s report is not present in the record. 14 F&P submitted reports from Dr. Sellman, Dr. Siebert, and Dr. Halikman. Dr. Sellman, a neurologist, concluded that the original injury to the head was mild.

He stated he could not relate the constellation of symptoms to the motor vehicle accident. Although he determined that Officer Couret-Rios was permanently and totally disabled, he did not believe that Officer Couret-Rios sustained an incapacitating neurological injury in the accident. Dr. Siebert provided a diagnosis of mild neurocognitive disorder due to concussion but stated that Officer Couret-Rios’s prognosis was “guarded” due to multiple preexisting medical problems including diabetes and hypertension. Dr. Siebert concluded that Officer Couret-Rios’s cognitive difficulties were disabling but that such difficulties were related to both preexisting medical conditions and the injuries caused by the automobile accident.

Dr. Halikman, an orthopedic surgeon, examined Officer Couret-Rios in relation to his complaints of lower back pain. In his report, Dr. Halikman concluded, [i]t is my impression that this patient does not have objective evidence of disability due to a low back injury. At the time of the accident in 2014 his primary orthopaedic complaint involved neck pain. Back pain developed afterwards and there was significant improvement with ordinary physical therapy and conventional treatment.

On an objective basis today, lumbar spine function appears satisfactory. . . . It is my opinion, therefore, that from an orthopaedic point of view, disability retirement is not established. The hearing examiner next outlined the controlling law whereby she cited Kielczewski, 77 Md. App. at 581 , for the proposition that “[b]enefits for NLOD disability may be awarded on the basis of a mental or physical incapacity[, but b]enefits for LOD disability can only be awarded based on a physical incapacity.” The hearing examiner then 15 announced her factual findings and legal conclusions in a section titled “DECISION.” The hearing examiner was unpersuaded that Officer Couret-Rios had suffered a disabling orthopedic injury in the automobile accident. Relying especially on Dr. Halikman’s expert report, the hearing examiner had “trouble finding that [Officer Couret-Rios] is disabled due to a back condition related to” the accident.

The hearing examiner concluded that “[t]he records indicate any back problem related to the initial injury [are] resolved. The current back problems come much later and per the [February 29, 2016] MRI, the back problems are degenerative.” The hearing examiner, however, found that Officer Couret-Rios was permanently disabled because of “problems relating to attention and memory.” Placing particular emphasis on the Blackwell Report, the hearing examiner specifically found that Officer Couret-Rios was “permanently incapacitated from his regular job duties as the result of an injury to his brain” that occurred “while he was in the performance of his duties.” Based on that finding, the hearing examiner concluded that Officer Couret-Rios had met the criteria for LOD disability benefits—i.e., that he was physically incapacitated. On judicial review, the Circuit Court for Baltimore City affirmed the hearing examiner’s decision. F&P appealed to the Court of Special Appeals.

D. The Court of Special Appeals. The Court of Special Appeals reversed in a rare 1-1-1 fractured decision, Judge Kevin F. Arthur for the majority, Judge Timothy E. Meredith concurring, and Judge Andrea M. Leahy dissenting. See Fire & Police Emps.’ Ret. Sys. of Balt. v. Couret-Rios, No. 02493, Sept. Term, 2017, 2019 WL 1934004 (Md. Ct. Spec.

App. Apr. 30, 2019). The 16 controlling opinion concluded that Officer Couret-Rios’s “incapacitation is