Hersl v. Fire & Police Employees' Retirement System

RODOWSKY, J. Stephen Hersl (Hersl or the Claimant), appellant, was injured in the line of duty as a Baltimore City firefighter on February 5, 2006, and never returned to work. Following notification that he would be retired, effective February 6, 2007, he applied for line-of-duty (LOD) disability retirement. A hearing examiner denied the application, concluding that the LOD injuries were not permanent and that the cause of his permanent total disability was a non-LOD heart condition. Hersl was unsuccessful on judicial review by the Circuit Court for Baltimore City.

His appeal to this Court presents the following questions: ²⁵² “I. Is there substantial evidence supporting the hearing examiner’s determination that Mr. Hersl’s disability is caused by heart disease rather than line-of-duty injuries? “II. Is there substantial evidence supporting the hearing examiner’s determination that Mr. Hersl’s shoulder injuries are not permanent? “HI. Is there substantial evidence supporting the hearing examiner’s determination that Mr. Hersl’s leg injuries are not permanent line-of-duty injuries? “IV. Did the circuit court err as a matter of law when it determined that Mr. Hersl is not entitled to retirement benefits if he is disabled as a result of a combination of injuries?” I. The Accident and Injury Hersl joined the Baltimore City Fire Department as a firefighter on January 26, 1987, when he was twenty-four years old.

He was in perfect health, as confirmed by a physical examination. On or about May 13, 1998, Hersl injured his left knee in an automobile accident while off-duty. On October 18, 2000, he was injured in another off-duty auto accident, during which his left knee struck the dashboard. That knee continued to bother him, and, in December 2000, he underwent surgery to repair a torn medial meniscus and a torn anterior cruciate ligament.

In February 2006, Hersl’s assignment was to Truck Company 30 located on Belair Road at Mary Avenue. At this time, he was an active firefighter, fully and completely able to perform his duties. On the evening of February 5, 2006, Hersl’s unit responded to a call for medical assistance. He and another firefighter were required to remove an incapacitated male, weighing approximately 275-300 pounds, from a basement apartment.

The man was placed on a stretcher, and the two firemen ²⁵³ began to ascend a seven or eight step staircase. Near the top of the staircase, Hersl, at the front of the stretcher, and moving backwards, slipped and slid down the stairs with the man and stretcher landing on top of him. Hersl sustained multiple injuries, including jamming his shoulders when attempting to break his fall. He was taken to Mercy Hospital for evaluation and treatment in the early hours of February 6, 2006.

The claimant was experiencing severe pain in his ankle area, left knee, shoulders, and nose. An MRI, performed on February 10, revealed a ruptured right Achilles tendon. This injury was repaired through surgery by Dr. Clifford L. Jeng on February 16, 2006, at Mercy Hospital. There was no resulting disability to the ankle area, and this injury is not involved in the present claim.

Under an apparent arrangement between the Baltimore City Fire Department and Mercy Hospital, Mercy physicians examine firefighters who are on sick call. Mercy periodically reports in longhand to the Baltimore City Fire Department on the status of these firefighters, utilizing a form headed, “PSI VISITATION/DISPOSITION” (a PSI Report). Underlying the PSI Reports are typewritten chart notes. When Hersl was seen under this program, on February 10, Dr. Paula Lyons noted that, in addition to the tendon rupture, the Claimant “also has some shoulder complaints with good range of motion.” On March 15, Dr. Lyons noted that Hersl was to remain off-duty, following the tendon rupture repair.

As of April 6, the Claimant was recuperating from the Achilles tendon surgery and had not received any treatment for his shoulders. The Claimant was examined, on April 11, 2006, by Dr. Martin Kanner, a specialist in rehabilitation. Dr. Kanner submitted his report to “Expert Medical Opinions,” and, six days later, it was faxed to “Comp Management Inc.” Dr. Kanner summarized Hersl’s medical conditions as: “1. Rupture of the right Achilles’ tendon—surgically repaired February 16, 2006. ²⁵⁴ “2.

Contusion of the bilateral knees with pre-existing degenerative changes in left knee. “3. Impingement syndrome—left shoulder “4. Strained right rotator cuff “5. Rule out nasal fracture versus contusion. “All injuries described above, within a reasonable degree of medical certainty[,] are causally related to his accident on February 6, 2006.” Dr. Lyons saw Hersl at Mercy on April 19 and noted his complaints of pain in both shoulders, with the left worse than the right.

She approved an MRI of his left shoulder, “since that’s the symptomatic shoulder.” The MRI, without contrast, taken on April 20, was read to reflect “no rotator cuff tear,” but to reflect “marked subscapu-laris tendinopathy.” Dr. Lyons saw the Claimant on April 25 and, because of his complaints relating to his right and left shoulders, Dr. Lyons referred him to the Orthopedics Department at Mercy where he was seen by Dr. Thomas Whitten. Dr. Whitten ordered an MRI, without contrast, of the right shoulder. Based on both MRIs and his examinations of Hersl, Dr. Whitten concluded, on May 17, that the Claimant’s “left shoulder does have significant rotator cuff pathology, and I think we should go ahead and proceed with an arthroscopy, possible acromioplasty, and repair of rotator cuff. In addition, he may need an AC [acromioclavicular] joint resection.” Dr. Whitten shared this opinion with Dr. Lyons.

Surgery on Hersl’s left shoulder was initially scheduled for May 2006. Prior to surgery, however, Hersl suffered a massive heart attack that resulted in quintuple bypass surgery on May 22, 2006. He was back in the hospital again on July 10, 2006, complaining of continued chest pains. At that time, an angioplasty, with coronary artery stenting, was performed.

By October 2006, Hersl was sufficiently recovered to permit medically addressing his shoulder problems. Because Dr. Whitten was not available, the Claimant was referred to Dr. ²⁵⁵ Joseph J. Ciotola. On October 11, after Dr. Ciotola examined Hersl and explained the options to him, the plan was to operate on the right shoulder first, and, if there were no cuff tear, proceed to repair of the left shoulder. Otherwise, there would be separate surgeries, six to twelve weeks apart.

Dr. Lyons was so advised. On October 31, 2006, the Claimant was seen at Mercy by Dr. James D. Levy for a PSI Report. In his report, Dr. Levy stated that the reason for the visit was “Follow-up Achilles tendon, shoulders, left knee, heart.” Under “Remarks,” Dr. Levy stated, “This gentleman has multiple medical problems, some of them serious, and he will not be returning to full duty for the Baltimore City Fire Department.” Under “Diagnosis,” the PSI Report reads, “Coronary artery disease—S.P. multiple surgical interventions.” In his underlying, typewritten note, Dr. Levy stated, under the heading “IMPRESSION” as follows: “Fellow with multiple medical problems as well as history of multiple injuries in the past.” He said that it was obvious that Hersl had “severe heart disease” and that he would not be returning to full duty. On November 7, 2006, Dr. Ciotola advised Dr. Lyons that surgery for “bilateral shoulder arthroscopy/subacrominal decompression/mini Munford and possible rotator cuff repair” was scheduled for November 22.

On November 10, 2006, the Fire Department notified Hersl that his cutoff from that employment would be effective February 6, 2007. The surgery on November 22 did not proceed beyond the right shoulder. Dr. Ciotola found a partial rotator cuff tear that was repaired. In a note of December 6, with copy to Dr. Lyons, Dr. Ciotola described Hersl as “doing very well after his arthroscopic subacrominal decompression and mini open distill clavicle resection and his [SLAP] repair.” Dr. Ciotola wanted to get Hersl back to full motion with his right shoulder before proceeding with surgery on the left shoulder.

Under date of January 8, 2007, Hersl applied for LOD disability retirement. In response to the question as to the cause of his disability, he stated, “I have a ruptured Achilles ²⁵⁶ tendon in my right leg, a torn rotator cuff in my left and right shoulder, and a deviated septum in my nose.” Asked to describe the injury and how it happened, Hersl answered, “I slipped and fell down steps while carrying a heavy patient on a stretcher. I hurt my right leg, right & left shoulders, nose, left knee.” Dr. Ciotola saw Hersl on December 27, 2006, and February 13, 2007. On the latter date he completed, in longhand, a form for the Retirement Systems of the City of Baltimore headed, “Attending Physician’s Statement of Disability.” In response to a question concerning the patient’s complaints, Dr. Ciotola stated that Hersl had “pain with overhead activities, push, pull, lift, carrying loads, cross body activities.” Asked to describe Hersl’s present condition and prognosis, Dr. Ciotola checked “physically incapacitated.” Asked, “Is such incapacity likely to be permanent,” Dr. Ciotola checked “Yes.” (Emphasis added).

Describing the effect of the impairment on the duties of the job, Dr. Ciotola opined: “Mr. Hersl is an active firefighter. Due to the injury to his arm + leg, he is totally unable to perform the duties of his job qualification. Percent of Disability 100%.” Section 8 of the form dealt with cardiac limitations. Dr. Ciotola marked that section not applicable.

The questionnaire also requested “the percentage of anatomical loss of use of any of the following functions or body parts caused by an accident, and the date of the accident which caused the loss.” There followed a preprinted list of ten body functions or parts. Dr. Ciotola checked “Arm,” “Leg,” and “Vital Body Organ” after adding “Nose” to the latter. As to each, he rated 100%. In an office note of the February 13, 2007 visit, Dr. Ciotola recorded: “With regards to his shoulders, I did fill out his disability paperwork today as he has significant enough pathology and will not likely be able to return to full duty carrying his gear and climbing in and out of houses and so forth required by his job description.” Left shoulder surgery was performed on February 23, 2007.

A follow-up appointment on March 15, 2007, revealed that the ²⁵⁷ incisions “looked great” and the “pain was decreased” in the left shoulder. The Fire and Police Employees’ Retirement System (Retirement System) requested that Hersl be examined by Dr. Louis S. Halikman, an orthopedic surgeon. He rendered a five-page report under date of March 29, 2007. Regarding the left knee pain, the doctor noted Hersl was injured in a 1998 non-LOD car accident for which he required surgery.

The doctor continued: “His left knee is a serious problem. He stated that his knee was not appreciably symptomatic prior to the [February 5, 2006] accident____He states that he is limited in his ability to walk. He cannot run or jog.” “The patient’s right knee is fine.” Dr. Halikman examined both shoulders and found limitation of motion. He examined x-rays of both shoulders and a “large package of documents” comprising the medical records, but they did not include the records of the shoulder surgery.

He concluded: “It is my opinion that this gentleman is totally and permanently disabled from his job as a firefighter. He is disabled on the basis of several line of duty injuries involving his left knee as well as the recent line of duty injury which involves both of his shoulders. He had also sustained a right ankle Achilles tendon rupture but he has made an excellent recovery from that injury.... “Nevertheless, it is my opinion that Mr. Hersl is totally and permanently disabled from his job as a firefighter due to line of duty injuries and disability retirement is recommended.” The Retirement System sent Dr. Halikman the additional medical records for review. In a letter dated April 6, 2007, he said, “My opinions are unchanged; I am recommending disability retirement for [Hersl].” ²⁵⁸ II.

The Administrative Hearing An administrative hearing on Hersl’s LOD disability claim was conducted on April 26, 2007, before a hearing examiner. Hersl was the only witness. He testified on direct and was subjected to a short cross-examination. Hersl’s injuries from the February 5, 2006 LOD accident were discussed, as well as the heart attacks that spring and summer.

The relevant medical records were placed in evidence. The examiner then began a lengthy inquiry into Hersl’s medical conditions. He focused principally on Hersl’s heart condition, concluding that “[i]t is pretty obvious this present gentleman has severe heart disease.” The examiner did comment, however, that “[w]e have no doctor who is saying that you cannot, that your disability is related to your heart.” It is conceded the Retirement System did not require Hersl to be examined by a cardiologist prior to the administrative hearing. In a five-page written opinion, dated the same day as the hearing, April 26, 2007, the examiner denied Hersl LOD disability retirement.

His ultimate conclusions were: “1. The Claimant has severe heart disease which totally and permanently incapacitates him for the further performance of the duties of his job classification; “2. The physical incapacity is not a result of an injury arising out of and in the course of the actual performance of duty, without willful negligence on his part; “3. The injuries to the Claimant’s shoulders have been surgically repaired and there is insufficient evidence to find that such injuries are likely to be permanent; and “4.

The injury to the Achilles tendon has been repaired and there is evidence that convinces the hearing examiner that it no longer is a cause of incapability to perform the job classification.” The examiner stated that he gave “no weight to Dr. Cioto-la’s reports as indicating permanency of physical incapacity of the shoulders.” He determined that “Dr. Ciotola’s report of ‘100% anatomical loss of use of arm’ is inconsistent with his ²⁵⁹ medical reports describing the effects of the surgery on the shoulders, which attest to successful repairs.” The examiner rejected Dr. Halikman’s medical opinion, for failure to provide evidence that “it is likely the physical incapacity caused by the LOD injuries to the shoulders will likely be permanent. He combines the shoulder injuries with several line of duty injuries involving his left knee which are not shown to have been caused by the February 5, 2006 LOD accident.” The decision concluded that “evidence of severe heart disease is sufficient to prove he is totally and permanently incapacitated for performance of his job classification.” Thus, Hersl was entitled to a non-LOD disability retirement.

III

Circuit Court Review Judicial review of the agency’s decision was conducted on October 15, 2007, in the Circuit Court for Baltimore City. That court framed the issue as follows: “The issue before the court is whether there is substantial evidence to support the hearing examiner’s conclusion that there is insufficient evidence to find that the shoulder injuries are permanent. There is no basis to dispute the conclusion that any physical incapacity due to petitioner’s heart disease is not the result of an injury arising out of and in the course of the employment. Nor is there any evidence that the injury to the Achilles tendon is the cause of any incapacity.

Finally, there is no evidence in the record that the problems with petitioner’s knee are due to a line-of-duty injury. Given those facts, the only basis for a finding in petitioner’s favor is that the shoulder injuries permanently incapacitated petitioner from performance of his duties. On the other hand, if the injury to the shoulders did result in a permanent incapacity that prevents petitioner from performing the duties of his job classification, then petitioner is entitled to a finding in his favor, whether or not the heart disease would also incapacitate him.” ²⁶⁰ The court concluded that both Dr. Ciotola’s and Dr. Halik-man’s reports could be interpreted as opining that either the shoulder injuries alone caused the disability or the shoulder injuries combined with non-LOD injuries to the knee caused the disability. It was the court’s understanding that the latter finding would result in a denial of benefits.

Because the latter finding was supported by substantial evidence, grounds for reversal of the agency decision did not exist. 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.’ [Department] 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).” Board of Trustees for the Fire & Police Employees’ Ret.

Sys. v. Mitchell, 145 Md.App. 1, 8 , 800 A.2d 803, 807 (2002). The Court of Appeals discussed this standard in Maryland Aviation Admin. v. Noland, 386 Md. 556 , 873 A.2d 1145 (2005): “ ‘A court’s role in reviewing an administrative agency adjudicatory decision is narrow; it is limited to determining if there is substantial evidence in the