Kerpelman v. DISABILITY REVIEW

ADKINS, Judge. Corporal Steven Kerpelman appeals the grant of a motion to dismiss his action in the Circuit Court for Prince George’s County for a writ of mandamus. In his mandamus action, Kerpelman asked the court to order the Medical Advisory Board (MAB) and the Disability Review Board (DRB), established under section 4.2 of the Prince George’s County Police Department Pension Plan Document (the Plan), to reverse their decisions that he does not have a qualifying disability. He contends that appellees, the MAB and DRB (the Agency), acted arbitrarily and capriciously, and failed to follow their ⁵¹⁶ own rules of procedure, when they refused to grant him a hearing or appeal of the MAB’s determination.

He noted three questions on appeal, which we consolidate to: Whether, under the Plan, the MAB, following its review of an application for disability retirement, is required to issue a written opinion containing findings of fact to the DRB, in cases when it finds that no qualifying disability exists to support the application for service related disability. We hold that, under the Plan, the MAB is required to issue to the DRB a written opinion containing findings of fact following its review of an application for disability retirement benefits, even when it finds no qualifying disability. We reverse the dismissal of the writ of mandamus, and remand this case to the circuit court for action in conformance with this opinion. FACTS AND LEGAL PROCEEDINGS Corporal Steven Kerpelman is a 20-year veteran of the Prince George’s County Police Department, who suffers from hypertension.

In August 2001, Kerpelman applied for service-connected disability retirement benefits under the Plan. Pursuant to section 4.2 of the Plan, he requested that the MAB review his medical records in order to establish his right to disability retirement. The MAB met on September 6, 2001, to review Kerpelman’s medical records. The MAB reviewed, inter alia, conflicting medical evaluations from: Dr. D. Leonard Griffen, III, dated August 13, 2001; Dr. Ross S. Myerson, dated September 19, 2000; and Dr. Richard G. Ammerman, dated September 8, 2000.

On September 7, 2001, Retirement Administrator Kathleen W. Colbert sent a memorandum to Police Chief John S. Farrell, communicating the MAB’s conclusion that “Kerpelman was not a candidate for retirement since there was no disabling condition.” 1 Kerpelman was subsequently ordered to return to “full duty.” ⁵¹⁷ On November 1, 2001, the MAB again met to consider Kerpelman’s fitness for duty. After reviewing additional information related to high blood pressure in general, and his condition in particular, the MAB again found Kerpelman fit for full duty. Colbert’s November 2, 2001 memo to Chief Farrell concluded, “[a]fter reviewing all records, the [MAB] indicated ... Kerpelman is fit for full duty.

The [MAB] found no objective evidence to indicate that ... Kerpelman is disabled. The [MAB] did recommend more aggressive treatment of his blood pressure.” Kerpelman was ordered to full duty on November 12, 2001. Kerpelman retained counsel, who demanded a written statement of the MAB’s findings.

Colbert’s December 14, 2001 letter to Kerpelman’s counsel restated her November 2, 2001 memo, and added that “an independent medical evaluation to further assess [Kerpelman’s] medical condition” would be scheduled. By order of the MAB, Kerpelman was examined by Gerald I. Shugoll, M.D., to provide an independent medical opinion. Dr. Shugoll reported in his February 4, 2002 letter to Colbert that Kerpelman suffers from a chronic, permanent condition, and even under treatment, may well be aggravated by significant emotional stress. Thus, as a police officer, light duty would be more appropriate than the full requirements of his position, but this need ■will have to be permanent.

He has already demonstrated an inability to consistently carry out the duties of his occupation, without periodically developing symptoms in high stress situations. Thus, a disability exists. On March 8, 2002, Colbert wrote to Acting Police Chief Gerald M. Wilson to inform him that on March 7, 2002, the MAB had again found Kerpelman fit for full duty. Kerpelman was ordered to full duty on March 15, 2002.

On March 22, 2002, Kerpelman requested a formal hearing before the DRB. Nephrologist Anne M. Thompson, M.D. evaluated Kerpelman on April 22, 2002. She reported in her letter of that date, that he ⁵¹⁸ has essential hypertension with clear cut evidence of end-organ damage — i.e., hypertensive cardiovascular disease with left ventricular hypertrophy and left atrial enlargement and early hypertensive retinopathy. He also has hyperlipidemia currently controlled by Lipitor.

He has had at least two well-documented episodes of tachycardia and moderately severe hypertension associated with stress. I strongly recommend that he either be assigned permanently to light duty or be retired on medical disability. I think that continuing in regular police duty would put him at high risk for myocardial infarction or cerebrovascular accident or at the very least, for progression of his LVH to a symptomatic stage. On April 24, 2002, S. Ross Myerson, M.D., reported on a medical evaluation he had performed on Kerpelman.

Dr. Myerson diagnosed Kerpelman with “mild to moderate hypertension and very mild left ventricular hypertrophy.” He found that his blood pressure was “well-controlled on medication” and that there is no evidence of an “abnormal blood pressure response to exercise.” He recommended that “further adjustments in medication could be made,” and concluded that “it does not appear that Mr. Kerpelman is disabled from his work as a police officer.” According to Colbert’s June 7, 2002 letter, the MAB found Kerpelman fit for duty when it met on May 2, 2002. Regarding his request for a hearing, Colbert informed Kerpelman that section 4.2(b) of the Plan states that the MAB shall provide “a written opinion regarding the nature, cause, degree of permanence and effect of the alleged disability” if it finds him “to have a permanently disabling condition within the definition of disability in Section 4.2(a).” The DRB then reviews the written opinion of the MAB and renders a preliminary determination as to disability. Because the MAB issued no such opinion of disability, Colbert explained, the DRB cannot make a preliminary determination from which a hearing may be had. He was again ordered to full duty. ⁵¹⁹ Colbert requested that Dr. Shugoll explain why Kerpelman was not fit for duty.

In his July 1, 2002 reply, Dr. Shugoll concluded, “[a]lthough ordinarily, a well hypertensive should be capable of performing the full duties of a police officer, in this case, the patient has demonstrated an inability to carry out his full duties, without symptomatic limitations, when exposed to extraordinary stress.” Cardiologist D. Leonard Griffen, M.D., is Kerpelman’s treating physician. On July 10, 2002, Dr. Griffen concluded both that Kerpelman’s hypertension is exacerbated by physical exertion and by his line of work. He added that Kerpelman’s hypertension, “[w]hile currently controlled ... provides him with a disability for his chosen line of work.” At its August 1, 2002 meeting, the MAB found Kerpelman fit for full duty after it reviewed the July 1, 2002 and July 10, 2002 reports from Drs. Shugoll and Griffen, respectively.

Colbert reported that “[t]he Board indicated that his complaints appear to be physiologic and not pathologic.” The MAB questioned the efficacy of his medication regimen and requested additional information from his treating physician, explaining, “to determine whether there is any medically disabling condition, the Board must have some demonstrable proof of a trial of adequate medication or combination of medications to control hypertension.” On August 23, 2002, Kerpelman filed his complaint for a writ of mandamus to the MAB and DRB, directing the reversal of their decision that he is not entitled to disability retirement under section 4.2(c)(2) of the Plan. He alleged that “the MAB and DRB abused their discretion by repeatedly making findings against the indisputable evidence the [he] is unfit for duty as a police officer, and is entitled to disability retirement^]” and that they “acted arbitrarily, capriciously, and unreasonably,” in “refusing to grant [him] a hearing or appeal from the findings of the [MAB].” The Agency filed a motion to dismiss for failure to state a claim upon which relief can be granted. ⁵²⁰ A hearing was held on the motion on January 10, 2003. In its order entered October 9, 2003, the motion court granted the motion to dismiss after finding that it did not have jurisdiction to hear the case under Md. Code (1984, 1999 Repl. Vol.), section 10-222(a) of the State Government Article, because the administrative agency had not rendered a final decision.

Kerpelman appeals from that dismissal. DISCUSSION I. Standard Of Review Kerpelman notes that the MAB and DRB never issued findings of fact related to his application for disability retirement. Rather than challenge the MAB’s determination that he did not have a qualifying disability, he instead challenges the Agency’s “erroneous interpretation of its procedural rules governing the evaluation of disability claims.” We recently explained at length the standard we employ on judicial review of administrative decisions. “Our role in reviewing an administrative decision is ‘precisely the same as that of the circuit court.’ ... [W]e review the administrative decision itself. ‘Judicial review of administrative agency action is narrow.’ In reviewing the Board’s decision, this Court must not engage in judicial fact-finding. Nor may we supply factual findings that were not made by the Board.

Moreover, this Court may not uphold the agency’s decision ‘unless it is sustainable on the agency’s findings and for the reasons stated by the agency.’ ... In contrast to findings of fact, however, an agency’s interpretation of law is not entitled to deference. When the 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.

Thus, ‘a reviewing court is under no constraints in reversing an administra ⁵²¹ tive decision which is premised solely upon an erroneous conclusion of law.’ ” Bozeman v. Disability Review Bd. of the Prince George’s County Police Pension Plan, 126 Md.App. 1, 4-5 , 727 A.2d 384 (1999) (citations omitted). Generally, we defer to the interpretation given a statute by the agency charged with administering it. See Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 445 , 697 A.2d 455 (1997). In Marriott, the Court of Appeals explained that “[t]he consistent and longstanding construction given a statute by the agency charged with administering it is entitled to great deference, as the agency is likely to have expertise and practical experience with the statute’s subject matter.” Id.

Nevertheless, “[a]n administrative agency’s construction of the statute is not entitled to deference ... when it conflicts with the unambiguous statutory language.” Id. at 446 , 697 A.2d 455 . Further, “when statutory language is clear and unambiguous, administrative constructions, no matter how well entrenched, are not given weight.” Macke Co. v. Comptroller of the Treasury, 302 Md. 18, 22-23 , 485 A.2d 254 (1984). An agency’s erroneous interpretation of its regulations must yield to the plain language of the statute. “No custom, however long and generally it has been followed by officials, can nullify the plain meaning and purpose of a statute.” Bouse v. Hutzler, 180 Md. 682, 687 , 26 A.2d 767 (1942). Kerpelman contends that the agency misinterpreted the Plan. “A challenge as to a regulatory interpretation is, of course, a legal issue.” Dep’t of Human Res. v. Thompson, 103 Md.App. 175, 191 , 652 A.2d 1183 (1995).

He also argues that the language of the Plan is clear and unambiguous. We agree. Consequently, we give no deference to the agency’s interpretation and “may substitute [our] judgment for that of the agency.” Liberty Nursing Ctr., Inc. v. Dep’t of Health and Mental Hygiene, 330 Md. 433, 443 , 624 A.2d 941 (1993). ⁵²² II. Preservation Of Issue For Appeal As a preliminary matter, the Agency argues Kerpelman seeks to raise issues for this Court’s review that were not raised below.

The record does not support this argument. In paragraph 13 of his complaint, Kerpelman alleged that the MAB’s refusal to issue a written opinion concerning his claim for disability retirement constituted arbitrary and capricious behavior. In his complaint for a writ of mandamus, Kerpelman represented that he had “requested an evidentiary hearing on the issue of whether his disability qualifies him for disability retirement. However, his request for such a hearing has been denied, leaving [him] no means by which to contest the findings of the [MAB] and DRB.” We conclude that the issue raised in this appeal was properly raised below and preserved for appeal.

III

The Police Pension Plan The Prince George’s County Council authorized the establishment of a police pension plan in Prince George’s County Code section 16-231(a)(1995). 2 See Bozeman, 126 Md.App. at 6 , 727 A.2d 384 . Section 4.2(a) of the Plan provides the definition of disability. A Participant shall be retired on a Disability Retirement Date if he meets all of the following conditions ... (1) The Participant is so disabled, mentally or physically, that he is unable to fill any position then available to him as an Employee.

(2) His disability is likely to be of long duration. ⁵²³ (3) His disability has not resulted from service in the armed forces of any country for which he receives a military pension, was not caused or connected with the use of drugs prohibited by law, or resulted from his engaging in a criminal act or an effort to bring about the