Severn v. Mayor of Baltimore

Bruñe, C. J., delivered the opinion of the Court. This is an appeal from an order dismissing a petition for a writ of mandamus sought by the appellant to require payment of accidental death benefits on account of the death of her husband, who had been a Fire Fighter employed by the City of Baltimore (the City). The appellees are the City and the members of the Board of Trustees of the Employees’ Re' tirement System of the City of Baltimore (the Board). Robert E. Severn, the husband of the appellant, had been a ¹⁶³ member of the Fire Department and of the Employees’ Retirement System for approximately fifteen years prior to December 1, 1959.

On that date, in the discharge of his duties, he was engaged in fighting a several-alarm fire. While so engaged, he suffered a heart attack—a coronary occlusion which caused a myocardial infarction. After a period of hospitalization he returned to his home and his condition improved, but he was never able to return to duty as a Fire Fighter. In April, 1960, he filed a claim for disability benefits under Art. 23 of the Baltimore City Code (the Pension Ordinance).

His claim was referred by the Board to its advisory Medical Board. The latter reported in May that Severn had a myocardial infarction, that he was physically incapacitated and that his incapacity was likely to continue, and recommended that he be retired. The Board conducted two hearings on the claim—the first on August 8, 1960, when several witnesses, including Severn and Dr. Vollmer, a member of the Medical Board, were heard, and the second on August 16, 1960, when Dr. Moore, a Fire Department physician who had treated Severn at the scene of the fire, was heard. The Board found that “Severn was totally and permanently incapacitated for duty by reason of a myocardial infarction, as the natural and proximate result of an accident occurring while in the actual performance of duty at some definite time and place, without wilful negligence on his part, and on August 16, 1960, awarded him accidental disability benefits.” (The language quoted is taken from a statement in the Board’s opinion of March 20, 1961, filed in the death case, which, inter alia, reviewed the earlier proceedings.

The findings quoted are substantially in the words of the accidental disability benefit provisions of § 6 (5) of the Pension Ordinance.) Because of Fire Department regulations Severn was to continue on the payroll for one year after the accident and the disability award was then to become effective. On leaving the hospital Severn employed a private physician who saw him rather frequently—but at increasing intervals. This doctor’s last visit to Severn during the latter’s life was on September 15, 1960, at which time Severn’s condition ap ¹⁶⁴ peared to be about as it had been previously. This was that he had compensated fairly well for the infarction and was getting around normally, even though he could not return to work as a Fire Fighter.

The patient then said that “he felt good but very nervous,” and the doctor gave him something for his nerves. Two days later, on September 17, Severn died suddenly. His doctor was called, concluded that a coronary occlusion was the cause of death, and signed the death certificate accordingly. There was no autopsy.

Following Severn’s death his widow filed her claim under § 6 (9) of the Pension Ordinance (as amended) for the accidental death benefit thereunder. Paragraph (a) of that section first provides for the payment of a member’s accumulated contributions to his designated beneficiary or his estate. It and paragraph (b) further provide with regard to accidental death in line of duty: “* * * and if, upon the receipt of evidence or proofs satisfactory to the Board of Trustees that such death was the result of injuries sustained in the line of duty or was directly attributable to the inherent hazards of the duties performed by such employee, and the Board of Trustees shall decide that the death was not caused by wilful negligence on the part of the member, there shall be paid in lieu of the ordinary death benefit provided by the contributions of the City, a pension of one hundred per centum of the current compensation of such employee; (b) To his widow to continue during her widowhood * * *." Severn’s health record had been good. It showed only one episode which might have even suggested any heart trouble.

The episode occurred in 1955 and was apparently due to indigestion. An electrocardiogram made at the time disclosed no abnormality, and Severn continued in active service for four years before his heart attack of December 1, 1959. The principal factual controversy in this case is whether or not Severn’s death was due to the injury which caused or ¹⁶⁵ “triggered” his disability. Medical opinion was divided on the question.

It was generally agreed that Severn died of a coronary occlusion (though one or two other possibilities were considered), and that he had had a coronary occlusion on the night of the fire. His own physician testified at a hearing before the Board on January 9, 1961, that in his opinion death was due to a continuation of the heart attack suffered at the fire. At a subsequent hearing on February 6, 1961, of which neither the claimant nor her counsel is shown to have had notice and at which neither appears to have been present, Dr. Vollmer expressed the opinion that Severn had had “coronary artery disease” which antedated his first heart attack at the fire and that his second coronary occlusion was not a result of the accident. On March 20, 1961, the Board filed the opinion already referred to, which reviewed the proceedings up to that date, referred to the testimony of the two physicians on the death claim and contained the following findings of fact: “From the testimony of these physicians, the Board determined that an accidental death within the meaning of the provisions of Section 6(9) (a) had not been made out.

The Board finds as facts that while Mr. Severn originally suffered an accident while in the performance of duty, his subsequent death was the result of coronary artery disease which antedated his accidental injury and was neither the result of injuries sustained in the line of duty nor directly attributable to the inherent hazards of the duties performed by him.” The Board, with one of its five members not concurring, denied the application for accidental death benefits. On April 10, 1961, at the request of the claimant or her then counsel (not her counsel on this appeal), the Board reopened the matter and heard the testimony of Dr. Moore, the Fire Department physician who had treated Severn at the scene of the fire. His opinion, which he stated could not be positive in the absence of an autopsy, was that “the strongest possibility” was that Severn’s first heart attack was respon ¹⁶⁶ sible for his death. He stated that “the common cause of someone dying following a coronary occlusion is usually a rupture of the scar.” Following this hearing the Board wished to have the opinion of an independent cardiac expert.

The record contains a copy of a letter dated May 19, 1961, from the Executive Secretary of the Board to the claimant’s then counsel in reply to counsel’s letter of May 18 (which does not appear in the record) stating that a cardiologist (whom the Board had evidently considered consulting) was out of town and was not expected to return for several weeks. This letter concluded thus: “It is possible our Board may request an opinion of another cardiologist and if this is done, I will forward you a copy of our correspondence.” The record discloses no reply to this letter. On July 19, 1961, the Executive Secretary wrote another letter, a copy of which is in the record, to the claimant’s then counsel, the body of which reads as follows: “As you know, our Board of Trustees, in view of the differing opinions expressed in the testimony of Dr. Kirk Moore and Dr. Frederick Vollmer, decided that before making a final determination on the claim of Mrs. Severn it wished to have a medical opinion by an independent heart specialist. Accordingly, the file in this case was reviewed by Dr. Frank W. David, [sic] Jr., 11 East Chase Street.

Just this morning I received Dr. Davis’ report which will be submitted to our Board of Trustees at its meeting on August 7. I will advise you immediately after that meeting of the disposition of our Board.” No reply to this letter appears in the record. On August 9, 1961, the Executive Secretary of the Board wrote the claimant’s then counsel a third letter (a copy of which is also in the record) referring to the letter of July 19, and the Board’s feeling that “the opinion of an independent heart specialist should be sought” and stating that accordingly the entire file in this case had been referred to Dr. Frank W. Davis, Jr., with the request that he study all the records and submit a report thereon. This letter further stated that ¹⁶⁷ his report, dated July 11, 1961, had been submitted to the Board at its meeting on August 7, 1961, and that after consideration of the report, the Board took action reaffirming its opinion of March 20, 1961.

The letter also stated that a copy of Dr. Davis’ report was enclosed. This report recited the documents which Dr. Davis had examined and gave as his opinion, which supported that of Dr. Vollmer, “that the overwhelming evidence would suggest that death was not directly related to the initial myocardial infarction, but rather the result of a new episode in the progression of the underlying disease process, coronary atherosclerosis. Any conclusion which attempts to relate death to the initial attack would assume a complication which is statistically much less likely (although possible).” The record indicates no further proceedings before the Board. The petition in the present case was filed October 26, 1961, and the respondents’ answer was filed November 14, 1961.

On February 8, 1962, a jury trial was waived by both sides, the case was submitted to Judge Foster apparently on the pleadings and the records of the Board, and briefs were filed. Judge Foster found that there was substantial evidence to support the findings of the Board, that the Board had exercised its discretion in acting thereon, and that there was nothing to show that its action was arbitrary, capricious, unreasonable or illegal; and he accordingly denied the petition. Judgment was entered for the respondents for costs on February 13, 1962. On March 9, 1962, the appellant’s trial counsel (one of whom had represented her before the Board) struck out their appearance, her present counsel entered the case and this appeal was filed.

On appeal the claimant contends that the action of the Board in denying the widow’s accidental death benefit was arbitrary, capricious and unsupported by substantial evidence. The Pension Ordinance makes no