Sweeney v. Montgomery County

SALMON, Judge. On February 13, 1990, appellant, William A. Sweeney, made application to Montgomery County for “service related disability” retirement benefits provided for County employees by § 33-43 of the Montgomery County Code (1984, as amended). The County’s retirement system administrator (the Administrator) found that Mr. Sweeney was not disabled. Mr. Sweeney appealed the denial, and on December 13, 1990, hearing examiner Richard J. Sincoff conducted a hearing on the matter.

On January 14, 1991, Mr. Sincoff rendered a decision in which he found: 1) that Mr. Sweeney suffered a work-related disability due to an accident on December 10, 1986; 2) that as a result of the accident he suffered a 10 percent temporary-partial disability; and 3) that he should be re-evaluated in one year to determine whether his condition was permanent. Based on Mr. Sincoffs decision, the Administrator recommended to the County that Mr. Sweeney receive a “Temporary-Partial Service Connected Disability Retirement pursu ¹⁹⁰ ant to Section 33-43(e) [of the County Code] ... [and] in accordance with § 33-43(h)(2) partial benefits” would be 25 percent of final earnings. The Administrator’s recommendation was appealed by Mr. Sweeney to the Montgomery County Merit System Protection Board (the Board), which, on June 17, 1991, sustained the Administrator. Mr. Sweeney then appealed to the Circuit Court for Montgomery County.

The circuit court, on November 21, 1991, remanded the case to the Board for a de novo hearing on all issues. The Board, on March 4, 1993, held a second hearing. On June 21,1993, the Board issued a written decision in which it “reaffirm[ed] its decision of June 17, 1991,” thereby sustaining the Administrator’s decision. Mr. Sweeney again appealed to the circuit court.

This time the circuit court affirmed the decision of the Board, and Mr. Sweeney noted a timely appeal to this Court. I. Appellant, age 54, became employed as a Montgomery County firefighter in 1966. On December 10, 1986, he was helping to extinguish a fire when an oxygen cylinder exploded. The force of the explosion hurled him some 20 feet.

He was taken to Holy Cross Hospital where his shoulder, neck, and back were x-rayed. The x-rays were negative, and he was released. In February 1987, about seven weeks post accident, appellant returned to his job as a Master Firefighter/Rescuer. The job specifications for this position cover more than three pages, but in general, the job is frequently strenuous.

A firefighter must be well-conditioned and capable of lifting equipment weighing at least 100 pounds. Some duties are more sedentary. For instance, a Master Firefighter/Rescuer’s duties include: conducting in-service training and classroom instruction for firefighters in firefighting evolutions, hazardous materials, and apparatus practices; providing training and instruction in the use of fire/rescue equipment and apparatus; attending training sessions; studying and analyz ¹⁹¹ ing technical books and bulletins to assist in making recommendations for changes in existing programs and/or the development of new training programs; enforcing the County fire safety code and the State fire prevention code through inspections and testing; performing and leading personnel in the receipt of radio and telephone fire, rescue, and related calls; relaying emergency calls to the appropriate fire department, rescue squad, or other agencies; scheduling work assignments; and providing input to supervisors in evaluating the activities of personnel. According to appellant, he returned to work even though he had significant and recurring physical problems while on duty.

The main problems were intermittent blurry vision and pain in his neck, low back, and left shoulder. About the same time that he returned to work, appellant began a fifteen hour per week part-time job as a bus driver. He worked at this part-time job for approximately two and one-half years—until September 1989. Appellant stopped working as a Master Firefighter/Rescuer on October 10, 1989.

On his last day of work, he experienced pain in his back and legs and was placed on leave. He retired from the fire department on February 1, 1991. Upon retirement, appellant began a 20-30 hour per-week job driving a twenty-five passenger bus. As of the March 4, 1993 hearing before the Board, he still held that job.

The exact amount of time appellant missed from work prior to his retirement is not in the record. The record does show that he missed 130 hours in 1987, and an additional 130 hours between March and June 1988. A form dated June 9, 1989, which was considered by the Board, shows that he had lost no time from work due to illness or accident since his last annual physical, 1 that he had been taking no drugs or medication, and that he currently was not on restricted duty. ¹⁹² Mr. Sweeney testified before the Board, both in 1991 and 1993, that he did not believe that he could perform the duties of a Master Firefighter/Rescuer. He produced testimony and medical reports that, if believed, showed that as of the March 4, 1993 hearing he had constant pain in his lower back with radiating pain down the front of his thighs and intermittent tingling sensation in his right foot, which occasionally radiated up the back part of his right thigh and calf.

He also had pain in his left shoulder. According to Mr. Sweeney’s evidence, these physical problems were all caused by the December 10, 1986 accident. When it rendered its June 21, 1993 decision, the Board had before it the reports of seven orthopedic surgeons (Harvey Mininberg, Eli Lippman, German Nader, Mark Rosenthall, Clifford Hinkes, E. Masoud Pour, and Erroll Bennett), two neurosurgeons (Mark Klein and Octavio Palanco), a neurologist (Brian Avin), and a family practitioner (Donald Frye). These experts evaluated Mr. Sweeney’s physical condition, and to say the least, there was a wide range of opinions.

For instance, Dr. Hinkes, in his last report, dated July 10, 1991, stated that he would recommend no “further medical treatment for Mr. Sweeney” because “he has exhausted all medical tests and treatment____” Dr. Hinkes “would allow Mr. Sweeney to return to his old job as a fire fighter, full-time, full duty without restriction.” Dr. Pour and Dr. Nader agreed with Dr. Hinkes. On the other hand, Dr. Rosenthall was of the view that Mr. Sweeney suffered from a herniated disc at the L-4-5 level due to the subject accident; that he would greatly benefit by surgery; but that even with surgery he would be “permanently disabled from functioning at his usual occupation as a firefighter in the future.” Dr. Frye concurred with Dr. Rosenthall’s opinion. Doctors Mininberg, Lippman, Klein, and Palanco all treated Mr. Sweeney and wrote reports that, broadly speaking, were more favorable to appellant’s position than were the reports of Drs. Hinkes, Pour and Nader.

In his last report, dated July 27, 1987, Dr. Mininberg opined that Mr. Sweeney had a chronic neck and low back problems; Dr. Lippman, in his report of October 30, 1987, said that his ¹⁹³ findings in regard to Mr. Sweeney’s low back problem were “very minimal in nature” but that Mr. Sweeney had “significant findings” in his neck and mid-back area (19)6% total impairment of the whole body); Dr. Klein in his report of November 2, 1989, noted that appellant had a bulging disc at the L 3 4 level and that he should not return to work as a firefighter; Dr. Palanco, in a report dated March 6, 1990, said that a myelogram showed a central disc herniation at L-4-5 and opined that he did not foresee any early resumption by Mr. Sweeney of his duties as a firefighter. Dr. Bennett evaluated Mr. Sweeney at the request of the Maryland Workers’ Compensation Commission. His report was presented to the Board by the appellant. Dr. Bennett expressed an opinion in his report of October 8, 1991 that was somewhere between Dr. Hinkes’s “no disability—no treatment needed” view and Dr. Rosenthall’s “permanent injury—disc surgery needed” opinion.

Dr. Bennett’s October 16, 1992 report, the most recent reviewed by the Board, stated: IMPRESSION: This is a rather involved and complex case. At the present time, the patient’s level of activity is not prevented by his complaints. It is, perhaps, unlikely that even if he were to undergo a successful fusion, that he would be able to return to his former occupation. At the present time, a lot of his symptomatology and physical findings are the result of a muscular ligamentous limitations, secondary to chronic back pain.

RECOMMENDATIONS: The patient should recommence physical therapy and to be reevaluated at sometime when the therapist feels that he has reached maximum medical improvement. I feel the patient also needs to have a brace as this has been demonstrated to give him good relief of his symptoms. Further, I think reevaluation would be appropriate especially in view of the fact the patient has not reached maximum medical improvement at the present time and that he remains significantly partially disabled. I do not feel that it would be appropriate for this patient to undergo a spinal fusion at present.

I think that his treating physician may want to review his condition 20 months after ¹⁹⁴ the initial recommendation [of surgery] to see if any new findings are present. * * * * * * Besides the testimony of Mr. Sweeney and the medical reports of the eleven physicians mentioned above, the Board received in evidence at its March 4, 1993 hearing an Order of the Workers’ Compensation Commission of May 4, 1988. The Commission found that as a result of December 10, 1986, Mr. Sweeney suffered a “PERMANENT PARTIAL DISABILITY: 10% under ‘Other Cases’ industrial loss of use of the body as a result of the injury to the neck (5%) and low back (5%).” (Emphasis in the original.) Additionally, the Board had before it a transcript of Mr. Sweeney's testimony before Hearing Examiner Sincoff. On June 21, 1993, the Board issued a five-page opinion in which it accurately reviewed 1) the procedural history of this case, 2) the testimony of Mr. Sweeney, and 3) a substantial number, but not all, of the reports of the eleven physicians. Although the reports of the physicians showed that there were serious differences of medical opinion, the Board simply found that “[t]here are conflicting medical reports as to the extent of [Mr. Sweeney’s] injuries and whether surgery would correct the problem.” The other findings of fact were that: 1.

A review of the testimony as well as the exhibits fails to indicate that Mr. Sweeney has mét evidentiary standards set forth in Section 33^3(e) of the Montgomery County Code. 2. A review of the testimony indicates that Mr. Sweeney has not met the burden of proof under Sections 2A-8 & 2A-10(b) of the Montgomery County Code. 2 ¹⁹⁵ 3. Mr. Sweeney did sustain a work-related back injury. 4. Mr. Sweeney has been working regularly as a bus driver. 5.

Surgery was recommended to Mr. Sweeney by doctors Palanco, Rosenthall, and Frye, but Mr. Sweeney has refused to have the surgery. 6. Physical therapy was recommended to Mr. Sweeney in the latter part of 1989 and as recently as October 16, 1992 by Dr. Bennett but Mr. Sweeney “has refused” it. 7. The reports of Dr. Pour dated September 23, 1992 and Dr. Bennett dated October 16, 1992 “add[ed] nothing new to this case.” In rendering its decision, the Board failed to indicate its view as to what proof a firefighter would need to present in order to show that he had a permanent total disability within the meaning of § 33-43(e) of the Montgomery County Code. The Board merely concluded: “It is the opinion of the Board, that the testimony indicates by a preponderance of the evidence that [Mr. Sweeney] is not entitled to a Total Permanent Service Connected Disability Retirement Benefit.” ¹⁹⁶ II.

Appellant makes two arguments in this case. First, he argues that he was entitled to a total permanent service connected disability and that the Board decision to award a temporary partial disability was “arbitrary, capricious ... unreasonable and unlawful” because it was not based on substantial evidence. Second, he contends that the Board failed to meet the legal requirement that it apprise the parties of the facts upon which it relied in reaching its conclusions. We shall address the second issue.

For reasons explained below, we need not address the first issue.

III

Section 2A-10(a) and (b) of the Montgomery County Code is applicable to this case and provides: Sec. 2A-10. Decisions. (a) Content. All recommendations and/or decisions of the hearing authority except rulings on preliminary matters or on motions or objections shall be in -writing, based on evidence of record and shall contain findings of fact, conclusions of law and an appropriate decision and order; provided, however, any decision stipulated or consented to by the parties need only be reflected by an appropriate written order or consent decree.

(b) Evidence required. All recommendations and/or decisions of the hearing authority shall be based upon and supported by a preponderance of the evidence of record. (Emphasis added.) The role of agency findings of fact in judicial review is crucial. As we recently stated in Baines v. Board of Liquor License Commissioners for Baltimore City, 100 Md.App. 136, 143 , 640 A.2d 232 (1994) (quoting United Steelworkers v. Bethlehem Steel, 298 Md. 665, 679 , 472 A.2d 62 (1984)): Judicial review of administrative action differs from appellate review of a trial court judgment.

In the latter context the appellate court will search the record for evidence to ¹⁹⁷ support the judgment and will sustain the judgment for a reason plainly appearing on the record whether or not the reason was expressly relied upon by the trial court. However, in judicial review of an agency action the court may not uphold the agency order unless it is sustainable on the agency’s findings and for the reasons stated by the agency. (Emphasis in original.) Courts of this State have consistently required that administrative agencies make findings of fact and conclusions of law. “At a minimum, one must be able to discern from the record the facts found, the law applied and the relationship between the two.” Forman v. Motor Vehicle Administration, 332 Md. 201, 219-22 , 630 A.2d 753 (1993); Ocean Hideaway Condominium Association v. Boardwalk Plaza Venture, 68 Md.App. 650, 656-57 , 515 A.2d 485 (1986); State Commission on Human Relations v. Malakoff, 273 Md. 214, 229 , 329 A.2d 8 (1974). In Baltimore Gas and Electric Co. v. Public Service Commission, 75 Md.App. 87 , 540 A.2d 820 (1988), we said: [Tjhere are three principal reasons for the findings’ requirement.

The most obvious today is the overriding policy against government operating in secret.... Requiring articulation of the reasoning process evokes care on the part of the decider: “to set in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of that duty. Often a strong impression of that, on the basis of the evidence, the facts are thus and so, gives way when it comes to expressing that impression on paper.” In the second place, a losing party has a right to know why he lost his case. The requirements of findings meets the elementary demand of those injured by an agency decision to be told “the reason why.” Findings serve as an explanation to the parties as to the basis for the decision.

Thirdly and the reason most frequently emphasized, is the role of the findings requirement in facilitating judicial review. ... Id., 75 Md.App. at 97-98 , 540 A.2d 820 (quoting B. Schwartz, Administrative Law, § 140 (1976) (footnotes omitted)). See ¹⁹⁸ also Forman, supra, 332 Md. at 220-221, 630 A.2d 753 (an appellate court cannot review an agency’s decision under the “substantial evidence” or “arbitrary and capricious” standards unless the agency’s opinion makes findings of fact on all material issues and clearly states the rationale behind the agency’s action). The Board’s findings of fact 3 plainly did not satisfy the requirement that the agency must “resolve all significant conflicts in the evidence.” Malakoff, supra; Forman, supra.

The most significant evidentiary conflict in this case was the wide divergence of opinion among the eleven doctors whose reports were reviewed by the Board. The Board made a “fmding[ ] of fact” that “there are conflicting medical reports as to the extent of [Mr. Sweeney’s] injuries and whether surgery would correct the problem” but made no attempt to articulate how it resolved those conflicts. Moreover, the Board failed to make any finding of fact that would support its conclusion that Mr. Sweeney’s disability was temporary rather than permanent. Additionally, the Board did not say whether it believed Mr. Sweeney’s testimony regarding his current physical problems, and the Board gave no indication of which, if any, of the