Thomas v. STATE RETIREMENT AND PENSION SYSTEM

MEREDITH, J. Appellant, James H. Thomas, formerly worked for the Maryland State Police (“MSP”). In response to Thomas’s failure to properly perform his duties, the MSP initiated disciplinary proceedings against him in 2001. As a result, Thomas sank into a state of depression that worsened over time and eventually led him to retire due to disability in 2003. The State Retirement and Pension System of Maryland (“SRPS”), appellee, permitted Thomas to take a disability retirement and receive normal disability benefits.

But, Thomas also sought enhanced “special disability benefits” because he alleged that his disabling depression was attributable to his duties with the MSP. In order to qualify for special disability benefits, the retiree must show that he is “totally and permanently incapacitated for duty arising out of or in the course of the actual performance of duty without willful negligence by the [retiree]” Maryland Code (1993, 2004 Repl.Vol.), State Personnel and Pensions Article (“SPP”), § 29 — 111(b)(1) (emphasis added). After several administrative hearings, SRPS denied Thomas’s application for special disability benefits. ²⁴² The SRPS ruled that Thomas’s willful misconduct was clearly a contributing factor that led to his depression, and denied his claim for special disability benefits because he had not proved that his condition arose “without willful negligence” on his part, as required by SPP § 29 — 111(b)(1). Thomas petitioned for judicial review in the Circuit Court for Baltimore City, which determined that there was substantial evidence to support the agency’s ruling and affirmed the decision of the SRPS.

Thomas then appealed to this Court, and asserts that the SRPS erred in ruling that the disability arose from his own willful negligence. We agree with the circuit court’s decision to affirm the ruling of the SRPS. FACTS AND PROCEDURAL HISTORY Thomas began working as a State trooper for the Maryland State Police in 1971. After he suffered a series of panic attacks while on the road from 1978 to 1980, he was transferred to the MSP’s Automotive Safety Enforcement Division (“ASED”), after which the panic attacks ceased.

Within the ASED, Thomas’s job was to audit Maryland’s authorized vehicle inspection stations. In January 2000, the MSP issued Special Order 23-001, which established new, uniform ASED procedures for the auditing of vehicle inspection stations. It is undisputed that Thomas was aware of the new procedures and failed to comply with them. After his superiors discovered that Thomas was not conducting thorough audits and that he was submitting false reports regarding his audits, the MSP initiated disciplinary proceedings against him by serving Thomas with an official Notification of Complaint on March 13, 2001.

The receipt of the Notification caused Thomas to experience feelings of depression, anxiety, anger, and agitation, interfering with his job performance. Accordingly, the MSP referred Thomas to Caren DeBernardo, Psy.D., H.S.P.P., a licensed psychologist, for treatment. Thomas had his first therapy visit with Dr. DeBernardo on September 6, 2001. Dr. DeBernardo later testified that, at this first meeting, Thomas was ²⁴³ “feeling depressed.

He was upset about the situation at work and that he had been reprimanded and was feeling anxious and agitated at the time.” Dr. DeBernardo noted that Thomas “basically was productive and working well up until” the time he came in for treatment. In October 2001, Thomas and his counsel purportedly negotiated a settlement agreement with the MSP, according to which Thomas would receive a thirty-day suspension without pay but remain in ASED. The parties dispute how firmly MSP committed to this settlement agreement. But the MSP informed Thomas in November 2001 that there would be no settlement, and that the charges against him would be adjudicated.

Thomas contends that when the MSP reneged on the settlement agreement, that traumatic incident exacerbated his pre-existing depression, insomnia, anger, and obsession over the disciplinary proceedings against him. As a result of Thomas’s condition progressing to a more serious depressive disorder, Thomas stopped working and went on sick leave at the end of November 2001, and he never returned to active duty. In January 2002, Bruce Leopold, M.D., a psychiatrist, diagnosed Thomas with a Major Depressive Illness. On March 1, 2002, the MSP Administrative Hearing Board found Thomas guilty of neglect of duty, submitting inaccurate reports, and submitting false reports.

The Hearing Board recommended a combined sanction of sixty days of suspension without pay, a one-year demotion from Trooper First Class to Trooper, and transfer out of ASED. Following the adjudication, Thomas’s condition further deteriorated, and, in October 2002, Daniel C. Gutkir, Ph.D., diagnosed Thomas with Major Depressive Disorder. The Superintendent of the MSP adopted the Hearing Board’s findings and sanctions. Thomas petitioned for judicial review in the Circuit Court for Anne Arundel County.

In January 2003, the circuit court remanded the case for additional fact-finding in relation to the sanctions. Pursuant to additional findings by the Board, the MSP again imposed the same sanctions. ²⁴⁴ On April 15, 2003, Thomas applied to the SRPS for special disability retirement benefits, as opposed to the less generous ordinary disability retirement benefits. In order for a retired member of the SRPS to be eligible for ordinary disability benefits, the Medical Board must certify that he “is mentally or physically incapacitated for the further performance of the normal duties of the member’s position.” SPP § 29 — 105(2)(i). To qualify for special disability benefits, an MSP retiree must be “totally and permanently incapacitated for duty arising out of or in the course of the actual performance of duty without willful negligence by the member.” SPP § 29 — 111(b)(1).

On June 26, 2003, the SRPS Medical Board recommended approving ordinary disability benefits but denying special disability benefits, on the ground that Thomas’s disability did not arise out of or in the course of the actual performance of duty. In response to Thomas’s request for reconsideration, the Medical Board affirmed its previous recommendation, which the SRPS accepted on July 22, 2003. On August 4, 2003, Thomas, again requested reconsideration. Sometime in 2003, Dr. DeBernardo’s diagnosis changed to Major Depressive Disorder, due to Thomas’s worsening symptoms.

In a letter dated October 23, 2003, to Thomas’s attorney, Dr. DeBernardo summarized the progression of Thomas’s symptoms, and stated: “[Thomas] reported that these symptoms began immediately following charges brought against him by his employer — the Maryland State Police.” Dr. DeBernardo’s letter of October 23, 2003, continued: Mr. Thomas was initially diagnosed with Adjustment Disorder with Depressed and Anxious Mood. (309.28). However, since symptoms worsened over time and continued for over two years, his diagnosis was changed to Major Depressive Disorder (296.23). Prior to the allegations of misconduct, there was no reason to believe that Mr. Thomas would not continue to be an effective employee.

In addition, his depression began immediately following the allegations and worsened with the ²⁴⁵ increased stress associated with the disciplinary actions, hearing, appeal, and pending retirement. Thomas retired on November 1, 2003. The next year, on August 5, 2004, the Medical Board reaffirmed its recommendation that Thomas receive ordinary disability benefits, which recommendation the SRPS adopted on August 17, 2004. On September 8, 2004, Thomas appealed to the Office of Administrative Hearings (“OAH”).

Both Thomas and the SRPS filed motions for summary judgment. On November 2, 2005, the presiding Administrative Law Judge (“ALJ”), Gus Avery, issued a proposed decision, ruling that Thomas’s medical condition did arise out of the performance of duty— namely, participation in the disciplinary procedure against him — but that it resulted from his willful negligence in failing to comply with the new ASED procedures. Accordingly, ALJ Avery recommended that the SRPS deny Thomas’s claim for special disability benefits under SPP § 29 — 111(b)(1). Thomas noted exceptions to the proposed decision.

On February 21, 2006, the SRPS held an exceptions hearing. On March 21, 2006, SRPS remanded the case to the OAH for an ALJ to conduct “a full evidentiary hearing.” The order for remand instructed the ALJ to answer the following question: Did the Claimant’s depression disorder with anxiety, for which he has been determined to be totally and permanently incapacitated for duty, arise out of or in the course of the actual performance of duty without willful negligence by the claimant? In addition, the Board asked that the ALJ “make findings of fact on the issue of willful negligence and whether the Claimant is free from willful negligence with respect to work-related event(s) or activity which the Claimant argues is the cause of his permanent psychiatric disability.” On August 9, 2006, ALJ Stephen Nichols conducted the remand hearing. Among the witnesses who testified at the administrative hearing on August 9, 2006, was Thomas’s psychologist, Dr. DeBernardo, who testified as an expert in the ²⁴⁶ field of psychology and psychotherapy.

Describing her first day of treating Thomas, she testified: “Mr. Thomas presented feeling depressed. He was upset about the situation at work and that he had been reprimanded and was feeling anxious and agitated at the time.” When asked if she had “an opinion as to the root or the cause of’ Thomas’s major depressive disorder, she testified: “Well my opinion would be that he was feeling depressed and upset and his symptoms manifested immediately following the disciplinary issues that were placed upon him instantly and his reaction to that.” On October 5, 2006, ALJ Nichols issued his proposed decision, portions of which were adopted in the Final Decision of the SRPS that is the subject of this appeal. Among other findings of fact, ALJ Nichols made the following critical finding: 36. The Claimant is totally and permanently incapacitated for duty as a result of depressive disorder with anxiety.

The Claimant’s Major Depressive Disorder was caused by the stress he experienced as a result of the official Notification of Complaint, the MSP rescinding of the settlement of the administrative charges and the adjudication of the administrative charges by the State Police Board. ALJ Nichols agreed with ALJ Avery’s recommendation to deny Thomas’s application for special disability benefits. ALJ Nichols found that the disabling condition did not occur “without willful negligence” on the part of Thomas. ALJ Nichols summarized the events that led to charges being filed by the MSP against Thomas, including an investigation that involved a meeting between Thomas and his supervisors to review discrepancies in his inspection reports.

After that meeting, Thomas’s supervisors began re-inspecting his assigned stations, and turned up