Tron v. Prince George's County

BISHOP, Judge. Appellant, Henry Tron, a Prince George’s County firefighter, sought a disability retirement from the Prince George’s County Fire Service alleging service-related injuries to his neck and back. Pursuant to its authority under the County’s Fire Service Pension Plan, the Disability Review Board determined at an evidentiary hearing on September 1, 1983, that appellant was disabled but that his disability was not service connected. Appellant then filed a petition for writ of mandamus 1 in the Circuit Court for Prince George’s County seeking reversal of the Board’s determination.

The circuit court affirmed the action of the Board. Appellant raises three issues: I. Was appellant denied a fair hearing before the Disability Review Board because he was denied a reasonable opportunity to cross-examine adverse witnesses?

II

Did the trial court err in ruling that the opinion of Dr. Weintraub, Chairman of the Medical Advisory Board, had sufficient probative force to serve as the basis for the Disability Review Board's finding?

III

Is the Disability Review Board required to state findings of fact in support of its decision to grant or deny service-connected disability? ²⁵⁹ FACTS Appellant began working for Prince George’s County as a firefighter on July 1, 1966. On September 15, 1966, while stopped at a traffic signal in their ambulance, appellant and a co-worker were struck from behind by a car. The ambulance careened forward eight to ten feet into the rear of the car immediately in front of it. Appellant’s co-worker complained of back pains, and appellant’s head and neck began to ache as a result of his head snapping back on impact and hitting the back of the ambulance cab.

Another ambulance was summoned and both were taken to Washington Adventist Hospital. Appellant was x-rayed, examined and released. He was instructed to see his family doctor should complications arise. He returned to work four days later.

Approximately six months later, appellant began to feel occasional lower back pain which never disappeared. Yet he continued to work without interruption for the County. In 1978, he saw his family physician, Dr. Boyle, on two occasions: for a sore heel that spring, and in the fall for a pulled shoulder muscle which he sustained attempting to lift a sack of chicken feed. Appellant again visited Dr. Boyle in July of 1982; this time complaining of a sore and sometimes stiff back and neck.

After a full examination which included x-rays, Dr. Boyle found that appellant was suffering from an advanced degenerative joint disease in his cervical vertebra, or neck area, and mild lumbosacral strain. In July of 1982, appellant ended his association with the County Fire Service, and filed a claim for disability retirement. On June 29,1983, the Disability Review Board made the determination that appellant’s disability was non-service connected. According to § 4.3(c)(1) of the Plan, a non-service connected disability is defined as: [A] disability ... not caused by an injury or sickness suffered as a result of his performance of his duties as an Employee____ As a consequence, a recipient of a non-service connected disability receives 50% of his normal pay, which is taxable.

By contrast, a recipient of a service-connected disability ²⁶⁰ pension receives 70% of his normal pay, which is non-taxable. The Plan at § 4.3(c)(1), defines service-connected disability as: [A] disability ... caused by an injury or sickness suffered as a result of his performance of his duties as an Employee____ Appellant requested reconsideration by way of a full hearing before the Board. At the hearing on September 1, 1983, appellant argued that his disability was service-connected. In support of his contention, appellant adduced live testimony from Dr. Boyle that appellant’s disability was service-connécted because there was a lack of any other serious trauma to his cervical vertebra and the lack of any family history of serious degenerative disorders.

Moreover, in Dr. Boyle’s opinion, the 1966 accident was the only serious trauma which could have induced appellant’s advanced degenerative joint disorder at the age of 42. The County declined to present any witnesses for their argument that appellant’s disability was not service-connected. Instead, a booklet was introduced into evidence which contained, inter alia, the reports of three doctors who examined appellant: Dr. Mendelsohn, Dr. Abendschein and Dr. Lourie. 2 These doctors confined their examinations to appellant’s physical condition and did not address the issue of whether appellant’s disability was service-related or not. The booklet, however, did contain an opinion from the Medical Advisory Board’s Chairman, Dr. Weintraub.

Despite never having seen, examined or treated appellant, Dr. Weintraub concluded, based on the reports of Drs. Mendel ²⁶¹ sohn, Absendschein and Lourie, that appellant’s disability was not service-connected. This booklet was introduced into evidence over the objection of appellant’s counsel who argued, inter alia, that there existed no opportunity to cross-examine any of the doctors whose views were not elicited in live testimony. At the hearing’s conclusion, the Disability Review Board determined that appellant was, in fact, disabled; however, the nature of the disability was found to be non-service connected.

The circuit court affirmed the Board’s decision. Right to Cross-Examine On one hand, we have the well-established rule of administrative law that: [HJearsay evidence is admissible before an administrative body in contested cases and, indeed, if credible and of sufficient probative force, may be the sole basis for the decision of the administrative body. Redding v. Board of County Commissioners for Prince George’s County, 263 Md. 94, 110-11 , 282 A.2d 136 (1971), cert. denied, 406 U.S. 923 , 92 S.Ct. 1791 , 32 L.Ed.2d 124 (1972). On the other hand, the Court of Appeals has firmly established that: [W]hen an administrative board or agency is required to hold a public hearing and to decide disputed adjudicative facts based upon evidence produced and a record made, that a reasonable right of cross-examination must be allowed the parties.

Hyson v. Montgomery County, 242 Md. 55, 67 , 217 A.2d 578 (1966) (emphasis supplied). See also Rogers v. Radio Shack, 271 Md. 126, 129 , 314 A.2d 113 (1974); Town of Somerset v. Board, 245 Md. 52, 65 , 225 A.2d 294 (1966); Dembeck v. Shipbuilding Corp., 166 Md. 21, 27 , 170 A. 158 (1934); American Radio-Tel. Serv. v. Pub. Serv.

Comm’n, 33 Md.App. 423, 435 , 365 A.2d 314 (1976). Administrative agencies are not bound by “technical common law rules of evidence.” Dickson-Tidewater v. ²⁶² Supervisor, 273 Md. 245, 253 , 329 A.2d 18 (1974): In most applications this means that hearsay evidence is acceptable in an administrative hearing; however, the Court has also established boundaries regarding the extent of the admissibility of hearsay evidence. In Comm’n on Medical Discipline v. Stillman, 291 Md. 390, 422 , 435 A.2d 747 (1981), the Court stated: [W]hile administrative agencies are not bound to observe the ‘technical common law rules of evidence,’ they are not prevented from doing so as long as the evidentiary rules are not applied in an arbitrary or oppressive manner that deprives a party of his right to a fair hearing. For the reasons that follow we believe that the hearsay evidence in the case sub judice violated the limitation established in Stillman .

We look to the Pension Plan to determine appellant’s right to cross-examination. Section 4.3(b)(2) of the Plan provides: (2) The Participant whose disability is being determined shall be given the opportunity to examine any evidence presented to, or otherwise obtained by, the Disability Review Board in connection therewith, to comment on such evidence, and to introduce further evidence with respect thereto. The statute is ambiguous in terms of granting appellant an unqualified right to cross-examination. However, where regulations or written procedures are either silent or ambiguous, great weight will be given to administrative custom and interpretation.

Movement Against Destruction v. Trainor, 400 F.Supp. 533, 573 (1975) (citing Power Reactor Company v. Electricians, 367 U.S. 396, 401-08 , 81 S.Ct. 1529, 1531-35 , 6 L.Ed.2d 924 (1961)). Although Maryland’s Admin.Proc. Act does not apply, 3 we note that it is not only custom and ²⁶³ practice but that the law requires, in contested cases within the ambit of that Act, each party be given the right to cross-examine the opposing party’s witnesses. Md. State Gov’t Code Ann. § 10-208(e)(3) (1984).

This fact, coupled with Hyson, supra, clearly demonstrates that the opportunity to cross-examine witnesses is a requirement of administrative adjudicatory hearings. Because no live witnesses were produced at the hearing, appellant was deprived of the opportunity to cross-examine. The case sub judice is remarkably similar to Richardson v. Perales, 402 U.S. 389 , 91 S.Ct. 1420 , 28 L.Ed.2d 842 (1971). In Richardson , Pedro Perales claimed disability insurance benefits under the Social Security Act as a result of a back injury sustained while at work.

At the hearing, the state agency, seeking to deny his claim, introduced reports of four doctors who examined Mr. Perales. Each report was damaging to Perales’ claim. Perales’ attorney objected on the basis that there was no opportunity to cross-examine the physicians. The objection was overruled.

The claim was denied. Perales argued that he was deprived of procedural due process because the evidence against him was exclusively hearsay and, therefore, he was denied his right to cross-examination. The Richardson Court rejected this contention, holding that the medical reports met the statutory formula of “substantial evidence” necessary to deny the claim. The Court decided that Perales forfeited his right to cross-examine the doctors by his failing to utilize the statutory subpoena power which would have compelled the presence of the doctors at the hearing.

The Court stated: ²⁶⁴ We conclude that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician. Richardson v. Perales, 402 U.S. at 402 , 91 S.Ct. at 1428 (emphasis supplied). The Court, in denying the due process claim, placed great emphasis on the subpoena power granted to all claimants under the Social Security Act. See 20 C.F.R. § 404.926 .

The Court, in essence, declared that a claimant cannot be heard to complain about a lack of opportunity to cross-examine witnesses when the claimant has the power to subpoena the witnesses and fails to do so. 4 Maryland administrative review boards have subpoena power. See Md. Health-General Code Ann. § 19-364(h) (1982, 1986 Cum.Supp.) (subpoena power granted for appeals regarding sanctions against health care institutions); Md. Health Occ.Code Ann. § 6-316(d) (1982) (subpoena power granted to mortician licensing hearings); Md. Health Occ.Code Ann. § 7-314(f) (1982) (subpoena power granted nursing home licensing hearings); Md. Health Occ.Code Ann. § 12-312(e) (1982) (subpoena power granted the Maryland Board of Pharmacies). The Prince George’s County ²⁶⁵ Disability Review Board, however, does not provide claimants with subpoena power. 5 Maryland case law supports the Richardson holding. In Eichberg v. Maryland Bd. of Pharmacy, 50 Md.App. 189 , 436 A.2d 525 (1981), a pharmacist appealed a ruling by the Maryland Board of Pharmacy which revoked his license.

Earlier in a criminal proceeding, Eichberg entered an Alford guilty plea to a charge of dispensing a controlled dangerous substance without a prescription. Thereafter, the Pharmacy Board held a hearing to determine whether appellant’s pharmacy license should be revoked. At the hearing the transcript of the testimony of a key State’s witness in the criminal proceeding was introduced into evidence. Among other things, the appellant objected to the introduction of the transcript because he could not cross-examine the witness at the license revocation hearing.

The transcribed testimony of Ms. Buckley at the previous criminal trial was admissible because it was taken under oath, she was subject to cross-examination and the witness was unavailable to testify in person. The record clearly demonstrates that Ms. Buckley did not appear at the hearing before the Board because she was beyond the ²⁶⁶ jurisdiction of the Board and the State's effort to produce her was unsuccessful. The Board's charges were essentially the same as those tried in the criminal case. Ms. Buckley testified under oath at a public trial.

The appellant, as the defendant in the criminal trial and the respondent in the action before the Board, was afforded an opportunity to cross-examine Ms. Buckley at the criminal trial and from the record it is apparent that he extensively availed himself of that opportunity. Two cases from other jurisdictions are factually similar to the case at bar; Zimmerman v. Board of Regents, 31 App.Div.2d 560, 294 N.Y.S.2d 435 (1968) and Davis v. Board of Medical Examiners, 108 Cal.App.2d 346 , 239 P.2d 78 (1951). In Zimmerman, supra, the Board of Regents of the state University of New York suspended a physician’s license to practice medicine for one year. At the hearing the transcribed testimony of two witnesses at the criminal trial was introduced to substantiate the charges against Zimmerman.

On appeal, the physician challenged the admissibility of the testimony of the witnesses on the ground that they did not appear at the administrative hearing and as a result the doctor was deprived of his right to cross-examine. The court found