Voss v. Mayor of Baltimore

Horney, J., delivered the opinion of the Court. In this case, in which a firefighter, claiming incapacitation as the result of having been injured in the line of duty, applied to the Board of Trustees of the Employees’ Retirement System of Baltimore City for retirement, the sole question on appeal is whether the applicant was entitled to an accidental or a disability retirement allowance. When the board granted retirement but awarded only an ordinary disability allowance, the applicant petitioned the Baltimore City Court for a writ of mandamus to compel the board to allow him accidental retirement benefits. And when the lower court dismissed the petition for mandamus, this appeal from the order of dismissal followed.

The appellant had been an employee of the fire department for about twenty years. There is no dispute that he has a back injury and that he incurred it while on duty. The denial of accidental retirement benefits was based on the finding of the board that the injury was not the result of an accident within the meaning of the pension ordinance—subsection (5) of § 6 of Article 23 of the Baltimore City Code of 1950 as amended. The record shows that on a day in the latter part of February in 1963, the appellant and two other firemen, pursuant to an order of their lieutenant to remove snow from the driveway in front of the engine house, proceeded, as was the custom, to push the snow to the edge of the driveway and then toss it over a hedge onto an adjoining lawn.

The scoops and shovels used were the usual ones. And the lifting and tossing ³⁴⁸ of snow was performed in the usual manner. While there was evidence to the effect that the snow was “very wet” and “heavier” than usual, it appears that the basis for such evidence was in conflict with other evidence in the record. 1 As the appellant was lifting snow from a pile about twenty inches high he injured his back. He was unable to continue working and was relieved from duty.

A medical examination disclosed a herniated intervertebral disc which necessitated surgery. It is clear from the testimony of the appellant at the two hearings before the retirement board that he had neither slipped nor fallen. And while part of his testimony as to what happened was not deviatory, other parts of it are obviously inconsistent and conflicting. For instance, at the first hearing, he testified in part as follows: “Q, Will you explain what happened immediately before you felt this pain in your back?

Just what were you doing and what happened ? A. I was shoveling the snow over the hedge. * =|: * Q. Now, was there anything unusual that happened while you were shoveling this particular amount of snow ? Did you slip or fall or anything like that ? A. Not a thing.

Not a thing. The only thing that I’ve been trying to figure out it just must have been a little too much on the shovel. You know, we use a pretty good size shovel, it’s not one of those small things and we have really big scoops and I was shoveling and that was it. Q. Was there more on the shovel at that time than other times ? ³⁴⁹ A. I couldn’t—I couldn’t say that * * *.

Actually, you don’t measure that stuff. You pick up some. Sometimes there’s a little bit and sometimes there’s a whole lot. * =¡= * Q. Was there any difference at all between what was happening at that time than at previous times when you shoveled snow ? A. There was no difference.

There was no difference. We just worked the same way.” Whereas at the second hearing, he testified in part as follows: “Q. Now, were you doing any of that scooping? A. At first I was. Q. Now, just before you were injured what were you doing?

Were you scooping or were you shoveling? A. I was shoveling it over the hedge at that time. This pile was getting large, around 20 inches or so, you know— Q. Now, were you shoveling from that mound of snow? A. I was working off of that mound of snow.

Q. Now, will you tell the board exactly what happened immediately preceding the injury to your back? A. First we have a good solid shovel, a short hand [led] shovel, very wide. In fact, it is called a scoop. It is a large shovel.

It holds a good amount, a very good amount and we use that on regular outside work. * * *. And I took that shovel in there and I had to come up and it give me a jolt or something. 1 had put a little extra effort on it to get it over the hedge. Q. Were you shoveling from the bottom of the mound along the concrete ? A. I was shoveling along the concrete, yes sir. ³⁵⁰ Q. But you did not slip or fall ?

A. No, sir, I did not slip or fall. Q. Why didn’t you tell the board the details of this incident when you [were asked at the first hearing] ? Why didn’t you go into greater detail ? A. Well, the question just wasn’t put to me that away. * 5¡C * Q. But you do now actually testify that at the time you picked up this large bite of snow you felt a jerk or jolt and then immediately you felt pain?

A. Absolutely and we talked about this thing. I recall that incident. Q. And this was immediately, right after that you felt the pain ? A. That was the worst shovel full I had picked up and something snapped I guess.

Q. And did you testify that you had to exert a little more effort to get this particular shovel full over? Over the hedge ? A. What? Q. I said did you exert yourself quite a bit ?

A. I did exert myself.” And on cross-examination, he testified— “Q. Mr. Voss, isn’t it a fact, however, that this is the manner in which the snow is always removed from the driveway at this engine house ? A. That is right, sir. Q. Is it also a fact, Mr. Voss, that this particular type of shovel or scoop * * * is one that is always used for the shoveling of snow ? A. That is correct.

The large scoops get most of it up first over near the hedge and then [we] use large shovels. We carry them * * * and use [them] to get the load over the hedge onto the lawn. * * On the basis of this testimony, and the other evidence in ³⁵¹ the record, the board, finding that the injury incurred by the appellant was not the result of an unusual strain or exertion or of an unusual condition of employment, denied the appellant the accidental retirement allowance he had applied for. Since we think the decision of the board was correct, we must affirm the refusal of the lower court to issue a writ of mandamus. On appeal the appellant, claiming that his disability was due to an accidental injury arising from unusual strain and unusual working conditions, contends that the refusal of the board to award him an accidental retirement allowance was arbitrary.

The appellee, on the other hand, contends that the decision of the board was correct and should not be disturbed. We agree with the appellee. In the first place, as we read the record, the testimony of the appellant is so inconsistent and contradictory as to make it doubtful whether it should be the basis of a legal conclusion. When he was asked at the first hearing whether there was “any difference at all between what happened at that time [meaning the day he was injured] than at previous times when you shoveled snow,” he stated there was no difference and added “we just work the same way.” Although the appellant also said at the same hearing that “not a thing” unusual had happened while he was tossing snow over the hedge, he stated at the second hearing that he had “put a little extra effort to get [the snow] over the hedge” and that as a result of picking up a “large bite of snow” he felt “a jerk or jolt” and then “pain” in his back.

In reply to a question, at the first hearing, as to whether there was more snow on the shovel “at that time than other times” he replied he “couldn’t say,” yet, at the second hearing, in reply to a similar question he stated it was the “worst shovel