Opinion
C. A. PC-2021-02807
08-18-2022
JOSEPH PALOMBO v. EMPLOYEES' RETIREMENT SYSTEM OF RHODE ISLAND
For Plaintiff: Harry J. Hoopis, Esq. For Defendant: Michael P. Robinson, Esq. Larissa B DeLisi, Esq.
Providence County Superior Court
For Plaintiff: Harry J. Hoopis, Esq.
For Defendant: Michael P. Robinson, Esq. Larissa B DeLisi, Esq.
DECISION
MCHUGH, MAGISTRATE J.
Appellant Joseph Palombo (Appellant) appeals from the decision of the Employees' Retirement System of Rhode Island (ERSRI or Board), wherein the Board affirmed the 01/08/2021 reconsideration decision of the Disability Subcommittee (Subcommittee). In that decision, the subcommittee determined that Appellant should be denied Appellant's request for an accidental pension. This was a reconsideration of a July 8, 2020 ERSRI decision to grant Appellant's request for an ordinary pension but deny his request for an accidental pension. This case is now before this Court for a final review of the Board's decision. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
I Facts and Travel
At the time of Appellant's application to ERSRI, he was a 57-year-old State Building and Grounds Coordinator employed by Rhode Island College. (Recons. Decision at 1.) Appellant filed his initial Disability Retirement Application on April 22, 2019, claiming that on November 6, 2018, he sustained nerve damage to the right hand and "arm-partial loss of use-left hand and right." Id. Additionally, Appellant submitted a Rhode Island College Incident Injury Form which was dated November 7, 2018, indicating that he was disabled due to carpal tunnel syndrome. Id.
Linked to his application was an Applicant's Physician's Statement for Accidental Disability form which was completed by Appellant's doctor, Eric Walsh, M.D. Id. Dr. Walsh concluded that Appellant had a work-related disability, and that Appellant's work involved repetitive gripping and grasping on vibrating tools. Id. at 1-2.
Appellant obtained an initial consultation from Dr. Gregory Austin after being recommended to him by his primary care physician. (Hr'g Tr. 7, Jan. 8, 2021 (Tr.).) Medical records from Dr. Austin dated June 12, 2018 include complaints of bilateral hand pain. Id. Dr. Austin indicated that the Appellant didn't describe any known injury, but instead had many minor injuries to his hands. (Recons. Decision at 2.) Appellant was examined by Dr. Lee who provided a second opinion after obtaining an initial diagnosis from Dr. Austin. (Tr. at 8.) Appellant booked an appointment with the doctor after finding him online. Id. Medical records from Dr. Lee in September 2018 referenced a sprain to Appellant's left thumb, but there was no further description given. (Recons. Decision at 2.) In Dr. Lee's initial report from June 20, 2018, he indicated that there was no injury to the left thumb, and instead diagnosed the Appellant with unilateral primary osteoarthritis of the first carpometacarpal joint of his left hand. Id. On July 13, 2018, Dr. Lee further concluded that the left thumb injury was likely chronic. Id.
In May 2020, Appellant was evaluated by Thomas F. Morgan, M.D., Carl C. DiRobbio, M.D., and John Golberg, M.D. These three doctors were engaged by ERSRI as independent examiners in Appellant's case pursuant to G.L. 1956 § 36-10-14(c). Dr. Morgan examined Appellant on May 21, 2020 and determined that the Appellant had "bilateral weakness of both hands secondary to osteoarthritis and degenerative changes to the thumb carpal metacarpal joints with joint replacements." Id. Dr. Morgan concluded that Appellant's disabling condition was caused by his age and genetic predisposition for underlying osteoarthritis to his hands. Id.
Dr. DiRobbio examined the Appellant on May 14, 2020 and determined that Appellant was no longer able to do his job, finding that Appellant had "degenerative arthritis and subluxation of the MCP joints of both thumbs, right carpal tunnel syndrome, right ulnar neuropathy at the elbow, and degenerative arthritis of the CMC joint and 1P joints of both thumbs." Id. Dr. DiRobbio further concluded that Appellant's work over a period of time led to the development of arthritis which caused significant pain when Appellant attempted to use his hands.
Dr. Golberg examined Appellant on May 18, 2020 and found that Appellant was disabled from the duties of his job due to multiple work-related injuries and repetitive strain to his hands in the performance of his work-related duties. Id. at 3.
On July 2, 2020, the Disability Subcommittee recommended denial of Appellant's application for an accidental disability pension, and approval of Appellant's application for an ordinary disability pension. Id. ERSRI accepted the Subcommittee's recommendation to approve Appellant's ordinary disability pension on July 8, 2020. Id. ERSRI accepted the Subcommittee's recommendation to deny Appellant's accidental disability pension on September 16, 2020. Id. On October 27, 2020, Appellant requested a reconsideration hearing on the Subcommittee's decision to recommend denial of an accidental disability pension. Id. This was granted, and a recorded reconsideration hearing was conducted on January 8, 2021. Id.
At the reconsideration hearing, the Subcommittee recommended denial of Appellant's application for an accident disability pension. Id. at 6. At the hearing, Appellant referenced a specific July 2018 injury to his left hand. Id. at 5. In response, the subcommittee found insufficient evidence in the record to corroborate his testimony. Id. at 6. The Subcommittee weighed Appellant's testimony about the alleged July 2018 incident as well as opinions of the various medical experts and determined that Appellant's condition is "more likely the result of age and length of service, than the natural and proximate result of an accident." Id.
II Standard of Review
Pursuant to § 42-35-15, "[a]ny person . . . who has exhausted all administrative remedies available to him or her within [an] agency, and who is aggrieved by a final order in a contested case is entitled to judicial review" by the Superior Court. Section 42-35-15(a). The Court:
"may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Section 42-35-15(g).
The scope of review for the Superior Court is best viewed as an extension of the administrative process. Rhode Island Public Telecommunications Authority v. Rhode Island State Labor Relations Board, 650 A.2d 479, 484 (R.I. 1994). Additionally, judicial review is restricted to questions that '"the agency itself might properly entertain."' Id. (quoting Environmental Scientific Corp. v. Durfee, 621 A.2d 200, 208 (R.I. 1993)). It is well established that if competent evidence exists in the record, the Superior Court is required to uphold the agency's conclusions. Auto Body Association of Rhode Island v. State, Department of Business Regulation, 996 A.2d 91, 95 (R.I. 2010). The standard that is applicable requires legally competent evidence, which is defined as some or any evidence supporting the agency's findings. Id. As such, a court should defer to an administrative agency's factual determinations so long as they are supported by legally competent evidence. Arnold v. Rhode Island Department of Labor and Training Board of Review, 822 A.2d 164, 167 (R.I. 2003). Legally competent evidence is further defined as "relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means an amount more than a scintilla but less than a preponderance." Rhode Island Temps, Inc. v. Department of Labor & Training, Board of Review, 749 A.2d 1121, 1125 (R.I. 2000)
Significant deference is given to an agency's interpretation of the governing statutory and regulatory frameworks. State v. Cluley, 808 A.2d 1098, 1103 (R.I. 2002). The measure of deference is not absolute and should be weighed according to the persuasive power of a particular interpretation. Citizens Savings Bank v. Bell, 605 F.Supp. 1033, 1042 (D.R.I. 1985). However, the court should defer to an agency's interpretation of a statute whose administration and enforcement have been entrusted to the agency, even if the agency's interpretation is not the only permissible interpretation. Auto Body Association of Rhode Island, 996 A.2d at 97. A court should defer to the agency's finding when that decision is not determined to be clearly erroneous or unauthorized. Id.
The Court must accord greater deference to a finding of fact made by a hearing officer or subcommittee who first made fact and credibility determinations after hearing live testimony. See Environmental Scientific Corp., 621 A.2d at 207. In the past, this has been analogized to a funnel-based system, justifying a need for greater deference to be given to the finder of fact the further away one is from the mouth of the proverbial funnel. Id. at 207-08.
The relevant criteria regarding an application for an accidental disability pension are set forth in § 36-10-14, which provides:
"(a) Medical examination of an active member for accidental disability and investigation of all statements and certificates by him or her or in his or her behalf in connection therewith shall be made upon the application of the head of the department in which the member is employed or upon application of the member, or of a person acting in his or her behalf, stating that the member is physically or mentally incapacitated for the performance of service as a natural and proximate result of an accident while in the performance of duty, and certify the definite time, place, and conditions of the duty performed by the member resulting in the alleged disability, and that the alleged disability is not the result of willful negligence or misconduct on the part of the member, and is not the result of age or length of service, and that the member should, therefore, be retired.
"(b) The application shall be made within five (5) years of the alleged accident from which the injury has resulted in the members present disability and shall be accompanied by an accident report and a physicians report certifying to the disability; provided that if the member was able to return to his or her employment and subsequently reinjures or aggravates the same injury, the application shall be made within the later of five (5) years of the alleged accident or three (3) years of the reinjury or aggravation. The application may also state the member is permanently and totally disabled from any employment.
"(c) If a medical examination conducted by three (3) physicians engaged by the retirement board and such investigation as the retirement board may desire to make shall show that the member is physically or mentally incapacitated for the performance of service as a natural and proximate result of an accident, while in the performance of duty, and that the disability is not the result of willful negligence or misconduct on the part of the member, and is not the result of age or length of service, and that the member has not attained the age of sixty-five (65), and that the member should be retired, the physicians who conducted the examination shall so certify to the retirement board stating the time, place, and conditions of service performed by the member resulting in the disability and the retirement board may grant the member an accidental disability benefit.
"(d) The retirement board shall establish uniform eligibility requirements, standards, and criteria for accidental disability which shall apply to all members who make application for accidental disability benefits." Section 36-10-14.
III Analysis
The issue in the present matter is whether ERSRI's decision to deny the Appellant an accidental disability pension should be affirmed or reversed.
The Court finds that the Board's decision is in accordance with the applicable law and is not clearly erroneous. The Board is vested with the power to consider retirement decisions pursuant to § 36-8-3.
In order to be given an accidental disability pension, an applicant must have an incident related injury. An applicant's condition must be the natural and proximate result of an accident while in the performance of duty. Rossi v. Employees' Retirement System, 895 A.2d 106, 111 (R.I. 2006). Further, an applicant must identify the definite time, place, and conditions that caused the disability accident, and the condition must be a natural and proximate result of the accident. Id.
There is legally competent evidence to support ERSRI's conclusion that the accidental disability pension should be denied. ERSRI primarily relies upon the representations and statements made by the independent examiners. (Recons. Decision at 5.) ERSRI gives significant credence to the fact that none of the three examiners identified a qualifying accident as the natural and proximate cause of the disabling condition. Id. In fact, Doctors DiRobbio and Golberg both attributed the condition to work-related stress and repetition. As a result, they found that the Appellant's representation of an alleged July 2018 to be inconsistent with the record, and that it was not supported by sufficient evidence. Additionally, the Appellant did not certify the definite time, place, and conditions of the duty performed by the member resulting in the alleged disability as is required under our case law. Rossi, 895 A.2d at 110. Based upon the legally competent evidence standard laid out in Rhode Island Temps, supra, the court finds that this determination rises above the scintilla required.
ERSRI did not give credit to Appellant's testimony. ERSRI favored the testimony of the three independent examiners on the basis that there was insufficient medical evidence to support Appellant's testimony. (Recons. Decision at 6.) ERSRI additionally noted that there was evidence in the record to indicate that Appellant was already considering surgery on his left hand prior to July 2018. Id. As such, the Board concluded that any injury could not be sufficiently traced to a potential July 2018 incident, all while voicing doubts about the existence of a specific July 2018 injury ever occurring.
Even if this Court were inclined to agree with the Appellant that he is entitled to an accidental disability pension, it would not be appropriate to grant one unless the decision of the lower court were clearly erroneous. While there is limited evidence of a July 2018 injury which may support the granting of an accidental disability pension, that evidence directly contradicts the testimony and representations from the three independent examiners. The most compelling piece of evidence to support Appellant's claim regarding the July 2018 injury is the accident form which was filled out that day. However, under the administrator section of that form it is listed as an injury due to a repetitive motion. At the very least, this creates serious questions about the validity of the specific injury the Appellant claims, and substantially undermines the persuasiveness of that document when compared to the opinions of the various medical experts.
As stated in Auto Body Association, supra, a court should defer to an agency's interpretation of a statute whose enforcement have been entrusted to the agency, even if the agency's interpretation is not the only permissible interpretation. Auto Body Association of Rhode Island, 996 A.2d at 97. While this case is not strictly an issue of statutory interpretation, it does speak to Appellant's claim that the decision made by ERSRI was contrary to the facts and law. The case law on this issue indicates that deference should be given to the Agency in cases like this where that decision does not rise to the level of being considered clearly unwarranted or unauthorized.
There is a significant level of deference that is required in the present case. While the level of deference can be limited, greater deference is owed to the initial trier of fact who heard live testimony on a given issue. See Environmental Scientific Corp., 621 A.2d at 207. The Subcommittee heard the issue of the accidental disability pension on two occasions, with the Board affirming their decision both times. In this matter, there is competent evidence in the record to support the decision made by ERSRI.
IV Conclusion
For the foregoing reasons, this Court affirms the decision of ERSRI. Counsel shall submit the appropriate Order for entry.