CHRISTIANNE M. HAGGERTY, Appellant,
BOARD OF PENSION TRUSTEES OF THE STATE OF DELAWARE, DELAWARE OFFICE OF PENSIONS Appellees.
Submitted: April 27, 2015
Upon Appellant's Appeal from the Board of Pension Trustees, REVERSED.
Christianne M. Haggerty, pro se, Appellant.
Stacey Cohee, Esq., Deputy Attorney General, 655 S. Bay Road, Suite 1A, Dover, Delaware 19901, Attorney for Appellee Delaware Office of Pensions.
M. JANE BRADY SUPERIOR COURT JUDGE
This is appellant Christianne M. Haggerty's ("Haggerty") pro se appeal from a decision of the Delaware Board of Pension Trustees (the "Board"). Haggerty was awarded a partial disability pension but maintains that she is entitled to a total disability pension. Haggerty argues that the Board erred in its consideration of the medical evidence before it.
The Court reviews the decision of the Board to determine whether it supported by substantial evidence and free from legal error. For the reasons detailed below, the Court finds that the Board misapplied the law in deciding Haggerty's claim and accordingly REVERSES and REMANDS the decision of the Board.
II. Factual & Procedural Background
A. Haggerty's Injury
Haggerty was employed as a police officer with the New Castle County Police Department ("NCCPD") when she suffered an injury in the line of duty on March 9, 2009.Haggerty reported the incident the next day, sought treatment, and was immediately placed on "light duty." After the injury, Haggerty was diagnosed with a left shoulder strain/sprain, cervical whiplash, and potential bursitis. On January 6, 2010, after treatment for her injuries, therapy, and a job placement assessment, Haggerty was placed back on full duty. Three weeks later, Haggerty was put back on light duty due to aggravated neck pain and headaches. Dr. Ann Kim and Dr. Pierre LeRoy concluded that the pain was caused by the weight of Haggerty's uniform and gun. Haggerty was subsequently evaluated by Dr. Stephen Rogers, who concluded that Haggerty was totally disabled from all law enforcement work.
B. Haggerty's Termination and Application for Disability Pension
On August 20, 2010, NCCPD sent Haggerty a letter notifying Haggerty that she was being terminated. Haggerty was terminated because she was on light duty and the County maintained that there were no other light duty positions available in which Haggerty could continue. Haggerty's termination was effective as of October 7, 2010. Haggerty applied for a disability pension from the Delaware State Office of Pensions ("SPO") on September 2, 2010. On November 23, 2010, the SPO informed Haggerty that she had been granted a partial disability pension. Haggerty appealed the decision, seeking a total disability pension. At the time of the appeal, the SPO requested that Haggerty submit to an expert vocational assessment by Malcolm & Associates, LLC ("Malcolm"), which Haggerty did.  On April 4, 2011, Malcolm submitted its report (the "Malcolm Report") finding that Haggerty was not totally disabled but could do medium physical demand work for 8-10 hours per day.  After considering the Malcolm Report, the SPO issued a decision confirming that Haggerty would receive only a duty-connected partial disability pension. Haggerty appealed the decision of the SPO, and, on September 14, 2011, a hearing was held before the hearing officers for the Board in accordance with 29 Del. C. §8308(c)(8). On November 18, 2011, the Board voted to adopt the recommendation of the hearing officers and denied Haggerty's appeal.
C. Haggerty's Initial Appeal to Superior Court
On December 15, 2011, Haggerty appealed to Superior Court. Haggerty argued that the Board erred in not finding her totally disabled. Specifically, Haggerty suggested that because there is no job with New Castle County for which the County presently finds her suited, she is totally disabled.
On July 20, 2012, Judge Slights reversed and remanded the decision to the Board. The Court found the Board had correctly interpreted and applied 11 Del. C. §8801, the statute defining "partial disability" and "total disability" for the purposes of the county and municipal police/firefighter pension plan. 11 Del. C. §8801(16) defines "total disability" as "a medically determined physical or mental impairment which renders the member totally unable to work in any occupation for which the member is reasonably suited by training or experience, which is reasonably expected to last at least 12 months."
The Court explained that the definition of "total disability, " as previously determined by Superior Court, focuses on the employee's ability to engage in "any occupation, whether police-related or otherwise." An individual is not totally disabled if she can work in some job, even if that job is with an organization other than New Castle County.  In other words, "any occupation" in 11 Del. C. §8801(16) is not, contrary to Haggerty's suggestion, limited to "any occupation with New Castle County." The Court concluded that "the Malcolm Report's conclusion that Haggerty can work in positions aside from those provided by the County" was consistent with the Board's finding that Haggerty is not totally disabled.
Despite the Board's proper interpretation of the statute, the Court found that the Board's decision was not supported by substantial evidence because the Board had completely ignored evidence that contradicted the Board's findings-specifically three medical opinions presented by Haggerty at the hearing, each of which opined that Haggerty was totally disabled, i.e., unable to work in any capacity. The Court explained, "[t]he Board failed to provide any indication that it actually considered the treating physician's opinion and apparently never considered or even reviewed the two separate medical opinions offered by Haggerty."
The Court directed that, upon remand, the Board should hold a new hearing, which effectively afforded the parties the opportunity to present new evidence. However, the Court made clear that evidence of Haggerty's condition having worsened subsequent to her original filing for benefits should not be considered: "There is nothing in the [disability pension] statute… to suggest that the Board is obligated to increase a partial disability pension to a full disability pension where a pensioner's physical state worsens. As unfair as this may seem to Haggerty and any other service-member faced with a degenerative condition caused by a work-related injury, this Court is not the proper forum for relief."
D. Evidence before the Board on Remand
In accordance with the Court's direction, the Board allowed the record to be supplemented by additional submissions and held a remand hearing before the hearing officers on November 13, 2013. In their Report and Recommendation, the hearing officers summarized the evidence before them as of the remand hearing. At the hearing, Haggerty testified that she had been working light duty as a dispatcher prior to her termination. Haggerty's initial treatment was with Dr. Kambhamettu, whom Haggerty consulted at the behest of the County.Dr. Kambhamettu placed Haggerty on light duty. In April 2009, Haggerty had her first MRI of her shoulder, which indicated that she had bursitis. Dr. Kambhamettu referred Haggerty to a surgeon, Dr. Sowa, who gave Haggerty a cortisone shot for pain, ordered an MRI of Haggerty's spine, and referred Haggerty to a colleague ...