CHRISTIANNE M. HAGGERTY, Appellant,
BOARD OF PENSION TRUSTEES OF THE STATE OF DELAWARE, and the DELAWARE OFFICE OF PENSIONS, Appellees.
Submitted: January 6, 2017
Appeal from the Board of Pension Trustees: AFFIRMED.
Christianne M. Haggerty, pro se, Appellant.
Marie Johnson, Esquire, Delaware Department of Justice,
Attorney for Board of Pension Trustees of the State of
W. WHARTON, J.
the Court is Christianne Haggerty's
("Haggerty") appeal of the Delaware Board of
Pension Trustees' ("Board") decision that
denied her a "total disability" pension for
injuries that she sustained in the line of duty as a police
officer. Haggerty has successfully appealed the Board's
decision to this Court on two previous occasions. The
paramount issue in the previous appeals is the same issue
that is currently before the Court, and that is whether the
Board properly considered worker's compensation reports
in making its determination. Haggerty argues that the Board
has failed yet again to give them appropriate weight. If the
Board were to give the reports due weight, Haggerty contends
that she would be entitled to a "total disability"
pension, instead of a "partial disability" pension.
thoroughly reviewing the record, the Court finds that the
Board's decision is supported by substantial evidence and
is free from legal error. Accordingly, the Board's
decision is AFFIRMED.
FACTUAL AND PROCEDURAL CONTEXT
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
Haggerty's Termination and Application for Disability
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.
Haggerty's Initial Appeal to Superior Court
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.
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."
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
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."
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
Evidence before the Board on Remand
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 who specialized in spines. The spine
specialist did not think that Haggerty's injuries
required surgery, and he referred Haggerty to Dr. Kim, a pain
specialist. Haggerty began treatment with Dr. Kim in June
March 2011, Haggerty switched doctors and began treating with
Dr. Falco, also a pain specialist. In April 2011, Dr. Falco
suggested Haggerty see Dr. Xing, who had treated Haggerty for
a back injury that she "had years ago, " for a
second surgical consultation. Dr. Xing referred Haggerty to
Dr. Katz, who ordered another MRI. According to Haggerty, the
MRI showed degenerative disc disease, but Dr. Katz still did
not think that surgery was necessary at that time. Haggerty
testified that Dr. Katz referred her back to Dr. Sowa, who,
in turn referred her to Dr. Eppley, a neurosurgeon. Haggerty
testified that it was now January 2013, and Dr. Eppley
underwent spinal fusion surgery in July 2013. Haggerty
testified that the surgery revealed "fragments of bone
embedded into the disc" and that Dr. Eppley "said
that that was consistent with having some type of trauma to
the area." Haggerty indicated that her worker's
compensation case was reopened as a result of the surgery,
and that she is now on total disability until cleared to work
by her doctors.
cross-examination, Haggerty was asked why she had withdrawn
her original June 2011 petition for worker's compensation
for total disability. Counsel for the SPO asked Haggerty to
read into the record a letter from her attorney at the time
indicating that Dr. Falco was unable to testify that Haggerty
was totally disabled at that time. Upon further questioning,
Haggerty confirmed that prior to September 14, 2011, the date
of the first Board hearing concerning Haggerty's appeal
of the SPO's granting her only partial disability
benefits, the only doctors who had opined that Haggerty was
totally disabled were Dr. Kim, Dr. Falco, Dr. Coubarous, and
Dr. DeJoseph. When asked whether any of the physicians had
opined that Haggerty's disability would last more than 12
months, Haggerty indicated that Dr. Falco had written the
word "never" in response to the question as to
whether she could return to work.
record contained several vocational assessments. First, there
was the Malcolm report on which the SPO relied in making its
original determination that Haggerty was only eligible for
partial disability. The report concluded that at that time,
given Haggerty's experience and education, a labor market
survey indicated several jobs that she could work with her
injury. Two other experts for the County, Dr. Meyers and
Barbara Stevenson of Coventry Worker's Comp Services,
similarly opined that there were jobs that Haggerty could do.
In his August 3, 2011 Expert Medical Examination Report, Dr.
Meyers opined that Haggerty "was safe to return to work
at light duty capacity as per Dr. Kim's recommendation of
January 4, 2011" and was "not totally
disabled." Barbara Stevenson identified ten jobs that
Haggerty could perform.
submitted numerous physician reports that had been prepared
in connection with her worker's compensation claim,
including reports by Dr. Kim, Dr. DeJoseph, Dr. Falco, and
Dr. Coubarous. There are multiple reports, sometimes from the
same doctor, tracking Haggerty's progress over time.
These reports were made on a standard "Delaware
Workers' Compensation: Physician's Report of
Worker's Compensation Injury" form. The form does
not explicitly ask whether the applicant is totally disabled
from any kind of work (and not just prevented from performing
her current job), a fact that the Board made much of in its
decision on remand. Nonetheless, several of these reports
indicated "total disability, " by checking the box
corresponding to "0" hours per day that the patient
can work and writing some variation of "total
disability/no work" in the "comments" section
of the form.
submitted two Pension Plan Medical Reports to the SPO. Both
reports were discussed at the hearing. The Pension Plan
Medical Report form asks directly after the officer's
ability to work in any position for which she is suited.
Question 11 asks, "Does the impairment render the
officer totally unable to work in any occupation for which
he/she is reasonably suited by training or experience. . .
?" Question 12 asks, "If not, what occupation is
the officer able to perform?" The first report by Dr.
Kim was dated October 8, 2010. In response to Question 11,
Dr. Kim answered "no." In response to Question 12,
Dr. Kim stated that Haggerty was capable of "light duty
. . . [and] administrative work, desk work." The second
report by Dr. Rogers, submitted on October 29, 2010, answered
"Yes" in response to Question 11 and "Not
applicable" to Question 12. Haggerty was questioned
about an apparent handwriting discrepancy in Dr. Rogers'
report, but Haggerty was unable to explain the handwriting
discrepancy at the hearing.
The Board's Findings
hearing officers issued a Report and Recommendation, denying
Haggerty's appeal, which was approved and adopted by the
Board on December 20, 2013. The question before the Board was
whether Haggerty had met the standard for "total
disability" under 11 Del. C. § 8801(16). As a
threshold issue, the Board considered whether it needed to
take into account evidence that Haggerty's condition has
worsened since she first applied for a disability pension.
Citing the Court's decision on appeal, the Board
determined that the County Plan was not intended to take into
account worsening of an applicant's medical condition
after she has filed for benefits.
Board found that it was beyond dispute that Haggerty
"had a medically determined physical impairment [that]
rendered her unable to function as a police officer [and]
which was reasonably expected to last at least 12 months, at
the time of her initial application in September 2010, and
through the time of her initial Pension Board hearing on
September 14, 2011." The Board identified numerous
medical opinions in the record, which had been submitted for
the purpose of Haggerty's worker's compensation
claim. These opinions included reports by Dr. Kim, Dr.
DeJoseph, Dr. Falco, and Dr. Coubarous. The Board found that
[w]hile each of the WC [worker's compensation] Medical
Reports are responsive to the question of whether Ms.
Haggerty could perform the duties of a police officer,
thereby meeting the standard required by 8801(13) of the
County Plan for partial disability, they do not address
whether Ms. Haggerty is able to perform any other work for
which she may be qualified, as required for a finding of
total disability pursuant to sec. 8801(16).
Board pointed out that, in contrast to the worker's
compensation form, the form for the Pension Plan Medical
Report asks the physician completing it to directly address
whether the claimant may do any work for which she
is suited by training or experience.
two Pension Plan Reports, the Board stated that it gave the
Rogers report less weight than that of Dr. Kim. The Board
pointed to the fact that Dr. Kim was the regular treating
physician for Haggerty and "has the benefit of several
months of evaluation and treatment on which to form her
opinion." In contrast, said the Board, Dr. Rogers was a
medical expert engaged by the County who has a much more
limited role in Haggerty's care. The Board also noted
that Dr. Rogers had written an earlier medical review, dated
July 6, 2010, in which he acknowledged that Haggerty was
currently working light duty, that "Dr. Kim would be her
physician of first resort, " and that the permanent
impairment to the cervical spine that was causally related to
the work injury was "10%." The Board also says that
both Haggerty and her husband testified that Rogers was not
privy to the proper disability definitions under 11 Del.
C. § 8801(16) and was instead making his
evaluations premised on the worker's compensation
standards. Finally, the Board expressed concern over the fact
that Rogers' Pension Plan Medical Report appeared to
contain two different handwritings.
Board found that the vocational evaluations in the record
provided "overwhelming support for a partial disability
determination" as they indicated multiple jobs for which
Haggerty would be qualified given her physical limitations.
the Board found that there was ample medical evidence in the
record to suggest that Haggerty's disc condition was
degenerative and had deteriorated since the September 14,
2011 hearing. However, the Board found no evidence to
indicate that Haggerty's degenerative condition was
caused by her work injury. The Board said that the only
evidence of a causal connection between the work injury was
the postoperative note and Haggerty's associated
testimony concerning the "fragments of bone embedded
into the disc" that Dr. Eppley said was "consistent
with having some type of trauma to the area." The Board
concluded that Haggerty's injuries could have been caused
by a multitude of other factors including a back issue that
predated the injury and subsequent injuries from sneezing and
in the shower.
Haggerty's Second ...