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Haggerty v. Board of Pension Trustees of State

Superior Court of Delaware

April 17, 2017

CHRISTIANNE M. HAGGERTY, Appellant,
v.
BOARD OF PENSION TRUSTEES OF THE STATE OF DELAWARE, and the DELAWARE OFFICE OF PENSIONS, Appellees.

          Submitted: January 6, 2017

         On Appeal from the Board of Pension Trustees: AFFIRMED.

          Christianne M. Haggerty, pro se, Appellant.

          Ann Marie Johnson, Esquire, Delaware Department of Justice, Attorney for Board of Pension Trustees of the State of Delaware.

          MEMORANDUM OPINION

          FERRIS W. WHARTON, J.

         I. INTRODUCTION

         Before 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.

         After 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.

         II. FACTUAL AND PROCEDURAL CONTEXT[1]

         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 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 2010.

         In 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 recommended surgery.

         Haggerty 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.

         On 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.

         The 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.

         Haggerty 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.

         Haggerty 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.

         E. The Board's Findings

         The 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.

         The 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).

         The 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.

         Of the 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.

         The 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.

         Finally, 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.

         F. Haggerty's Second ...


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