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HEADNOTE

Hersl v. Fire & Police Employees' Retirement System, No. 0814, September Term, 2008

Administrative Law - Substantial Evidence Rule. Baltimore City firefighter sought line-of-duty (LOD) retirement. Treating and examining physicians, who opined on

permanency, agreed that disability was permanent and was caused by LOD injuries. Hearing Examiner for Retirement System ruled that claimant failed to prove that permanency was due to LOD injuries. Examiner further ruled that permanent disability was due to

subsequent, non-LOD, heart attacks. On review, circuit court affirmed. Held: Reversed. Agency ruling not supported by substantial evidence. Role of Hearing Examiner and effect of prior LOD injuries discussed.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0814 September Term, 2008

STEPHEN P. HERSL

v.

FIRE & POLICE EMPLOYEES' RETIREMENT SYSTEM

Davis, Meredith, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.

Opinion by Rodowsky, J.

Filed: October 5, 2009

Stephen Hersl (Hersl or the Claimant), appellant, was injured in the line of duty as a Baltimore City firefighter on February 5, 2006, and never returned to work. Following notification that he would be retired, effective February 6, 2007, he applied for line-of-duty (LOD) disability retirement. A hearing examiner denied the application, concluding that the LOD injuries were not permanent and that the cause of his permanent total disability was a non-LOD heart condition. Hersl was unsuccessful on judicial review by the Circuit Court for Baltimore City. His appeal to this Court presents the following questions: "I. Is there substantial evidence supporting the hearing examiner's determination that Mr. Hersl's disability is caused by heart disease rather than line-of-duty injuries? Is there substantial evidence supporting the hearing examiner's determination that Mr. Hersl's shoulder injuries are not permanent? Is there substantial evidence supporting the hearing examiner's determination that Mr. Hersl's leg injuries are not permanent line-ofduty injuries? Did the circuit court err as a matter of law when it determined that Mr. Hersl is not entitled to retirement benefits if he is disabled as a result of a combination of injuries?" I. The Accident and Injury Hersl joined the Baltimore City Fire Department as a firefighter on January 26, 1987, when he was twenty-four years old. He was in perfect health, as confirmed by a physical examination. On or about May 13, 1998, Hersl injured his left knee in an automobile accident while off-duty. On October 18, 2000, he was injured in another off-duty auto accident, during which his left knee struck the dashboard. That knee continued to bother him, and, in

"II.

"III.

"IV.

December 2000, he underwent surgery to repair a torn medial meniscus and a torn anterior cruciate ligament. In February 2006, Hersl's assignment was to Truck Company 30 located on Belair Road at Mary Avenue. At this time, he was an active firefighter, fully and completely able to perform his duties. On the evening of February 5, 2006, Hersl's unit responded to a call for medical assistance. He and another firefighter were required to remove an incapacitated male, weighing approximately 275-300 pounds, from a basement apartment. The man was placed on a stretcher, and the two firemen began to ascend a seven or eight step staircase. Near the top of the staircase, Hersl, at the front of the stretcher, and moving backwards, slipped and slid down the stairs with the man and stretcher landing on top of him. Hersl sustained multiple injuries, including jamming his shoulders when attempting to break his fall. He was taken to Mercy Hospital for evaluation and treatment in the early hours of February 6, 2006. The claimant was experiencing severe pain in his ankle area, left knee, shoulders, and nose. An MRI, performed on February 10, revealed a ruptured right Achilles tendon. This injury was repaired through surgery by Dr. Clifford L. Jeng on February 16, 2006, at Mercy Hospital. There was no resulting disability to the ankle area, and this injury is not involved in the present claim. Under an apparent arrangement between the Baltimore City Fire Department and Mercy Hospital, Mercy physicians examine firefighters who are on sick call. Mercy

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periodically reports in longhand to the Baltimore City Fire Department on the status of these firefighters, utilizing a form headed, "PSI VISITATION/DISPOSITION" (a PSI Report). Underlying the PSI Reports are typewritten chart notes. When Hersl was seen under this program, on February 10, Dr. Paula Lyons noted that, in addition to the tendon rupture, the Claimant "also has some shoulder complaints with good range of motion." On March 15, Dr. Lyons noted that Hersl was to remain off-duty, following the tendon rupture repair. As of April 6, the Claimant was recuperating from the Achilles tendon surgery and had not received any treatment for his shoulders. The Claimant was examined, on April 11, 2006, by Dr. Martin Kanner, a specialist in rehabilitation. Dr. Kanner submitted his report to "Expert Medical Opinions," and, six days later, it was faxed to "Comp Management Inc." Dr. Kanner summarized Hersl's medical conditions as: "1. "2. "3. "4. "5. Rupture of the right Achilles' tendon

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Maryland Law