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Preexisting Condition Does Not Disqualify Baltimore City Employees Seeking Line-of-Duty Disability

A Baltimore City employee is not precluded from qualifying for line-of-duty disability if he or she has a preexisting medical or physical condition that contributes to his or her disability, according to a recent decision by Maryland's top court.

Sylvester Dorsey, a school police officer in Baltimore City, was injured in a violent altercation with a student's parent in August 2007. Dorsey's back was injured as a result. Although he returned to light work duty a few weeks later, he was unable, however, to return to full work duty. The City of Baltimore terminated his employment on January 17, 2009. Dorsey then filed an application for line-of-duty disability retirement with the Employment Retirement System of the City of Baltimore (ERS).

Baltimore City Code, Article 22, lays out the eligibility requirements for certain employees of the city of Baltimore to receive line-of-duty disability retirement benefits. That section requires a claimant seeking benefits to prove that he or she sustained at least a "50% anatomical loss of the use of any 1 or at least a 25% or more anatomical loss of each of 2 or more" enumerated body parts. The loss of use must be "the direct result of bodily injury through an accident independent of all other causes and independent of any preexisting physical or medical conditions, job-related or otherwise, occurring while in the actual performance of duty with the City at a definite time and place, without willful negligence on the part of the member."

The hearing examiner found that Dorsey had a 25 percent impairment to his right arm and a 25 percent impairment to his back as a result of the work injury. The examiner also determined that an additional 15 percent impairment to Dorsey's back stemmed from a degenerative disc disease that was asymptomatic prior to the injury but became symptomatic following the injury. The hearing examiner found that Dorsey suffered 40 percent disability to the back, with 15 percent of his impairment caused by the preexisting condition and 25 percent due to the assault. The examiner denied the application for line-of-duty disability retirement, concluding that Dorsey did not satisfy the statutory requirements because "the impairment to [Dorsey's] back is not independent of all other causes."

The hearing examiner reasoned that Dorsey's degenerative disc disease contributed to the disability of his back. Dorsey's treatment records indicated that, prior to the hearing, five MRIs were taken of his back, he had received several steroid shots and had had a nerve conduction study and decompression surgery. Several evaluating and treating physicians noted asymptomatic degenerative disc disease pre-dating the 2007 school incident.

Dorsey asked the court to review the hearing examiner's decision. The Circuit Court for Baltimore City reversed in Dorsey's favor. The Court of Special Appeals affirmed the trial court's decision. Maryland's top court granted ERS's request to determine whether Dorsey's preexisting condition precluded him from qualifying for line-of-duty disability retirement on the grounds that his impairment was not independent of any preexisting physical or medical conditions. The Court of Appeals affirmed the Court of Special Appeals.

The retirement system is remedial legislation which means that it must be construed liberally in favor of injured employees in order to effectuate the legislature's remedial purpose, the state's top court observed.

ERS argued that the hearing officer correctly decided that in order to qualify for line-of-duty disability retirement, Dorsey had to establish that the impairment sustained must have been caused exclusively by the 2007 incident. According to ERS, any causation by a preexisting condition would disqualify an applicant for line-of-duty disability retirement, although he or she might still qualify for ordinary retirement. Dorsey disagreed, arguing that the ordinance required the claimant to prove at least a 50 percent loss of a single scheduled impairment or a 25 percent loss of each of two scheduled impairments, directly attributable to the line-of-duty injury and it did not matter that a level of disability above the 50 percent threshold minimum stemmed from a preexisting disability.

Dorsey is correct, the state's top court declared, explaining that it must assign the words at issue their ordinary meaning and in a way that does not lead to a nonsensical construction. The court gave an example of two employees injured in the same accident, both suffering a shoulder injury. Both found by a hearing examine to have suffered a 50 percent disability. Under the reading that ERS would have us give to the statute, the court said, only an employee without a preexisting condition would be entitled to line-of-duty disability retirement, notwithstanding that both employees suffered the same degree of disability directly attributable to the same line-of-duty accident. To read the language as the ERS does would lead to a nonsensical result, one which we cannot assume the Baltimore City Council intended. The court also pointed out that the remedial nature of the line-of-duty disability retirement scheme would necessitate resolving ambiguity in Dorsey's favor.

The court said further support for its construction of Baltimore City's line-of-duty disability retirement scheme could be found by taking a look at workers' compensation cases. In that area of the law, a preexisting condition that is worsened by an accidental injury does not automatically disqualify an employee from receiving workers' compensation benefits, provided there is some causal relationship between the compensable accident and the injury sustained. Although an employer may be entitled to apportionment based on the percentage of the disability attributable to the preexisting condition, the employer nonetheless remains liable for the portion of the disability reasonably attributable solely to the work-related accidental personal injury or occupational disease. "The same result obtains here," the court said.

The case is Employees' Retirement System of the City of Baltimore v. Sylvester Dorsey.

Baltimore, Maryland-based Belsky, Weinberg & Horowitz has represented clients in disability and workers' compensation matters for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.

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