Jared Starnino v. Employees' Retirement System of the City of Providence ( 2021 )

February 5, 2021
Supreme Court
No. 2018-233-M.P.
Jared Starnino :
v. :
Employees’ Retirement System of :
the City of Providence.
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2018-233-M.P.
(Dissent begins on Page 15)
Jared Starnino :
v. :
Employees’ Retirement System of :
the City of Providence.
Present: Suttell, C.J., Flaherty, and Robinson, JJ.
OPINION
Justice Robinson, for the Court. On August 14, 2018, Jared Starnino
petitioned this Court for the issuance of a writ of certiorari to review a July 25, 2018
decision of the Retirement Board of the Employees’ Retirement System of the City
of Providence (the Board) denying his application for an accidental disability
retirement. This Court granted his petition on April 29, 2019. He contends before
this Court that, “[e]ven the most deferential review reveals that the Board virtually
ignored and failed to reason over the legally competent evidence before it” when it
denied his application for an accidental disability retirement.
This case came before the Supreme Court pursuant to an order directing the
parties to appear and show cause why the issues raised in this case should not be
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summarily decided. After a close review of the record and careful consideration of
the parties’ arguments (both written and oral), we are satisfied that cause has not
been shown and that this case may be decided at this time.
For the reasons set forth in this opinion, we affirm the decision of the Board.
I
Facts and Travel
The facts forming the basis of this case are not a subject of debate between
the parties. In relating those facts, we rely on the decision of the Board as well as
other documents in the record.
At all times relevant to this case, Mr. Starnino was a firefighter with the City
of Providence. On June 24, 2014, in carrying out his work-related duties, Mr.
Starnino injured his right shoulder while lifting a patient. After he had recovered
from that injury, he eventually returned to full duty. Then, on August 3, 2015, he
sustained a second injury to his right shoulder while transferring a patient from a
stretcher. According to the Board’s decision, on November 12, 2015, Mr. Starnino’s
treating physician, Jonathan Gastel, M.D., performed a “right shoulder arthroscopy
with SLAP repair and anterior capsulorrhaphy as well as repair of partial thickness
rotator cuff tear.” Ultimately, however, on September 28, 2016, a Functional
Capacity Evaluation (FCE) was performed at the request of Dr. Gastel; that
evaluation concluded that Mr. Starnino could not return to working full duty.
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Accordingly, on January 8, 2017, Mr. Starnino submitted an application for an
accidental disability retirement on the basis of his continuing shoulder injury.
Subsequent to filing his application for an accidental disability retirement, Mr.
Starnino underwent three independent medical examinations, as required by the
applicable ordinance.
On May 30, 2017, Mr. Starnino underwent an examination conducted by A.
Louis Mariorenzi, M.D. Doctor Mariorenzi produced a report, dated June 5, 2017,
in which he concluded, to a reasonable degree of medical certainty, that “because of
the restricted motion to the shoulder,” Mr. Starnino would “have difficulty returning
to all duties as a firefighter.” He added that Mr. Starnino was not totally disabled
from any “gainful employment” but was “partially disabled, unable to return to his
employment as a firefighter.” He then stated the following: “[B]ased upon his
present physical findings and the medical records available to me, there is a
probability that with routine everyday use of this arm that motion will continue to
improve and may within the next 2 years return to normal which would then allow
this individual to return to his usual employment as a firefighter.” It was Dr.
Mariorenzi’s recommendation that Mr. Starnino be considered partially disabled and
be reevaluated in two years.
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On the “Accidental Disability Questionnaire” filled out by Dr. Mariorenzi, he
opined that Mr. Starnino’s incapacity was the natural and proximate result of his
injury sustained while performing his duties as a firefighter.
On June 26, 2017, Mr. Starnino underwent an examination by Michael P.
Bradley, M.D. Doctor Bradley opined, in a report dated September 5, 2017, that,
without further surgery, Mr. Starnino “ha[d] really undergone a maximal medical
improvement.” He stated that “under his current course of treatment, I do not think
he could continue working based on the job description provided for him as a rescue
technician for the Providence Fire Department.” Doctor Bradley also noted that he
had reviewed the FCE and that it was “quite detailed in nature * * *.” Additionally,
he stated that Mr. Starnino’s right arm was “certainly less functional than normal.”
He then concluded that, “[u]nless further surgery is considered,” Mr. Starnino
“should be referred for his Accidental Disability Retirement * * *.”
On the “Accidental Disability Questionnaire” filled out by Dr. Bradley, he
stated that, to a “medical degree of certainty,” without further surgery, Mr. Starnino
would not be able to return to his job and that, at that time, his disability was
permanent. He further opined therein that Mr. Starnino’s incapacity was the natural
and proximate result of his injury sustained while performing his duties as a
firefighter.
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On August 15, 2017, Mr. Starnino underwent a medical examination
conducted by Joseph T. Lifrak, M.D. Doctor Lifrak produced a report based on that
examination, and he specifically stated that his report was given to a reasonable
degree of medical certainty. Doctor Lifrak opined that Mr. Starnino had “subjective
complaints, although no objective findings on MRI arthrogram of any pathology as
well as only mild restrictions in range of motion * * *.” He then stated that Mr.
Starnino could “work full duty as a firefighter without being injurious to his
health * * *.” Doctor Lifrak then added the following statement:
“[H]owever, functional capacity evaluation done in
September 2016, states that he does not meet the criteria
and guidelines to meet full duty requirements. Therefore
although I feel he can work full duty, the functional
capacity evaluation is contrary to this and based on the
functional capacity evaluation, [Mr. Starnino] cannot
work full duty without being injurious to his health. * * *
Based on the functional capacity evaluation, [Mr.
Starnino] would have the restrictions as outlined * * * in
the functional capacity evaluation report.”
On the “Accidental Disability Questionnaire” filled out by Dr. Lifrak, he opined that
Mr. Starnino’s disability was permanent and was the natural and proximate result of
his injury sustained while performing his duties as a firefighter.
In a February 13, 2017 letter to Mr. Starnino’s counsel, Mr. Starnino’s treating
physician, Dr. Gastel, opined that Mr. Starnino was “at a point of Maximal Medical
Improvement” without further surgery. He added that Mr. Starnino was
“incapacitated from full performance of his duties as a fire fighter/emergency
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technician.” Doctor Gastel explained that he had relied on the FCE in part in
reaching his conclusion, and he stated that an FCE report was a report that would be
“reasonably relied upon, * * * in [his] opinion.” He also stated that his opinions
were based on his “highest degree of medical certainty.”
Mr. Starnino’s application for an accidental disability retirement came before
the Board for the first time on January 24, 2018. In the course of that hearing, Mr.
Starnino was asked if he had ever had a prior right shoulder injury, to which he
responded: “[M]aybe in college” “thirteen, fourteen years ago.” The matter was
continued so that the Board might attempt to obtain some additional information.
Mr. Starnino’s application was then further considered by the Board on April 25,
2018, at which time the Board voted to deny his application.
On July 25, 2018, the Board issued a written decision. The Board’s decision
included findings of fact, which detailed the evaluations of Mr. Starnino conducted
by all three independent medical examiners. It then set forth the entirety of the
applicable ordinance—§ 17-189(f)1 of the Providence Code of Ordinances—before
deciding that “[t]he legally competent evidence provided does not establish that
1
We continue, as we did in Prew v. Employee Retirement System of City of
Providence, 139 A.3d 556 (R.I. 2016), and Trinidad v. Employees’ Retirement
System of Providence, 206 A.3d 700 (R.I. 2019), to refer to this ordinance section as
§ 17-189(f) rather than § 17-189(6). There is no substantive difference between the
two. For a more detailed discussion of this citation issue, we refer the interested
reader to this Court’s opinions in Prew, 139 A.3d at 560 n.3, and Trinidad, 206 A.3d
at 705 n.5.
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[Mr.] Starnino is ‘incapacitated for the performance of duty and ought to be retired’
pursuant to [the] ordinance.” The decision went on to state that the record showed
that Mr. Starnino was “incapacitated as a Firefighter because of subjective
complaints without objective findings.” It then relied specifically on Dr. Lifrak’s
conclusion that Mr. Starnino could perform full duty work as a firefighter; it further
relied upon Dr. Lifrak’s comments with respect to Mr. Starnino’s complaints being
subjective, without objective findings; and it also referenced Dr. Lifrak’s mention of
the mild restrictions to Mr. Starnino’s range of motion. The Board “discounted the
functional capacity evaluation because it was performed almost two years prior in
2016.” Finally, the Board noted that “Mr. Starnino testified that he originally injured
his right shoulder in college but was unable to provide the Board with any
information as to medical records or treatment for said injury.” For these reasons,
the Board denied Mr. Starnino’s application for an accidental disability retirement.
On August 14, 2018, Mr. Starnino petitioned this Court for the issuance of a
writ of certiorari to review the Board’s decision. This Court granted his petition on
April 29, 2019.
II
Standard of Review
Decisions of the Board are reviewed by this Court pursuant to the issuance of
a writ of certiorari. See Rule 13(a) of Article I of the Supreme Court Rules of
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Appellate Procedure. In reviewing the decision of the Board pursuant to a writ of
certiorari, “our task is to discern whether any legally competent evidence supports
the lower tribunal’s decision and whether the decision-maker committed any
reversible errors of law in the matter under review.” Trinidad v. Employees’
Retirement System of Providence, 206 A.3d 700, 704 (R.I. 2019) (internal quotation
marks omitted). We have stated that it is our duty to “scrutinize the record to
determine whether the board’s decision is supported by any legally competent
evidence * * *.” Prew v. Employee Retirement System of City of Providence, 139
A.3d 556, 559 (R.I. 2016) (internal quotation marks omitted). We have further
consistently held that “in our review for legally competent evidence we look for
some or any evidence supporting the agency’s findings.” Trinidad, 206 A.3d at 704
(internal quotation marks omitted); see Morse v. Employees Retirement System of
City of Providence, 139 A.3d 385, 390-91 (R.I. 2016); Pierce v. Providence
Retirement Board, 15 A.3d 957, 961 (R.I. 2011); Auto Body Association of Rhode
Island v. State Department of Business Regulation, 996 A.2d 91, 95 (R.I. 2010); see
also Foster-Glocester Regional School Committee v. Board of Review, 854 A.2d
1008, 1012 (R.I. 2004) (“Legally competent evidence is defined as such relevant
evidence that a reasonable mind might accept as adequate to support a conclusion,
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and means an amount more than a scintilla but less than a preponderance.”) (internal
quotation marks omitted).
We review questions of law de novo, and we have stated that “[i]f an error of
law is found, it must so infect the validity of the proceedings as to warrant reversal.”
Trinidad, 206 A.3d at 704 (internal quotation marks omitted); see also Morse, 139
A.3d at 391. As such, “if the board did not lack competent facts supporting its
decision and did not commit legal errors infecting the validity of the proceedings,
this Court will affirm its decision.” Trinidad, 206 A.3d at 704 (internal quotation
marks omitted).
III
Analysis
Mr. Starnino represents to this Court that “all physicians unanimously agreed
that petitioner was incapable of performing his full duties as a result of his on-the-
job injury * * *.” (Emphasis in original.) He further posits that the Board
improperly neglected to explain why it discounted the FCE report and that the FCE
was not “almost two years old” but rather was only approximately sixteen months
old at the time of the first hearing before the Board in January of 2018. He further
contends that the Board either should have found as a fact that Mr. Starnino was at
a “medical end point” or should have explained how the Board could conclude that
he was not. He adds that, “[i]f the Board found [Mr.] Starnino to be at [Maximum
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Medical Improvement] as it should have on this record, there would be no reason to
‘discount’ the results of the FCE, because the evidence shows [Mr.] Starnino’s
medical condition was not likely to improve * * *.” Lastly, Mr. Starnino argues that
the Board mentioned his previous injury that he told the Board may have taken place
when he was in college but “noticeably absent is any meaningful discussion of the
significance, if any, of this 13 year old incident * * *.” He avers that the
“Board * * * shoveled aside the legally competent evidence to look for straws it
might grasp to reach [its] desired result * * *.”2
Thus, the question presented to this Court is whether or not legally competent
evidence existed to support the Board’s denial of Mr. Starnino’s application for an
accidental disability retirement.
There are three different avenues to receive retirement benefits from the City
of Providence: a service retirement, an ordinary disability retirement, and an
accidental disability retirement. Morse, 139 A.3d at 391. “The sole difference
between accidental and ordinary benefits is the manner in which an employee
becomes disabled, which accounts for the difference in compensation.” Trinidad,
206 A.3d at 704-05 (internal quotation marks omitted). The retirement system
2
Mr. Starnino focuses much of his argument before this Court on Dr.
Mariorenzi’s opinion that there was a probability that his shoulder injury would
improve in two years. However, the Board did not rely on that statement by Dr.
Mariorenzi in its written decision, nor do we rely on that statement in reaching our
decision to affirm.
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provides greater benefits to those injured on the job in the form of the accidental
disability retirement. Id. at 705. As such, “entitlement to accidental-disability
retirement’s greater benefits requires a member to meet criteria that are more
discriminating than the other * * * retirement options.” Id. (internal quotation marks
omitted). Section 17-189(f) details the requirements for an accidental disability
retirement, including the timeline for filing an application and the requirement that
the applicant submit to three independent medical examinations. We have
summarized the requirements of the ordinance as follows:
“The examinations, along with any additional
investigation undertaken by the city’s director of
personnel, must establish the following: (1) the employee
is physically or mentally incapacitated for the performance
of service any [sic]; * * * (2) that the incapacitation is a
natural and proximate result of an accident or
accidents; * * * (3) such accident or accidents occurred
while [the employee was] in the performance of duty;
(4) the disability was not caused by the employee’s willful
negligence or misconduct; (5) the disability is not the
result of age or length of service; (6) the employee should
be retired; and (7) the definite time, place, and conditions
of the duty that resulted in the employee’s disability.”
Prew, 139 A.3d at 564 (internal quotation marks omitted).
Section 17-189(f) states that, once the Board determines that an applicant is disabled,
then the Board “shall retire the said member * * *.” We have held that that clause
is “mandatory, not discretionary in nature,” meaning that “once the employee has
established that he or she qualifies for accidental-disability retirement, the board is
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not vested with discretion to deny the application.” Trinidad, 206 A.3d at 705
(internal quotation marks omitted).
In this Court’s opinion in Morse, 139 A.3d at 385, in the course of holding
that § 17-189(f) does not require unanimity of the three independent medical
examiners, we made the following statement which is pertinent to the instant case:
“If two independent medical examiners, plus the
member’s treating physicians, opine that the member is
disabled, and one physician disagrees, it is certainly
reasonable to conclude that the evidence is that the
member is disabled. Of course, the board has the authority,
indeed the obligation, to review the opinions of each of
those physicians and determine why there is a
disagreement. The board certainly has the ability to
determine that the one dissenting physician is more
persuasive than the others, but that decision must be based
on a reasoned analysis of the evidence before the board.”
Morse, 139 A.3d at 393 (emphasis added).
Thus, we have been clear that the Board may rely on the evaluation of one
independent medical examiner so long as its decision is based on a reasoned analysis
of the evidence. In the opinion of this Court, after a thorough review of the record
and the arguments of the parties before this Court, that is precisely what the Board
did in the instant case. The Board made findings of fact, including specifically
discussing each of the independent medical examinations undergone by Mr.
Starnino. It then quoted from the applicable ordinance before concluding that legally
competent evidence did not establish that Mr. Starnino was incapacitated from the
performance of his duty and that he should be retired as required by the ordinance.
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The Board proceeded to rely heavily on the evaluation of Dr. Lifrak, in which he
opined that he thought Mr. Starnino could work full duty, even though the FCE
report had reached a contrary conclusion. It is true that Dr. Lifrak noted that the
FCE found to the contrary and that, therefore, Mr. Starnino was incapacitated.
However, the Board was within its discretion to choose to discount the FCE,
especially in view of the length of time that had passed since that evaluation had
been performed, and to give more credence to Dr. Lifrak’s opinion as to whether or
not Mr. Starnino could return to full duty and as to the subjective nature of Mr.
Starnino’s complaints. It is certainly not the case, as Mr. Starnino would have us
believe, that all of the independent medical examiners in this case found that he was
incapacitated; rather, our review of the record discloses that the views of the three
independent medical examiners and Dr. Gastel were substantially more divergent
from one another.
What is more, our standard of review provides that we need look only for
some or any evidence to support the Board’s decision. See Trinidad, 206 A.3d at
704; see also Foster-Glocester Regional School Committee, 854 A.2d at 1012(“Legally competent evidence is defined as such relevant evidence that a reasonable
mind might accept as adequate to support a conclusion, and means an amount more
than a scintilla but less than a preponderance.”) (internal quotation marks omitted).
Certainly, Dr. Lifrak’s statement that he thought Mr. Starnino could return to full
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duty constitutes some evidence in support of the Board’s decision. As such, we need
go no further—we will not disturb the Board’s decision. See Trinidad, 206 A.3d at
704; see also Harodite Industries, Inc. v. Warren Electric Corp., 24 A.3d 514, 533
(R.I. 2011) (“The issue * * * is not what ruling a member of this Court might have
made if he or she were confronted with the motion [at issue] at the trial court level[;]
[t]he only issue properly before us is whether the hearing justice abused her
discretion in ruling as she did * * *.”) (emphasis in original); State v. Gillespie, 960
A.2d 969, 980 (R.I. 2008) (“[W]e may uphold a trial justice’s ruling even if we
would have ruled differently had we been in the trial justice’s position.”).
Lastly, we note that, in our view, this case has substantial similarities to what
was at issue in the recent case of Trinidad v. Employees’ Retirement System of
Providence, 206 A.3d 700 (R.I. 2019). In that case, the Board relied upon the
conclusion of one of the independent medical examiners—Dr. Arnold-Peter C.
Weiss—in determining that the applicant in that case was not entitled to an
accidental disability retirement, despite the fact that the reports of the other two
independent medical examiners seemed to weigh in the opposite direction. Trinidad,
206 A.3d at 702-06. We held that “Dr. Weiss’s evaluation constituted legally
competent evidence supporting the board’s decision denying Trinidad accidental-
disability retirement benefits.” Id. at 706. Thus, in Trinidad, we looked to the
existence of any legally competent evidence to support the Board’s decision and
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affirmed because some such evidence was present in the record; that is precisely the
scenario with which we are currently confronted, and our holding in this case is
entirely consistent with our holding in Trinidad. Id. at 705-06.
Accordingly, in our judgment, the Board relied on legally competent
evidence, namely the evaluation of Mr. Starnino conducted by Dr. Lifrak, in
reaching its conclusion that Mr. Starnino was not entitled to an accidental disability
retirement. As such, we affirm the Board’s decision. See id. at 704.
IV
Conclusion
Accordingly, we affirm the decision of the Board. We remand the record to
that tribunal.
Justice Goldberg, Justice Lynch Prata, and Justice Long did not participate.
Justice Flaherty participated in the decision but retired prior to its publication.
Justice Flaherty, dissenting. I respectfully dissent from the holding of the
majority in this case. I do so because I am convinced that the petitioner, Jared
Starnino, has presented medical evidence that demands a conclusion that, some two
years after he was injured, he remained physically unable to perform his job as a
firefighter and that his disability was the natural and probable result of the injury
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that he sustained during the course of his duties on August 3, 2015. It is my further
opinion that, conversely, there was no competent evidence to the contrary. Thus, I
conclude that the decision of the board should be quashed.
As the majority has explained, petitioner was examined by three orthopedic
surgeons of the board’s choosing in connection with his application for
accidental-disability retirement benefits. Each of the doctors performed an
independent medical examination at the behest of the board, and each was aware that
Mr. Starnino had begun his treatment with physical therapy, but that lack of progress
eventually had caused his treating physician, Jonathan A. Gastel, M.D., to perform
surgery in the form of an arthroscopy with SLAP tear repair, a partial thickness
rotator cuff tear repair, and an anterior capsulorrhaphy on petitioner’s right shoulder.
The first of those independent medical examiners was A. Louis Mariorenzi,
M.D., who examined petitioner on May 30, 2017. Doctor Mariorenzi opined in his
IME report that “[petitioner] is partially disabled, unable to return to his employment
as a firefighter.” It was Dr. Mariorenzi’s recommendation that Mr. Starnino be
considered to be partially disabled.
The next independent medical examiner was Michael P. Bradley, M.D., who
examined petitioner on June 26, 2017. Doctor Bradley opined that “without further
surgery” petitioner had “reached maximum medical improvement” and that, “under
his current course of treatment,” the examiner did “not think he could continue”
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working as a firefighter “[u]nless further surgery is considered[.]” Doctor Bradley
further indicated on the questionnaire attached to his report that petitioner was
physically incapacitated from the performance of his employment duties, and he
stated to a “medical degree of certainty that without further surgery he would not be
able to return to his job and current duty requirements as a rescue technician.”1
Joseph T. Lifrak, M.D., a third orthopedic surgeon, examined petitioner on
behalf of the board on August 15, 2017. Although Dr. Lifrak felt personally that
petitioner “can work full duty, the functional capacity evaluation is contrary to this
and based on the functional capacity evaluation, the patient cannot work full duty
without being injurious to his health.” Doctor Lifrak stated his opinions to a
reasonable degree of medical certainty. However, in the face of three opinions by
the three doctors chosen by the board, asserting that petitioner was disabled and
could no longer perform his job as a firefighter, the board nonetheless denied his
accidental-disability retirement pension.
The majority has concisely, and correctly, set forth the appropriate standard
of review, and it cannot be argued that that standard is daunting. The majority has
also correctly and accurately cited this Court’s decision in Morse v. Employees
Retirement System of City of Providence, 139 A.3d 385 (R.I. 2016). In Morse, we
1
When he testified before the board in support of his application, petitioner said that
he declined further surgery because his treating physician had informed him that
additional surgery could make his condition worse.
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rejected the pension board’s unofficial “unanimity rule” and held that there was no
requirement that the physicians conducting independent medical examinations be
unanimous in their opinions and findings of disability. See Morse, 139 A.3d at 393-
94. It is also true that, in rejecting the board’s unanimity rule, we opined that the
board might be free to conclude that a single dissenting doctor’s opinion was more
persuasive than the conclusions reached by the other medical examiners. Id. at 393.
We cautioned, however, that such a conclusion “must be based on a reasoned
analysis of the evidence before the board.” Id.
It is here that I find fault with the decision of the board and depart from the
reasoning of the majority. First, it troubles me greatly that the hearing transcript
reveals that the board seemed determined to find a way to deny petitioner’s
accidental-disability retirement pension instead of impartially weighing the evidence
before it.2 “When an administrative agency carries out a quasi-judicial function, it
2
For instance, the board members remarked during the hearing:
“CHAIRMAN * * *: And Doctor, whatever documents
you need, if you could try to find the needle in the haystack
with this.
“* * *
“[BOARD MEMBER]: I—I personally believe and—and
it kills me to say this because he’s one of our—our
members, but I—I think he’s gaming the system and I
think that we have evidence here to—to deny.”
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has an obligation of impartiality on par with that of judges.” Champlin’s Realty
Associates v. Tikoian, 989 A.2d 427, 443 (R.I. 2010). Under the Fourteenth
Amendment to the United States Constitution, “administrative tribunals must not be
‘biased or otherwise indisposed from rendering a fair and impartial decision.’” Id.(quoting Davis v. Wood, 444 A.2d 190, 192 (R.I. 1982)). Several comments made
by board members on the record can lead to no other conclusion but that the board
was hostile to petitioner’s claim for accidental-disability retirement benefits and that
the board members were looking for evidence that would support their intuition that
he was “gaming” the system.3
3
Further comments made by board members during the hearing included:
“CHAIRMAN * * *: So, let me just say what my thoughts
are and then we can do whatever you want to do. Right off
the bat and he’s evasive? I—I—I would tend to lean
towards Doctor Mariorenzi. Doctor Lifrak, in the sense
that something’s not right here, if I can say it that way.
***
“[BOARD MEMBER]: I’m—I was just curious—
because, you know, he was a cop for a year, that’s—that’s
pretty physical. * * * You know, you could chase
somebody and tackle them. We have no records of that.
You know, maybe at that particular time, if he did
anything like that, he may not have felt anything, but it
could have been brought on later. * * *
“CHAIRMAN * * *: Right and I’m wondering if there’s
an MRI from before he got injured somewhere out there. I
mean—I know, like I said, that needle in a haystack[.]”
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Other than petitioner’s statement that he was unable to recall the name of the
walk-in emergency room he had visited thirteen or fourteen years earlier to treat an
injury he had received playing basketball while he was in college, there was utterly
no evidence that petitioner had kept any information from the board. In addition, he
stated unequivocally that his treatment for that injury consisted of an examination
and advice that he take aspirin or ibuprofen until his pain subsided. Moreover, it
cannot be gainsaid that petitioner was subjected to a thorough physical examination
before he was appointed to the Cranston Police Department and then to the
Providence Fire Department. He also successfully completed a physically rigorous
police academy and then an equally demanding fire academy without difficulty, and
it is undisputed that he worked for several years as an emergency medical technician
(EMT) without incident or evidence of injury.
In its decision, the board dwelled on the fact that the examining physicians
did not say exactly the same thing. That is true and is to be expected. However,
there was no dispute among them that petitioner’s injury arose during the course of
his employment and that he was, at the time of each examination, unable to perform
the duties of a firefighter.
In rationalizing the denial of petitioner’s application, the board and the
majority focus with particularity on the reports of Dr. Lifrak and Dr. Mariorenzi.
Doctor Lifrak’s report is admittedly a bit confusing. Although he had no difficultly
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in connecting petitioner’s injury to a work incident, he found subjective complaints
only and opined that petitioner could return to work as a firefighter. However, when
noting the very specific results of the functional capacity evaluation (FCE),
especially as those findings related to the precise duties of a firefighter, he reversed
course and said that, to a reasonable degree of medical certainty, “the functional
capacity evaluation is contrary to this and based on the functional capacity
evaluation, the patient cannot work full duty without being injurious to his health. *
* * Based on the functional capacity evaluation, the patient would have the
restrictions as outlined above in the functional capacity evaluation report.”
My reading of Dr. Lifrak’s report leads me to the inevitable conclusion that
the examining physician determined that the FCE report’s focused testing relating
to the everyday duties of an EMT caused him to adjust his personal opinions, given
the exquisite detail in the FCE, and resulted in his adopting the restrictions set forth
in that report. Thus, his conclusion was that petitioner was not able to perform the
work of an EMT.
In my opinion, the equivocation in Dr. Lifrak’s report should have spurred the
board, at the very least, to seek a clarification from Dr. Lifrak. Instead, the board
seems to have treated the correspondence from the physician as two reports: one
personal in nature that found no disability and one based upon the FCE concluding
that there was disability. The board then disregarded that part of Dr. Lifrak’s report
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that it found to be advantageous to the application. Indeed, the transcript of the
board’s executive session on January 24, 2018, reveals an intention to seek
clarification, but the board ultimately did not do so.
Finally, I am troubled by the report of the third examining physician, Dr.
Mariorenzi. Doctor Mariorenzi found petitioner to be cooperative and he also made
a finding that there was “some restricted motion to his right shoulder.” Doctor
Mariorenzi opined that, due to the restricted motion in his shoulder, petitioner was
unable to return to his duties as a firefighter. However, the doctor then said that,
based upon the medical records and his condition, petitioner probably would be able
to return to his duties within the next two years.
Placing aside the undeniably speculative nature of such a statement, it is my
opinion that the board’s consideration of Dr. Mariorenzi’s discussion as to
petitioner’s future condition was inappropriate and in error.
The retirement ordinance, Section 17-189(f) of the Providence Code of
Ordinances, states clearly that, once the board determines that an applicant is
disabled, the board “shall retire the said member[.]” Thus, the ordinance does not
provide the elasticity to consider what the condition of an applicant might be at some
future point. The board must make its decision solely on the evidence when it
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considers the application. We have said that such action by the board is mandatory.4
See Trinidad v. Employees’ Retirement System of Providence, 206 A.3d 700, 705
(R.I. 2019) (concluding that once an “employee has established that he or she
qualifies for accidental-disability retirement, the board is not vested with discretion
to deny the application”) (quoting Prew v. Employee Retirement System of City of
Providence, 139 A.3d 556, 563-64 (R.I. 2016)).
Finally, it is my opinion that the board undercut petitioner’s disability
retirement claim by referring to an injury that petitioner received while he was in
college more than a decade before he sustained the undeniably work-related injury
to his shoulder. The ordinance provides no room for such an exclusion. The
ordinance says that an injury may be discounted only if it is “the result of willful
negligence or misconduct on the part of said member[.]” No such evidence was
presented to the board. To the contrary, all the physicians who examined petitioner
agreed that he had suffered a disabling injury that occurred during the course of his
duties.
In my dissent in Trinidad, cited supra, I expressed my appreciation for the
efforts of the retirement board to rein in some of the more generous, if not abusive,
pension decisions of the past. At the same time, however, it was my opinion in that
4
In its decision, the board said that it discounted the FCE because it was nearly two
years old. However, the FCE was performed on September 28, 2016, and Dr.
Lifrak’s exam was performed less than a year later, on August 5, 2017.
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case, as it is here, that each applicant has the right to have his or her particular
application weighed on its individual merits, consistent with the strict requirements
of the ordinance. Trinidad, 206 A.3d at 708. Thus, the board should not be looking
for a “needle in the haystack” as it considers whether an application has merit. 5
Therefore, I respectfully dissent from the holding of the majority in this case
and would remand this case to the board to seek clarification from Dr. Lifrak with
respect to the ambiguities in his report as to whether or not it is his opinion, after
considering the FCE, that the petitioner was disabled as a result of a work-related
injury at the time of his examination.
5
In Prew v. Employee Retirement System of City of Providence, 139 A.3d 556 (R.I.
2016), we held firmly that ordinances like the one at issue here, are remedial in
nature and that any ambiguities should be construed liberally and in favor of the
employee so that the purpose of the ordinance might be carried out. See Prew, 139
A.3d at 563. Such ordinances are designed to provide a more generous pension
benefit to those employees who are injured in the course of their employment and
are unable to return to their jobs because of disability. See id.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Jared Starnino v. Employees’ Retirement System of
Title of Case
the City of Providence.
Case Number No. 2018-233-M.P.
Date Opinion Filed February 5, 2021
Justices Suttell, C.J., Flaherty, and Robinson, JJ.
Written By Associate Justice William P. Robinson III
Retirement Board of the Employee Retirement System
Source of Appeal
of the City of Providence
Judicial Officer from Lower Court N/A
For Petitioner:
Angelo R. Simone, Esq.
For Respondent:
Attorney(s) on Appeal
Megan K. DiSanto, Esq.
Kenneth B. Chiavarini, Esq.
Monsurat O. Ottun, Esq.
SU-CMS-02A (revised June 2020)