John B. Corcoran, Petitioner, Appellant vs. Metropolitan Nashville Police Department

Transcription

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law John B. Corcoran, Petitioner, Appellant vs. Metropolitan Nashville Police Department Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE CIVIL SERVICE COMMISSION METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY IN THE MATTER OF: John B. Corcoran, Petitioner/Appellant DOCKET NO: J v. Metropolitan Nashville Police Department INITIAL ORDER This contested case was heard in Nashville, Tennessee, on August 27, 2010, before Ann M. Johnson, Administrative Judge, assigned by the Secretary of State to sit for the Civil Service Commission of the Metropolitan Government of Nashville and Davidson County. The Appellant was represented by Worrick G. Robinson and Joanna C. Gordon, both of the Nashville bar. Jonathan P. Michael, Assistant Metropolitan Attorney, represented the Metropolitan Police Department. The subject of this hearing was the Appellant s request for seventy-two days of injuryon-duty leave, thereby overturning the decision of the Metropolitan Government to designate this time as sick leave. After consideration of the evidence and the arguments of the parties, it is determined that the request should be granted. This decision is based upon the following.

3 SUMMARY OF THE EVIDENCE The Appellant testified on his own behalf, and also submitted the deposition testimony of Dr. Karl Rogers, his treating physician. The Department presented the testimony of Lieutenant Dana Lyon. Fourteen exhibits were admitted into evidence: COLLECTIVE EXHIBIT 1 Initial Referral Packet 1 EXHIBIT 2 Civil Service Rule 4.8 EXHIBIT 3 Civil Service Rule 6.9 EXHIBIT 4 IOD Form 101 EXHIBIT 5 Tenn. Code Ann EXHIBIT 6 Electronic Mail from Dana Lyon, June 29, 2009 EXHIBIT 7 Electronic Mail from Cynthia Perry, July 30, 2009 EXHIBIT 8 Progress Note, September 10, 2009 EXHIBIT 9 Progress Note, September 10, COLLECTIVE EXHIBIT 10 Injury on Duty Reports - October 12, 2009; October 26, 2009; December 17, 2009; and January 24, 2010 EXHIBIT 11 EXHIBIT 12 EXHIBIT 13 EXHIBIT 14 Injury on Duty Report Record of Occupational Injury/Illness Calculation of IOD Days Deposition Transcript of Karl Malone Rogers, M.D. 1 This packet consists of the Civil Service Appeal Form; the Stage II Appeal Decision; Memorandum from Chief Ronal Serpas dated August 18, 2009; Civil Service Commission Rules, Section 6; IOD Form; Letter from John B. Corcoran dated August 19, 2009; IOD Medical Determination Presumption; Leave Calculation; TENN. CODE ANN and attachments. 2 Although the dates are the same, the two progress notes contain slightly different language. 2

4 FINDINGS OF FACT 1. The Appellant John B. Corcoran was employed with the Metropolitan Nashville Police Department ( MNPD or Department) for twenty-three years. His job duties included investigation of robberies, burglaries, and homicides. 2. This employment history included an assignment to the Major Crimes Unit within the Department s Crime Scene Unit. As a homicide investigator, the Appellant was required to spend many hours sitting at his desk reviewing files and lab results, drafting diagrams, interviewing witnesses. It also involved travel to and from crime scenes and assignment to stakeouts. The Appellant remained in this position until November of The Department conducted an annual job performance review. The Appellant consistently achieved the Department s highest score rate, known as an exceptional review status. 4. In 1996, the Appellant experienced increasing pain and swelling in his lower left leg; he was subsequently diagnosed with deep vein thrombosis, known commonly as a blood clot. 5. After the Appellant submitted the required forms, the MNPD determined that the Appellant s health problem was compensable through the Department s Injury-On-Duty ( IOD ) program; the Appellant was also granted IOD leave days. 6. During the 1996 episode, the Appellant used forty-seven IOD leave days. 7. In 1998, the Appellant experienced another blood clot. Again, the problem was determined to be OID compensable; it was classified as a re-injury which stemmed from his original blood clots in The Appellant used eleven IOD leave days as a result of this incident. 3

5 8. The Appellant s medical expenses were paid through the IOD program for the 1996 and the 1998 blood clot incidents. 9. In 2009, because of a decentralization effort, the Appellant was transferred to the South Precinct Homicide Investigation Unit. As a result, his caseload increased from six homicides a year to sixteen homicides a year, and the Appellant was required to work additional hours. Most of the Appellant s work hours were spent sitting at his desk. 10. As a result of crime scene investigations in 2009, the Appellant was required to spend significant travel time in a vehicle. Because of the time sensitive nature of the job, it was not uncommon for the Appellant to work a forty-eight hour shift without sleep 11. Numerous times the Appellant was also assigned to stakeouts, sitting in a vehicle for periods as long as twenty-four hours, when he was unable to get out of the vehicle or to move around to improve his circulation. 12. To combat the sedentary nature of the Appellant s job, he developed a daily exercise regimen to decrease the chances of another blood clot. 13. In 2009, the Appellant began to experience pain and swelling in his leg, in addition to other symptoms. The Appellant was ultimately diagnosed again with deep vein thrombosis (five blood clots in his left leg and a complete blockage in his right leg), as well as pulmonary emboli, blood clots that had travelled to each lung. 14. The Appellant submitted an IOD claim for this incident. There is no dispute that the Appellant complied with procedural requirements to receive injury leave, and that there is no reason to doubt the legitimacy of the health problem. 15. Alternative Solution Care, Inc. ( ASC ) is a third party who administers the Department s IOD program. ASC determines whether an employee s IOD medical claim should 4

6 be categorized as IOD compensable. ASC does not have the authority to determine if an employee s IOD claim for leave time should be granted. 16. ASC determined that the medical incident at issue is compensable under the Department s IOD program. 17. The Department disagreed and denied the Appellant s IOD claim, both for medical benefits and injury leave. 18. The Benefit Board s IOD sub-committee reviewed the IOD medical claim and overturned that portion of the Department s decision, finding that the medical claim was IOD compensable. As a result of this decision, the Appellant s medical expenses for this problem were covered through the IOD program. 19. However, this decision had no effect on the characterization of the Appellant s leave required for the medical problem. The Benefit Board does not have the authority to determine an employee s claim for IOD leave time. 20. Although the Appellant had seventy-two days of IOD leave remaining, he was required to use sick leave days because of Metro s denial of the claim. The Appellant appealed this decision to the Civil Service Commission, resulting in the instant case. 21. An employee with the MNPD is allotted 130 leave days for each IOD injury. 22. According to Metropolitan Government Civil Service Rules, Section 4.8, an employee s injury or illness may qualify for IOD status if the health problem arises from the employment. The Metro Government appointing authority determines whether a health issue should be classified as IOD. 5

7 23. The Heart Disease and Hypertension Act, in Tenn. Code Ann. Section , states that heart disease or hypertension developed by police officers is presumed to have occurred in the course of employment. 24. The Appellant s claims for IOD leave for the 1996 and 1998 episodes were both approved by the MNPD under the heart disease and hypertension presumption. At that time there was no extensive medical investigation regarding the presumption or the causation of the blood clots. 25. The IOD classification of the 1996 and 1998 claims creates no precedent for treating the 2009 claim in the same manner, even though it resulted from the same cause. 26. In the MNPD, the safety coordinator receives all IOD claims and determines whether or not those claims are IOD compensable. In this function, the safety officer reviews the IOD claim form submitted, as well as available medical records. If needed, the safety coordinator may also contact the employee s treating physician or request additional information from the employee. 27. While the safety coordinator does not normally have medical training, this officer may consult with the Department s medical examiner in making an IOD determination. 28. When the IOD claim at issue in this matter was filed with the Department on June 24, 2009, the safety officer was Lieutenant Dana Lyon. Although the IOD form does not specify, Lieutenant Lyon classified the claim as one under the heart disease and hypertension presumption. Lieutenant Lyon has no medical training. 29. The Medical Examiner, Dr. Cynthia Perry, indicated to Lieutenant Lyon that blood clots are not caused by heart disease or hypertension. In an electronic message from Dr. Perry to Lieutenant Lyon on July 30, 2009, Dr. Perry stated the following: 6

8 Now, the Police Officer in question may have developed DVT [deep vein thrombosis] while on duty or during the course of his employment which would be a temporal relationship; however, I cannot appreciate how his duties or course of employment directly caused the DVT and subsequent PE [pulmonary embolism]. If he had had acute musculoskeletal trauma or injury prior to the DVT, that could be a proximate cause. Such trauma is not recorded in the Officer s available medical record. 30. Dr. Perry s also stated the following: I am working from memory right now as I do not have the Officer s records in front of me; however, I recall salient features of his case. injuries. 31. Blood clots are not caused by heart disease or hypertension, and are not 32. Since blood clots do not qualify an employee for the heart disease and hypertension presumption, the IOD claim was denied on this basis. 33. The Appellant s blood clots do not qualify him for IOD status under the heart disease and hypertension presumption. 34. Although the testimony is somewhat contradictory, Lieutenant Lyon indicated that she also reviewed the matter as a causation case and determined that the medical information was inclusive to show that the Appellant s blood clots were caused by the conditions of his employment. Civil Service rules provide that an IOD claim should be denied if the medical information is inconclusive. 35. Dr. Karl Malone Rogers, M.D., has treated the Appellant for his deep vein thrombosis, or blood clots, since Dr. Rogers initially tested the Appellant for genetic factors that would predispose the Appellant to develop blood clots, determining that the Appellant had none. 36. When blood clots recurred in 2009, Dr. Rogers administered a Prothrombin Gene Mutation test, which was not previously available, to determine whether the Appellant had any 7

9 genetic predisposition factors that would increase the likelihood of blood clots. Once again, the Appellant s results were normal: he did not have any genetic predisposition factors. 37. According to Dr. Rogers, risk factors for the development of blood clots include genetics, smoking, obesity, oncological disease, and immobilization. 38. The Appellant is not a smoker, nor has he ever been. He has been classified as moderately obese. 39. Dr. Rogers was never able to uncover any genetic factors, underlying malignancy, or traumatic injury that would cause the Appellant to develop deep vein thrombosis. 40. Although the Appellant suffers from type II diabetes, there is no medical evidence to support a correlation between patients who suffer from diabetes and those who develop blood clots. 41. In a Progress Note, dated September 10, 2009, Dr. Rogers included the following statement: These recurrent thrombotic episodes are believed due to his prolonged period of inactivity/immobilization during police surveillance. EXHIBIT There is no medical test on a living person to ascertain the exact time a blood clot was formed. Consequently, it cannot be determined whether the blood clots actually began to form while the Appellant was on-duty or off-duty. 43. According to Dr. Rogers, the extended periods of inactivity, required by the sedentary nature of the Appellant s job, led to the development of his blood clots. This opinion is to a degree of medical certainty and is supported by Dr. Rogers experience, expertise in the area, medical tests, evaluation of the Appellant, and the factors surrounding the Appellant s dayto-day routine. 8

10 RELEVANT LAW 1. The Appellant, as the party seeking to change the present state of affairs, has the burden of proof under Rule (7) of the Uniform Rules of Procedure for Hearing Contested Cases before State Administrative Agencies, TENN. COMP. R. & REGS. ch (June 2004 (Revised)), to prove by a preponderance of the evidence that the discipline imposed was appropriate under relevant law and regulations. See also Civil Service Rule 6.9(F)4. 2. Civil Service Rule 4.8, In-Line-of-Duty Injury Leave, contains the following relevant provisions: 1. Purpose Injury leave is used when an employee has an on-the-job injury or develops an occupational illness arising from employment with Metro Government. It is intended to provide salary continuation and job security until such time as the employee can return to his regular duties, with or without accommodation, or is determined as disabled from performing the essential duties of his job Determination of Injury Leave It shall be the responsibility of the appointing authority or his designated representative to determine if an employee reporting an injury or occupational illness is entitled to injury leave. An employee may appeal through the grievance procedure if he disagrees with the determination Occupational Illness If the illness is attributed to a specific incident and the employee failed to give written notice of the incident immediately to the supervisor, injury leave should be denied. Some illnesses are not attributable to a specific accident or illness. In such cases injury leave should be denied if the appointing authority or his designee has reason to doubt the claim for injury leave or the medical information is inconclusive Period of Compensation Leave for an injury shall extend for such time as the injured employee is unable to work, but in no event beyond 130 working days for the same or recurring injury. 9

11 5. Compensation Received During the period of time an employee is on injury leave he shall be entitled to receive his pay as established by the Pay Plan, subject to all other provisions as set out herein. 6. Use of Sick Leave An employee who is injured on-the-job or develops an occupational illness shall be granted injury leave. Such leave shall not be charged against the employee s sick leave nor may the employee use sick leave. Emphasis in original. 3. Tenn. Code Ann (a)(1) includes the following provision: Whenever the state of Tennessee, or any municipal corporation or other political subdivision of the state that maintains a regular law enforcement department manned by regular and full-time employees and has established or hereafter establishes any form of compensation to be paid to such law enforcement officers for any condition or impairment of health that results in loss of life or personal injury in the line of duty or course of employment, there shall be and there is hereby established a presumption that any impairment of health of such law enforcement officers caused by hypertension or heart disease resulting in hospitalization, medical treatment or any disability, shall be presumed, unless the contrary be shown by competent medical evidence, to have occurred or to be due to accidental injury suffered in the course of employment ANALYSIS and CONCLUSIONS OF LAW The Appellant has carried his burden of proof to show by a preponderance of the evidence that IOD leave time should be granted. There is no dispute that the Appellant fulfilled all the procedural requirements for this leave. Nor is there a dispute regarding the validity of the health issue. Both parties also agreed that the Appellant does not qualify for IOD leave under the heart disease and hypertension presumption, even though MNPD classified the IOD claim under this category. Rather, the issue concerns whether or not the Appellant has developed an occupational illness arising from employment with Metro Government. It is determined that he has. 10

12 The Appellant presented expert medical testimony to show that his problem arose primarily from his job duties, which involved sitting at his desk for the majority of day and sitting in a vehicle for extended periods while conducting investigations. The Appellant was especially immobilized during stakeouts, when he was unable to stand up and move around to improve his circulation. The Department argued that the medical evidence was inconclusive, and therefore the claim should be denied. While the Appellant does have moderate obesity, he has no other identified risk factors, including a genetic predisposition. Furthermore, Dr. Rogers stated the opinion that the Appellant s blood clotting issues resulted primarily from his sedentary job responsibilities. Although this opinion cannot be stated as a medical certainty, the weight of the evidence shows that inactivity on the job is the primary and most likely cause of the Appellant s venous issues. In contrast to Dr. Rogers opinion, the Department presented an electronic mail message from Dr. Cynthia Perry, the Metro Medical Examiner who is a physician but is not a specialist in this field. While Dr. Perry stated that she cannot appreciate how [the Appellant s] duties or course of employment directly caused the DVT and subsequent PE, she offered only this general statement and produced no specific proof to contradict the extensive testing, expertise, and experience of Dr. Rogers. Based upon the foregoing, it is determined that the Department misinterpreted the relevant Civil Service rule in denying IOD leave to the Appellant. Accordingly, it is ordered that the Appellant s request to receive the remaining seventy-two days of IOD leave is hereby granted. 11

13 This Initial Order entered and effective this 29th day of April, Ann M. Johnson Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 29th day of April, Thomas G. Stovall, Director Administrative Procedures Division 12