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Fagan v. City of Stamford

Court of Appeals of Connecticut

January 30, 2018

PAUL FAGAN
v.
CITY OF STAMFORD ET AL.

          Argued October 16, 2017

         Procedural History

         Appeal from the decision of the defendant pension trust fund board awarding the plaintiff a disability pension in the amount of 50 percent of his annual compensation, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Truglia, J., granted the motion for summary judgment filed by the defendant city of Stamford et al.; thereafter, the matter was tried to the court, Hon. A. William Mottolese, judge trial referee; judgment dismissing the appeal, from which the plaintiff appealed to this court. Affirmed.

          Paul Fagan, self-represented, the appellant (plaintiff).

          Anthony M. Macleod, with whom, on the brief, was James C. Riley, for the appellees (defendant Policemen's Pension Trust Fund Board of the City of Stamford et al.).

          Keller, Elgo and Bear, Js.

          OPINION

          ELGO, J.

         The self-represented plaintiff, Paul Fagan, a former police officer for the defendant city of Stamford (city), appeals from the judgment of the Superior Court dismissing his appeal from the decision of the defendant Policemen's Pension Trust Fund Board of the city (board) awarding him a disability pension in the amount of 50 percent of his annual compensation.[1] On appeal, the plaintiff contends that the board improperly denied his request for an enhanced disability pension pursuant to the collective bargaining agreement (agreement) between the city and the Stamford Police Association (association). We disagree and, accordingly, affirm the judgment of the Superior Court.[2]

         The relevant facts, as gleaned from the amended return of record that was submitted by agreement of the parties, are largely undisputed. In 1971, the city and the association entered into an ‘‘Agreement and Declaration of Trust'' (trust agreement), which established the city's ‘‘Policemen's Pension Trust Fund'' (fund). The stated purpose of the fund is to provide ‘‘pension and related benefits to [e]mployees, [r]etirees, their families, dependents, or beneficiaries who satisfy the eligibility requirements . . . .'' The fund is administered by the board, whose powers and duties are delineated in the trust agreement. Pursuant to article fifth, § 2, thereof, the board is empowered, inter alia, to ‘‘[c]onstrue the provisions of this [t]rust [a]greement, and [its] terms'' and to ‘‘[f]ormulate, adopt, and promulgate any and all rules and regulations necessary or desirable to facilitate the proper administration of the [fund] . . . .'' The board's authority to administer the fund also is memorialized in the city charter. See Stamford Charter § C7-10-1 et seq.

         At all times relevant to this appeal, two distinct disability pensions were available to members of the city's police department under the city charter and the agreement, respectively. Pursuant to § C7-20-1 of the Stamford Charter, the board is authorized to grant a disability pension ‘‘equal to [50 percent] of the member's compensation during the last year of service'' upon finding that a member of the police department ‘‘in the actual performance of duty and without personal fault or misconduct, shall have become permanently disabled, so as to be incapacitated in the performance of duty.''

         In addition, the agreement authorizes the board to award an enhanced disability pension, provided certain criteria are met. Relevant to this appeal is paragraph 9 (K) of the agreement, which provides in relevant part: ‘‘Active police officers of the Stamford Police Department who suffer a work related illness or injury at any time during their employment as a police officer shall be eligible for the following [d]isability [p]ension benefits, in addition to those currently existing pursuant to the [c]harter of the [city] and [trust agreement]. . . . [2] Such members shall beentitled to a [d]isability [p]ension equal to [75 percent] of his/her base pay at the time of the [a]pplication if at least two out of three independent medical physicians selected by the [board] in accordance with the provisions of [p]aragraph 9 (K) (1) above, [3] concur that same member has a permanent/ partial disability of [30 percent] or a combined permanent/partial disability of [30 percent] or more of any part of his/her body, including mental disability, and also at least two out of three of said independent medical physicians concur that said member is unable to meet the physical or mental requirements of an entry level patrolman for the Stamford Police Department.'' (Footnote added.)

         Pursuant to its authority under the trust agreement to enact rules and regulations related to the proper administration of the fund, the board promulgated a retirement guide. The retirement guide details the protocols and procedures by which members may retire from the police department. It requires members to submit a letter to both the chief of police and the board that ‘‘[m]ust include [the] effective date of retirement and type of retirement.'' It also requires members who are applying for a disability pension to apprise the board of that request. The retirement guide then explains that ‘‘[t]hree [i]ndependent [m]edical [e]xaminations . . . will be arranged for you. These exams must not be with any [d]octor that has seen you in the past. Please review with the [board's office] which [independent medical examination] [d]octors are available for use. . . .'' Those independent medical examinations, in turn, are used by the board to determine an applicant's eligibility for a disability pension under the city charter and the agreement.

         The plaintiff began his employment with the city's police department in July of 2004. On October 1, 2012, pursuant to the procedures outlined in the retirement guide, the plaintiff sent a letter to the chief of police and the board. That letter stated in relevant part: ‘‘I am submitting my notice to retire from the Stamford Police Department after more than eight years of service. I am applying for a disability pension under the [agreement], as I am eligible for the disability benefits listed in the [agreement] in addition to those currently existing pursuant to the charter . . . based on injuries I received in the line of duty. My projected date of retirement at this time is December 7, 2012.''[4]

         In accordance with both paragraph 9 (K) (1) of the agreement and the retirement guide, three independent medical examinations of the plaintiff were scheduled in October and December of 2012. In the two October, 2012 examinations, the board sent a letter to the physician that stated in relevant part that the board ‘‘would like you to perform an [i]ndependent [m]edical [e]xamination on [the plaintiff]. Please do not proceed if this officer has ever been treated by you. Please advise us if that is the case. The specific information we need in your report includes: [1] Your diagnosis and prognosis. [2] Your opinion of the percentage of disability. [3] Your opinion of the permanency of disability. [4] Your opinion of the causation and job relatedness of the condition. [5] Your opinion if the [o]fficer would be unable to meet the physical requirements of an entry level patrolman.'' (Emphasis in original.) The relevant language in a November, 2012 letter is virtually identical except that it does not require that the physician's report include his opinion as to whether the plaintiff would be unable to meet the physical requirements of an entry level patrolman. It is undisputed that the board did not direct the physicians to use any specific edition of the Guides to the Evaluation of Permanent Impairment (guide), [5] published by the American Medical Association, in preparing their reports. It further is undisputed that, pursuant to the agreement, the physicians were free to utilize whichever edition of the guide that they preferred.[6] As the plaintiff acknowledges in his principal appellate brief, the agreement ‘‘makes no mention of any particular guide to permanent impairment [and] the independent medical examiner may use any guide he/she chooses . . . .''[7]

         On October 24, 2012, the plaintiff was examined by Patrick Carolan, a physician with Merritt Orthopaedic Associates, P.C. In his October 25, 2012 report, Carolan assigned a 27 percent disability rating to the plaintiff utilizing the sixth edition of the guide. Carolan further opined that the plaintiff's injuries were causally related to his official duties and that the plaintiff was unable to meet the physical requirements of an entry level patrolman.

         On October 31, 2012, the plaintiff was examined by Gary Solomon, a physician with Rehabilitation Consultants, P.C. In his October 31, 2012 report, Solomon assigned a 38 percent disability rating to the plaintiff. Significantly, Solomon did not specify in his report which edition of the guide he utilized in reaching that determination. Rather, he simply indicated that he was ‘‘[f]ollowing the [American Medical Association] Guides to the Evaluation of Permanent Impairment . . . .''[8]Like Carolan, Solomon opined that the plaintiff's injuries were causally related to his official duties and that he was unable to meet the physical requirements of an entry level patrolman.

         On December 14, 2012, the plaintiff was examined by Kevin Plancher, a physician at Plancher Orthopaedics & Sports Medicine.[9] In his subsequent report, Plancher assigned a 13 percent disability rating to the plaintiff utilizing the sixth edition of the guide. Plancher also opined that the plaintiff's injuries were causally related to his official duties.

         On January 8, 2013, a regular meeting of the board was convened. At that meeting, the board went into an executive session to discuss three retirements.[10] The minutes of that meeting indicate that, when the executive session concluded, a motion ‘‘to approve a 50 percent disability pension, as per the charter, to one officer'' was unanimously approved by the board. The board then issued a written resolution dated January 8, 2013, which stated: ‘‘Resolved that the [board] hereby grant[s] a [d]isability [p]ension, pursuant to [§] 7-20-1 of the [c]harter of the [city], to: [the plaintiff] who has been a member of the Stamford Police Department for over eight years. [He] will be entitled to a total pension of 50 [percent] of [his] annual salary, or $37, 427.35 annually, effective January 11, 2013.''[11] That resolution was signed by all five members of the board.

         Ten days later, the plaintiff sent a letter to Carolan that lies at the heart of this appeal. In that written correspondence, the plaintiff informed Carolan that his October 25, 2012 report was ‘‘vastly different from another doctor's opinion of the same injuries.'' He then explained that, in the ‘‘spirit of transparency, '' he believed that Carolan should know that ‘‘Solomon has reached a numerical value of 38 [percent disability] compared to a total of 27 [percent] by [Carolan].''[12] The plaintiff also informed Carolan that he had ‘‘applied for a disability pension from the Stamford Police Department and the requirements were a numerical value [of 30 percent] or more . . . and [Carolan] did not reach that numerical requirement based on his ratings not totaling 30 [percent] or more.'' Accordingly, the plaintiff stated that he had ‘‘included [Solomon's] medical report for your review and consideration. If [Carolan] chooses to review the report and make any amendments, as he deems [necessary, it] would be greatly appreciated.'' The plaintiff at that time also opined that the discrepancy between the disability ratings assigned by Carolan and Solomon ‘‘seem[s] to be based on a different schematic or methodology . . . .'' The plaintiff then requested that ‘‘Carolan consider using the same schematic or methodologies that were used by [Solomon] to come to a similar numerical value.'' (Emphasis added.) Notably, the plaintiff in that letter never referenced the guide or any particular edition thereof.

         The plaintiff then stated that Carolan ‘‘has every right to amend his report as he determines necessary, in light of this new information he is receiving today, and in the spirit of accuracy and fairness. Any amendments to the medical report would be considered an act that was executed on [Carolan's] own volition and without duress or influence by any other person. Purposes of this letter were solely for informative reasons. The information provided to [Carolan] was divulged for transparency and accuracy alone. Any amendment/ changes or additions to the report can be forwarded to [the plaintiff], his address is listed below. Kindly respond to this request in writing at your earliest convenience. Thank you in advance for anticipated cooperation concerning this matter regarding the disability ratings of retired police officer Paul Fagan.'' The letter concluded by listing the plaintiff's home address. It is undisputed that the board was not copied on that written communication or informed in any manner that the plaintiff had sent it to Carolan ten days after the board's January 8, 2013 decision on his application for a disability pension.

         The return of record is silent as to what transpired over the ensuing months until Carolan mailed a letter to the plaintiff dated April 9, 2013, which was addressed to the board. In that letter, Carolan stated: ‘‘I have been requested by [the plaintiff] to [reevaluate] the independent medical report that I had submitted to you on October 25, 2012. In a letter received from [the plaintiff], he asked that I use the [fifth] [e]dition of the [guide]. Previously, I had used the [sixth] [e]dition.''[13] Carolan then detailed eight specific changes ‘‘in the calculations of the impairment present'' in the plaintiff ‘‘[w]hen the [fifth] [e]dition is used, '' which together resulted in a disability rating of 36 percent.[14] Both the plaintiff and ‘‘Attorney William J. Varese'' were copied on the bottom of that letter.

         The plaintiff then forwarded a copy of Carolan's April 9, 2013 letter to the board under cover dated April 14, 2013. In that correspondence, the plaintiff stated: ‘‘I'm writing to inform you that [Carolan] has amended his independent medical exam report regarding my injuries . . . and I am requesting that the [board] reconsider my application for a 75 [percent] disability pension under the [agreement]. Two out of three ...


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