ROBERT L. LINCOURT Petitioner/Appellant
THE EMPLOYEES' RETIREMENT SYSTEM OF RHODE ISLAND, by and through SETH MAGAZINER, in his capacity as Chair and through WILLIAM B. FINELLI, in his capacity as Chair of the Disability Subcommittee of the EMPLOYEES' RETIREMENT SYSTEM OF RHODE ISLAND, Respondents/Appellees
Plaintiff: Edward C. Roy, Jr., Esq.
Defendant: Michael P. Robinson, Esq.
matter is before the Court for decision on the appeal of
Petitioner Robert L. Lincourt of the January 20, 2015
decision of the Board of the Employees' Retirement System
of Rhode Island (ERSRI), which denied the application of
Petitioner Lincourt (Petitioner) for a disability pension
following his retirement from the Fire Department of the Town
of North Providence, Rhode Island. Petitioner contends that
he satisfied the requirements for receiving a disability
pension, and ERSRI erred in finding that he failed to do so.
Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
Facts and Travel
was hired by the Fire Department of the Town of North
Providence on October 30, 2007. Petitioner was diagnosed with
cancer in his right kidney in September 2010. Later that
month, he underwent surgery which removed that kidney.
thereafter applied for a disability pension on January 14,
2011. Shortly after filing his application, "Lincourt
submitted an 'Applicant's Physician's Statement
for Disability' form signed by Frank Fraioli, Jr., D.O.,
and dated January 21, 2011." R. 20 at 326. Dr. Fraioli
opined that "it is presumed that his cancer was caused
by exposure during his employment as a firefighter."
Id. A medical report from Dr. Vincent J. Zizza,
dated December 29, 2010, stated that Petitioner's
"kidney cancer could have been caused from his
job." He added that Petitioner "did well"
after the surgery which removed his right kidney.
Id. Dr. Stephen G. McCloy prepared a medical report
pursuant to a workers' compensation claim. He found that
Petitioner "is actually capable of all duties, "
and his assertion that he should not return to employment as
a firefighter "is not supported by objective physical
deficits or impairments in his examination."
Id. at 327.
August 31, 2011, Petitioner was examined by Vishram B. Rege,
M.D. Dr. Rege found that Petitioner's "disability
appears to have occurred in the performance of his duties and
is not the result of willful negligence or misconduct, or as
a result of age or length of service." Id. Dr.
Rege also opined that "[t]here is an 80% chance that the
cancer will never recur." Significantly, he found that
Petitioner is disabled because "he faces potential
problems[, ]" and he did not state any duties required
of a firefighter that Petitioner is presently unable to
was also examined by Alberto Savoretti, M.D. on June 8, 2012.
He found that Petitioner "is not disabled, and given the
timeline of his illness, the cancer was not work
related." Id. He further concluded that
"[t]here is no disability . . . the cancer was already
there when [Lincourt] started working [for the Town of North
Providence Fire Department], this cannot be construed or
considered an occupational exposure, therefore . . . the
diagnosis of renal cancer is unrelated and was pre-existing
to his employment as a North Providence Firefighter."
Id. Dr. Savoretti further found the Petitioner to be
"physically and mentally capable and competent" and
able to "work all manner of jobs." Id. He
concluded that "[t]he threat of trauma from firefighting
to his other kidney is not excessive as the kidney is well
protected, and the cancer risk . . . would not be more from
occupation reasons than say landscaping . . . There is not a
reason not to work as a firefighter." Id.
F. Chaquette, M.D. examined the Petitioner on November 7,
2013. Id. at 328. He also concluded that Petitioner
was capable of working as a firefighter. Dr. Chaquette found
specifically that the Petitioner is "in good physical
condition and clearly could carry out the duties associated
with being a firefighter." Id. Noting that the
Petitioner "freely admits that he has no physical
disabilities that bother him at any time[, ]" he
concluded "from a physical point of view [Lincourt] is
not disabled in any way." Id.
B. Finelli, Chairman of the (ERSRI) Subcommittee
(Subcommittee), wrote the decision of February 6, 2014. After
reviewing the evidence presented, the Subcommittee found that
"Lincourt is not disabled." Id. at 329.
Additionally, it wrote, "the Subcommittee cannot find a
causal relationship between Lincourt's cancer and his
job." Id. The Subcommittee addressed the
physicians who examined Petitioner. It referenced that
"Dr. Chaquette noted that Lincourt 'freely admits
that he has no physical disabilities that bother him at any
time.' Likewise, Dr. Savoretti also found that Lincourt
was 'physically and mentally capable and competent'
and that '[h]e can work all manner of jobs."
Id. The Subcommittee then addressed Dr. Rege and
stated that Dr. Rege "indicated that [Petitioner] is
disabled 'because he faces potential problems, ' not
because of any specific inability to perform his job duties .
. . [and] '[t]here is an 80% chance that the cancer will
never recur."' Id. The Subcommittee
declared that it did not accept the assertion of Petitioner
"that he is disabled because of potential future
problems[.]" Id. at 329-30. It also found that
"he is not presently physically or mentally
incapacitated for further service such that he should be
retired." Id. at 330.
Subcommittee accepted the conclusion of Dr. Savoretti that
"the cancer was already there when [Lincourt] started
working [for the Town of North Providence Fire Department] .
. . [and] therefore . . . the diagnosis of renal cancer is
unrelated and was pre-existing to his employment as a North
Providence Firefighter." Id. The Subcommittee
cited the finding of Dr. Chaquette, who similarly determined
that he could not link Petitioner's cancer with his
employment as a firefighter. Id. The Subcommittee
then addressed the conclusions of Dr. Rege. Specifically, it
found that Dr. Rege, while concluding that the
Petitioner's condition "may" have been caused
by exposure to carcinogens in the course of his duties,
"appeared to base his opinion on causation on a
statutory presumption, " stating that "[t]he cancer
is considered to be an Occupational cancer as defined by
RIGL." The Subcommittee found that "Dr. Fraioli
also appeared to base his opinion on a presumption that the
cancer was work related." Id. It did "not
find that the general laws mandate a finding that
Lincourt's disability was caused by his job
duties[.]" Id. It concluded that "Lincourt
is not disabled, and that there is no causal relationship
between his kidney cancer and his job." Id.
February 12, 2014, the ERSRI accepted the recommendation of
the Subcommittee. See R. 20 at 324. Petitioner
appealed this denial on June 6, 2014. R. 21 at 332-67. A
reconsideration hearing was scheduled by the Subcommittee for
September 5, 2014. R. 26 at 378.
date, the Subcommittee met and heard argument from the
Petitioner. R. 32 at 443-53. Counsel for Petitioner argued
that according to the Americans with Disabilities Act and
Rhode Island statutes, "a person that has cancer in
remission is clearly still disabled because the cancer can
come back." Id. at 445. He further argued that
the decision of the Subcommittee was erroneous because
"there is a statutory presumption under the law that
does cover his cancer." Id. The Petitioner told
the Subcommittee that he was disabled from being a
firefighter because he cannot incur the exposure to potential
carcinogens and thus risk damage to his remaining kidney.
Id. at 448. It also heard from Mayor Charles
Lombardi, who recommended affirmation of the earlier decision
to deny the application of Petitioner. Id. at
452-53. After considering the evidence that the parties
presented, the Subcommittee again recommended that Petitioner
not be awarded an accidental disability pension. R. 33 at
ERSRI Retirement Board (the Board) met on September 10, 2014.
The Board accepted the recommendation of the Subcommittee and
denied Petitioner's application for an accidental
disability pension. R. 36 at 474; R. 38 at 510. The Board
scheduled an appeal hearing for January 14, 2015. R. 38 at
hearing, counsel for ERSRI summarized the findings of the
Subcommittee and argued that its findings should be upheld.
R. 41 at 519. Counsel for Petitioner again argued that
"the subcommittee was incorrect because that statute
[G.L. 1956 § 45-19-1] finds that cancer is caused by
firefighters' exposure to carcinogens." Id.
He further argued that even in the event that Dr. Savoretti
was correct in his conclusion that Petitioner had developed
cancer prior to employment with the Fire Department, the
condition was likely to have been aggravated by
Petitioner's exposure to carcinogens in the course of
said employment. Id. at 519-20.
for the Town of North Providence also addressed the Board. He
advocated that the Board should uphold the finding of the
Subcommittee because Petitioner "has no functional
impairment, no disability to perform all of the ordinary and
necessary functions of a firefighter." Id. at
520. He argued that there were other potential causes for the
Petitioner developing cancer, stating that "[b]oth Dr.
Savoretti and Dr. Chaquette, and Dr. McCloy, who originally
examined him for the town, indicated that he has a hobby of
dirt biking and he has a landscape business, and he has been
subject to exposures that could well produce cancer, equally
to the extent that his three-year tenure as a firefighter
might have." Id. He further argued that the
Board should accept the conclusion of Dr. McCloy, who had
"examined . . . [the Petitioner] in connection with his
injured-on-duty claim." Id. Specifically, he
emphasized that Dr. McCloy, "in response to the question
is he totally or partially disabled . . . [responded] Mr.
Lincourt is not disabled. He does have a permanent scar. He
does have a permanent loss of his right kidney. He invokes
the cancer-presumption statute, and states that further
exposure to professional fire fighting increases his risks of
cancer." Id. at 520-21. However, according to
counsel for the Town of North Providence, Dr. McCloy
concluded that though Petitioner ...