Lincourt v. Employees' Retirement System of Rhode Island

          For Plaintiff: Edward C. Roy, Jr., Esq.

          For Defendant: Michael P. Robinson, Esq.

          DECISION

          TAFT-CARTER, J.

         This 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.

         I Facts and Travel

         Petitioner 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.

         Petitioner 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.

         On 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 perform. Id.

         Petitioner 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.

         Raymond 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.

         William 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.

         The 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.

         On 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.

         On that 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 463-68.

         The 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 510.

         At the 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.

         Counsel 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 ...