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Sauro v. Lombardi

Supreme Court of Rhode Island

February 20, 2018

John Sauro
James Lombardi, in his capacity as Treasurer of the City of Providence, et al.

         (PC 14-3388)

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


          Goldberg, Justice.

         This case came before the Supreme Court on November 8, 2017, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. The defendants, the City of Providence (the city) and the Retirement Board of the Employees Retirement System of the City of Providence (the board), (collectively defendants), appeal from the entry of summary judgment in favor of the plaintiff, John Sauro (plaintiff or Sauro). On appeal, the defendants argue that the trial justice erred by requiring the city to continue to provide accidental disability pension benefits to the plaintiff and to place him on a waiting list to return to his position at the Providence Fire Department pursuant to § 17-189(8)(a) of the Providence Code of Ordinances.[1] After hearing the arguments of counsel, examining the memoranda submitted by the parties, and reviewing the record, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.

         Facts and Travel

         In July 1998, plaintiff suffered a right shoulder injury while performing his firefighter duties. Mr. Sauro had been a firefighter since August 5, 1991. In October 2000, the board granted plaintiff an accidental disability pension for his on-the-job shoulder injury. In April 2011, footage of plaintiff lifting substantial weights at a gym aired on a local television channel. The board subsequently ordered plaintiff to submit to an independent medical examination (IME). At the 2011 IME, it was determined that plaintiff remained disabled from his 1998 injury. Again in 2013, the board directed plaintiff to undergo an IME, to be conducted by Brian McKeon, M.D., in Boston, Massachusetts; plaintiff refused to do so because, he asserted, he was bedridden due to both physical and psychological illnesses. The city then hired a private investigator to undertake surveillance of plaintiff. In September 2013, plaintiff was observed leaving his home, driving his vehicle, and shopping at various retail stores. On December 18, 2013, the board voted to suspend plaintiff's accidental disability pension based on his failure to attend the IME that had been scheduled for October 16, 2013.

         The plaintiff filed this action on July 8, 2014, seeking to overturn the board's decision to suspend his benefits. The plaintiff sought a preliminary injunction to restore his accidental disability pension benefits, and a five-day hearing was held in October 2014. The trial justice issued a written decision on December 2, 2014, denying plaintiff's motion for a preliminary injunction. In the face of that decision, plaintiff agreed to undergo the IME on December 23, 2014, and his accidental disability pension benefits immediately were reinstated. The examining physician, Dr. McKeon, concluded that "[plaintiff] could fight fires with [the right] shoulder and work through this as he [h]as in the last 15 years[, ]" and that "[r]elative to [plaintiff's] right shoulder, he is functional." However, Dr. McKeon ultimately opined that plaintiff was not fit to return to his firefighter duties based on unrelated psychological disabilities and colorectal illness. The record discloses that it was plaintiff who convinced Dr. McKeon that he was not fit to serve as a firefighter. The plaintiff produced a comprehensive file detailing his complicated physical and mental health history, which he presented to Dr. McKeon at the IME. In his opinion letter to the board, Dr. McKeon disclosed that plaintiff provided him with medical documentation and personal notes about his maladies:

"I also received several MRI reports which the patient gave to me today.
"* * *
"The patient also gave me a tremendous amount of handwritten notes with all of his significant psychiatric conditions that have deteriorated over the last 2 years.
"* * *
"Finally, I want to mention there is a significant amount of colorectal notes that were given to me by the patient.
"* * *
"He takes multiple medications. Many of them are psychiatric medications. He gave me a list which I reviewed."

         Doctor McKeon therefore concluded:

"At this point with regard to his work employment disability, this seems to be the one issue relative to this patient. I believe based on his shoulder that this gentleman is clearly not totally disabled.
The status of his disability is not related to his shoulder.
"* * *
"Overall I believe this patient is disabled because of the other issues, but not relative to the right shoulder."

         On April 22, 2015, the board voted to discontinue plaintiff's accidental disability pension "pursuant to medical documentation received by the [b]oard confirming that [plaintiff was] no longer disabled as a result of [his] July 17, 1998 job-related injury." Based on his inability to return to work as a firefighter, the board did not place plaintiff on a list for appointment to duty. Significantly, although both plaintiff and his attorney were notified on April 17, 2015, of the impending board meeting scheduled for April 22, 2015, neither plaintiff nor his previous counsel attended the proceeding.

         On August 13, 2015, plaintiff filed a thirteen-count second-amended complaint. In the face of questions concerning the subject-matter jurisdiction of the Superior Court to hear the merits of plaintiff's complaint, the parties stipulated to the dismissal of counts 1-12[2] on September 16, 2015.[3] The remaining count, count 13, sought declaratory and injunctive relief, alleging that, in accordance with § 17-189(8)(a) of the pension ordinance, plaintiff was entitled to continue to receive his accidental disability pension during the time he remained on a waitlist for an opening in the fire department. In count 13, plaintiff alleged that, in accordance with § 17-189(8)(a), the city was required to pay accidental disability pension benefits until his appointment to a position within the department. Both plaintiff and the city filed cross-motions for summary judgment on the sole remaining count, and a hearing was held on October 5, 2015. At the outset, the trial justice determined that the Superior Court was vested with subject-matter jurisdiction over a claim for declaratory and injunctive relief[4], because plaintiff was simply asking the court to construe § 17-189(8)(a) and pass on whether the board was correct when it voted to discontinue plaintiff's accidental disability pension benefits:

"It has been suggested that when we get to the merits, that [plaintiff] could apply * * * for an ordinary disability. The Court is not going to make any determination as to whether Mr. Sauro is entitled to that. It is really what should he do now. And the Court feels that with the ordinance that has been set forth by both parties, with the undisputed facts, with the Chapter 9-30 [of the General Laws], which is a chapter on declaratory judgments, it clearly sets forth the scenario where the Court can interpret the statute and determine what Mr. Sauro's rights under that statute are procedurally, and then with regard to any merits, the Court is not going to get involved."

         Before the trial justice-in a remarkable turn of events-plaintiff argued that he had fully recovered from his shoulder injury and all other maladies, was no longer disabled, and was ready to return to work, despite plaintiff's earlier claims of disability that served as the basis of Dr. McKeon's conclusion. When confronted with defendants' argument that plaintiff could not return to work due to his other illnesses, plaintiff's counsel responded:

"I understand the City's argument is this makes little sense that you would have someone who presumably cannot return to work for other disabilities-a point which we vigorously disagree with, but let's get by that-what they are trying to do in their papers is to draft new legislation, which is not their job, not my job, and certainly not the Court's job."

         Rather, plaintiff argued that he should receive a return of benefits while remaining on a list for appointment for duty as is contemplated by § 17-189(8)(a), without any evidence or finding by the board that he was fit for duty and prepared to return ...

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