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Borrelli v. Retirement Board of Employees' Retirement System of Rhode Island (Ersri)

Superior Court of Rhode Island

August 9, 2018


          Providence County Superior Court

          For Plaintiff: Michael J. Lepizzera Jr., Esq.

          For Defendant: Michael P. Robinson, Esq. (Defendants).

          Amy H. Goins, Esq.; Michael A. Ursillo, Esq. (Intervenor).


          LANPHEAR, J.

         Before this Court is the appeal of Appellant Damon Borrelli (Appellant or Borrelli) from the May 11, 2016 decision of the Retirement Board (the Board) of the Municipal Employees' Retirement System of Rhode Island (ERSRI), [2] which denied his application for an accidental disability pension. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.

         I Facts and Travel

         A Borrelli's Work History and Initial Application

         Appellant is a veteran of Operation Desert Storm who was honorably discharged in 1992. (Ex. 15 at ERSRI00290.) Borrelli applied to and was accepted by the South Kingstown Police Department (SKPD) in 2002. (Ex. 10 at ERSRI0075-0076.) Prior to admission to the Municipal Police Academy, Borrelli submitted to a required independent medical examination in which the examiner found "[n]o medical contraindication to [Borrelli] performing this job without accommodation." (Ex. 8 at ERSRI0066.)

         During his time as a police officer with the SKPD, Borrelli received "numerous commendations." (Ex. 65 at ERSRI00588, Hr'g Tr. 40:8, May 11, 2016.) In 2006, Borrelli led the department in arrests. Id. at 40:16-18, ERSRI00588. While working for the SKPD, Borrelli also attended Roger Williams Law School, completing his J.D. in June 2011. (Ex. 30 at ERSRI00397, Hr'g Tr. 34:24-35:5, Oct. 3, 2014.)

         Prior to the subject incident, Borrelli had seen a number of counselors and mental health professionals infrequently, starting in the 1990s. (Report of Dr. Gallagher, Ex. 15 at ERSRI00295.) In October 2009, Borrelli saw Maryann Cascio, LISCW, RN for issues relating to his relationship with his girlfriend. Id. at ERSRI00296. Cascio referred him to Dr. James Gallo for treatment for ADHD in January 2010. Id.

         On March 20, 2010, Borrelli was serving on duty as a plainclothes officer on an alcohol enforcement detail, in an unmarked car. At 1:30 A.M., Borrelli received a call from the dispatcher asking him to respond to a driver who may have been drinking. (Ex. 65 at ERSRI00589, Hr'g Tr. 41:13-24, May 11, 2016.) While responding to the call, Borrelli passed a car in a no-passing zone, after which the driver of the car sped up and started flashing his high beams, and screaming that he was going to "kill" Borrelli. 41:25-42:1-11. Borrelli pulled over to the side of the road to let the car pass and prepared to call in the car's license plate in order to have a marked cruiser respond, when the car "smashed" into him. Id. at 42:12-15; see also IME of Dr. Patel, Ex. 12 at ERSRI0094. Borrelli identified himself as a police officer and asked for the driver's license and registration. (Ex. 65 at ERSRI00589, Hr'g Tr. 42:17-19, May 11, 2016.) According to Borrelli, the driver continued to scream threats at him and then jumped him. Id. at 42:19-25. Borrelli reported that he was particularly anxious during the encounter because his gun was not in the usual secure holster that he wore when he was in uniform, and the suspect thus might be able to grab his gun.[3] (IME of Dr. Patel, Ex. 12 at ERSRI0094.) Borrelli also reported that he saw his daughter's face near him during the attack. (FFDE of Dr. Gallagher, Ex. 15 at ERSRI00190; IME of Dr. Patel, Ex. 12 at ERSRI0094.)

         On or around March 20, 2010, Borelli initiated an injured on duty (IOD) claim, reporting "bruising/pain in back, neck, right elbow and right knee" as a result of the assault.[4] (Ex. 15.) On April 8, 2010, Borrelli sought treatment for his back pain from Dr. William S. Buonanno, an orthopedist, who diagnosed him with acute sprains of the thoracic and lumbosacral spine and muscle spasms. (Ex. 15 at ERSRI00146.) Dr. Buonanno referred Borelli for an MRI and spinal injections after his symptoms continued. Id. at ERSRI00152, 00157.

         Dr. Buonanno cleared Borrelli to return to work on a light duty schedule on March 30, 2011, and Borrelli was assigned to report for duty on April 4, 2011 (Treatment History of Dr. Buonanno, Ex. 15 at ERSRI00162.) On April 4, Borrelli called out sick from his first shift. (Report of Dr. Gallagher, Ex. 15 at ERSRI00287.) The same day, the Police Department received a fax from Dr. James Gallo, who reported that he had been treating Borrelli and that it was his opinion that Borrelli was experiencing PTSD. Id. Dr. Gallo recommended that Borrelli not return to work until May 9, 2011. Id.

         On April 20, 2011, the SKPD referred Borrelli for a fitness for duty evaluation (FFDE) with Patricia L. Gallagher, Ph.D., a licensed psychologist. (Ex. 15 at ERSRI00184.) Dr. Gallagher conducted extensive interviews and a battery of psychological tests and filed her report with the SKPD on June 21, 2011. Id. at ERSRI00286. In her report, Dr. Gallagher concluded that Borrelli was not psychologically fit to perform the tasks of a police officer at the time of the evaluation and did not have the ability to handle the stress of a full service officer. Id. at ERSRI00299. Dr. Gallagher also concluded that while the "root cause" of Borelli's stresses and limitations did not arise from the Assault, the Assault "exacerbated" his underlying disability. Id.

         Borrelli filed an application for accidental disability retirement with the Municipal Employee's Retirement System on September 29, 2011, alleging disabling back pain[5] and PTSD as a result of the Assault. (Ex. 2 at ERSRI006-007). Pursuant to the requirements of R.I. Admin. Code 29-1-4:1.9, Borrelli submitted physician's statements from Dr. James Gallo and Dr. William Buonanno, medical records related to a prior cervical strain in May 2007, a disability statement from his employer, copies of all injury and accident reports from his tenure as a police officer, and records of his work history three years prior to and three years after the Assault. (Exs. 4-11.)

         Borrelli received Independent Medical Evaluations (IMEs) from Dr. Sandhya Patel, a psychiatrist; Dr. Stephen Saris, a neurosurgery specialist; and Dr. Alberto Savoretti, an internal medicine specialist, in December 2013. (Ex. 12 at ERSRI0092; Ex. 13 at ERSRI00106; Ex. 14 at ERSRI00132.) Dr. Patel concluded to a reasonable degree of certainty that Borrelli was disabled from PTSD, but the disability was not the result of the Assault, finding instead that Borrelli had "a history of multiple traumas prior to this accident that are most likely the cause of his PTSD," including a victimized childhood and his experiences as a Navy Seal in Operation Desert Storm. (Ex. 12 at ERSRI00100.) Dr. Patel also concluded that Borrelli had not reached maximum medical improvement ("MMI") with regard to his PTSD because he had "a history of resistance towards antidepressant medications," had not seen a therapist for the prior six months, and had not visited his psychiatrist in over three months. Id. at ERSRI00100-00101.

         Dr. Saris concluded that to a reasonable degree of certainty, Borrelli was not disabled as a result of his back injury and had reached MMI. (Ex. 13 at ERSRI00113.) He opined that the patient had suffered a soft tissue injury that, "while very painful in the short term," had resolved by the summer of 2010. Id. Dr. Saris further stated that based on his assessment, Borrelli could have returned to work as a Police Officer "without restriction." Id.

         Dr. Savoretti concluded in his IME that Borrelli was disabled as a result of the Assault and had reached MMI, but stated that his assessment was "with reservation." (Ex. 14 at ERSRI00131-00132.) In his assessment, Dr. Savoretti stated that based on his review of Borrelli's psychiatric records, his PTSD claim was "without merit given pre-existing condition[s] as well as the fac[t] that the incident of cause, a simple uncooperative subject resulting in a mild to moderate injury that would be commonplace for a police officer, being so mild as [to] not construe a traumatic event especially in light of his previous history." Id. at ERSRI00134. As evidence that Borrelli's PTSD condition was preexisting, Dr. Savoretti cited a reference to "PTSD and depression from [D]esert [S]torm" in a November 2010 evaluation of Borrelli by East Greenwich Spine and Sport. (Ex. 5 at ERSRI0048.) With regard to the back injury, Dr. Savoretti stated that based on the "subacute findings" of his exam and the onset of the symptoms, he "felt compelled" to grant a "back related disability pension" to Borrelli but that his "support and recommendation for this disability is the lowest that it could be in the affirmative." (Ex. 14 at ERSRI00135.)

         B The Disability Subcommittee's February 6, 2014 Recommendation and Appeal

         The Disability Subcommittee of the ERSRI issued a recommendation on February 6, 2014. (Ex. 18.) In its Decision, the Subcommittee concluded that Borrelli was not mentally or physically incapacitated[6] as a result of the Assault. Id. at ERSRI00348. In making its finding that Borrelli was not mentally disabled with PTSD as a result of the Assault, the Subcommittee relied on the IME reports of Dr. Patel and Dr. Savoretti. The Subcommittee concluded that "[w]hile the fact that Borrelli's mental health issues appear to date back many years is not necessarily dispositive," the evidence does not "support a claim that [the Assault] was a proximate cause of the disability." Id. The Board voted to accept the recommendation of the Disability Subcommittee on February 12, 2014, and notified Borrelli in a one page letter on May 15, 2014. Id. at ERSRI00343.

         Pursuant to R.I. Admin. Code 10-00-1.9(F)(1), Borrelli appealed the decision of the Board on June 11, 2014 and requested a reconsideration hearing before the Disability Subcommittee. (Ex. 20.) On July 22, 2014, the Town submitted a request to participate in Borrelli's appeal, to which Borrelli assented. (Exs. 24, 25.)

         Borrelli's second hearing before the Disability Subcommittee occurred on October 3, 2014. At the hearing, Attorney Gary Gentile, counsel for Borrelli, requested that the Board "engage two more doctors trained in the treatment and diagnosis of [PTSD] in order to get a full medical panel on that issue." (Ex. 30 at ERSRI00392, Hr'g Tr. 13:5-8, Oct. 3, 2014.) The Subcommittee issued its decision the day of the hearing. (Ex. 31 at ERSRI00411), with a cursory reference to the Assault. Id. at ERSRI00414. Basing its recommendation on the fact that Borrelli had not provided further evidence, the Subcommittee recommended that the Board deny Borrelli's application. Id. The Board voted to adopt the Subcommittee's recommendation and issued its second notice of denial on January 26, 2015. (Id. at ERSRI00411.)

         On February 24, 2015, Borrelli appealed the Second Notice of Denial through counsel. (Letter from Gary Gentile to Frank Karpinski, Ex. 32 at ERSRI00421.) In his appeal of the Notice, Borrelli asserted that the decision of the Disability Subcommittee was based on "unlawful procedure, the failure to provide a medical panel qualified to diagnose and treat Post-Traumatic Stress Disorder, [and] improper standards employed by the medical panel," and further argued that the Subcommittee's recommendation was otherwise not in accordance with law. Id.

         C April 8, 2015 Hearing Before the Board

         On March 16, 2015, the Retirement Board informed Borrelli that it would grant him a hearing before the full Retirement Board. (March 16, 2015 Letter from the Retirement Board to Gary Gentile, Ex. 35 at ERSRI00428.) Attorney Gentile represented Borrelli at the hearing on April 8, 2015, and submitted that the Subcommittee erred in appointing only one IME physician who was qualified to diagnose PTSD. (Ex. 36 at ERSRI00433, Hr'g Tr. 7:2, Apr. 8, 2015.) Gentile then requested that the application be remanded to the Subcommittee for two additional psychological evaluations. Id. at ERSRI00435, Hr'g Tr. 13:14-17. The Board agreed and Borrelli was officially assigned to receive two further IMEs on April 22, 2015. (Ex. 50 at ERSRI00499.)

         D Additional IMEs and Third Recommendation

         Dr. John Ruggiano, a specialist in psychiatry, conducted an IME on Borrelli on July 2, 2015. On the IME form, Dr. Ruggiano checked "yes" to certify that Borrelli was incapacitated from the performance of service, but checked "no" in response to the question "[i]s the disability as a result of the reported accident sustained in the performance of the applicant's job," and wrote "see addendum" after the question regarding maximum medical improvement. Ex. 44 at ERSRI00477.) However, the addendum to Dr. Ruggiano's report notes "[t]here was not a specific injury providing a basis for the patient's current condition. Rather he is showing the result of cumulative factors of which the incident of 3/20/10 was the 'final blow.'" Id. at ERSRI00479. Dr. Ruggiano concluded that "from the vantage point of knowing the five year course since the injury of 3/20/10, a diagnosis of PTSD cannot be made." Id. at ERSRI00481. Instead, he concluded Borrelli exhibited a "formulation" called "confrontation with mortality." Id. Dr. Ruggiano also concluded that Borrelli was "showing good judgment" by not returning to work as a police officer, based on Borrelli's self-reports that his "level of force would go up too quickly" in on-duty conflicts. Id. at ERSRI00480.

         Dr. Ronald Stewart, also a specialist in psychiatry, conducted the second of the two additional IMEs on Borrelli on June 17, 2015, submitting his report on July 23, 2015. (Ex. 45 at ERSRI00483-00484.) Dr. Stewart concluded that Borrelli was disabled as a result of the Assault, noting

"[e]ven though there was a history of [traumatic events] and exposure to disturbing military events prior to the [assault], he did not report any symptoms of PTSD nor receive treatment for such. He was functioning well as a police officer. He was able to graduate from U.R.I., obtain a Master's Degree, and was attending law school at the time of the [assault]." Id. at ERSRI00487.

         However, Dr. Stewart also found that Borrelli had not reached maximum medical improvement, stating that it was necessary for Borrelli to "receive appropriate antidepressant medication and counseling in order for his symptoms of PTSD to improve." Id. at ERSRI00486.

         Anait Azarian, Ph.D., Dr. James Gallo, and Susan Hamin, LMHC, three of Borrelli's treating clinicians, also submitted letters in support of his application. (Exs. 46-48.) All three clinicians iterated the conclusion that Borrelli developed PTSD as a result of the Assault, and was permanently disabled as a result of the Assault. Id. Dr. Azarian, who treated Borrelli from April 1, 2011 to December 21, 2011, noted that he was aware of Borrelli's "potentially traumatic experiences," but that it was "highly unlikely to conclude that any other traumatic events from his past are the cause of his disability." (Ex.46 at ERSRI00490; see also Treatment Notes of Dr. Azarian, Ex. 15 at ERSRI00220-00257.) Dr. Gallo similarly concluded that while it was "well-known" that Borrelli "had trauma in the past," the Assault "was not the cause," and stated that "recent events and evaluation of his disability alone have caused recurrent symptoms of agitation and poor sleep with nightmares and flashbacks." (Ex. 47 at ERSRI00492.) Susan Hamin, who had treated Borrelli since July 2014, opined that although Borrelli had "a history of events that may have been traumatic . . . he did not develop PTSD nor did he meet criteria for PTSD" before the Assault. (Ex. 48 at ERSRI00494.)

         On September 4, 2015, the Disability Subcommittee issued its third decision on Borrelli's application for an accidental disability pension, again recommending that the Board deny his application. (Ex. 51 at ERSRI00507.) The Subcommittee again relied on Dr. Patel's finding that Borrelli "has a history of Post-Traumatic Stress Disorder symptoms dating back to many years prior to this accident," as well as Dr. Savoretti's finding that Borrelli's PTSD claim is "without merit" given the "pre-existing condition as well as the fact that the Assault of cause, a simple uncooperative subject resulting in a mild to moderate injury would be commonplace for a police officer." Id. at ERSRI00506. The Subcommittee also noted that Dr. Ruggiano "indicated that a diagnosis of PTSD could not be made." Id.

         Additionally, the Subcommittee again found that Borrelli was not mentally or physically incapacitated by the Assault with regards to his back injury, citing the reports of Dr. Saris and Dr. Savoretti. (Ex. 51 at ERSRI00506.) The Subcommittee concluded its recommendation to the Board by noting that it "continues to have concerns" about Mr. Borrelli's testimony that his condition of PTSD prevents him from working based on limitations in his ability to focus, concentrate, multi-task and make judgment calls, in light of his testimony that he completed law school in 2011." Id. at ERSRI00507.

         E Second Appeal, Hearing Before the Subcommittee, and the ...

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