Providence County Superior Court
Plaintiff: Michael J. Lepizzera Jr., Esq.
Defendant: Michael P. Robinson, Esq. (Defendants).
Goins, Esq.; Michael A. Ursillo, Esq. (Intervenor).
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),  which denied his
application for an accidental disability pension.
Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
Facts and Travel
Borrelli's Work History and Initial Application
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.)
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.)
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.
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.
Id.at 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. (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.)
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. (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.
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,
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.
filed an application for accidental disability retirement
with the Municipal Employee's Retirement System on
September 29, 2011, alleging disabling back
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.)
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.
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."
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.)
The Disability Subcommittee's February 6, 2014
Recommendation and Appeal
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 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.
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.)
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
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.
April 8, 2015 Hearing Before the Board
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.)
Additional IMEs and Third Recommendation
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.
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.
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.
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
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.
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.
Second Appeal, Hearing Before the Subcommittee, and the