Couret-Rios v. Fire & Police Emp. Ret. Sys. ( 2020 )

Carlos Couret-Rios v. Fire & Police Employees’ Retirement System of the City of
Baltimore, No. 36, September Term, 2019. Opinion by Getty, J.
LOCAL CODES—DISABILITY RETIREMENT SYSTEMS
Under the Baltimore City Fire and Police Employees’ Retirement System compensation
statute, Balt. City Code, Art. 22, §§ 29–49, qualified employees are potentially eligible for
two different levels of disability benefits: a less substantial non-line-of-duty (“NLOD”)
level of benefits; or a more substantial line-of-duty (“LOD”) level of benefits. Qualified
employees are only eligible for LOD benefits if their disability stems from an injury that
occurred in the line of duty and the injury caused a permanent “physical incapacity.” In
contrast, qualified employees are eligible for NLOD benefits if the injury caused a
permanent “mental[] or physical[] incapacit[y]” that prevents the employee from
performing their job duties, whether or not the injury occurred in the line of duty.
The Court of Appeals held that, for the purposes of the Baltimore City Fire and Police
Employees’ Retirement System compensation statute, a “physical incapacity” may include,
in certain circumstances, manifestations of a “physical incapacity” that are caused by a
physical injury to the brain. Petitioner, a qualified employee, was entitled to LOD
retirement benefits where he suffered a concussion in the course of his duties, and as a
result of the brain injury, he suffered permanently disabling memory loss and attention
deficits.
Circuit Court for Baltimore City
Case No. 24-C-17-004254
Argued: December 10, 2019
IN THE COURT OF APPEALS
OF MARYLAND
No. 36
September Term, 2019
CARLOS COURET-RIOS
v.
FIRE & POLICE EMPLOYEES’
RETIREMENT SYSTEM OF THE CITY
OF BALTIMORE
Barbera, C.J.
McDonald,
Watts,
Hotten,
Getty,
Booth,
Adkins, Sally D.,
(Senior Judge, Specially Assigned)
JJ.
Opinion by Getty, J.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2020-09-09 11:44-04:00
Filed: May 1, 2020
Suzanne C. Johnson, Clerk
Under the Fire and Police Employees’ Retirement System (the “F&P Retirement
System” or “F&P”) compensation statute, police officers are potentially eligible for two
different levels of disability benefits: a less substantial non-line-of-duty (“NLOD”) level
of benefits; or a more substantial line-of-duty (“LOD”) level of benefits. See Balt. City
Code, Art. 22, § 34. Officers are only eligible for LOD benefits if their disability stems
from an injury that occurred in the line of duty and the injury caused a permanent “physical
incapacity.” See id. §§ 33(l)(4)(iii); 33(l)(11)(ii)(A). In contrast, officers are eligible for
NLOD benefits if the injury caused a permanent “mental[] or physical[] incapacit[y]” that
prevents the officer from performing their job duties, whether or not the injury occurred in
the line of duty. See id. §§ 34(c)(1) (emphasis added). In other words, benefits for NLOD
disability may be awarded on the basis of a mental or physical incapacity, but benefits for
LOD disability can only be awarded based on a physical incapacity.
Petitioner Carlos Couret-Rios suffered a concussion in the course of his duties as a
Baltimore City police officer. As a result of the brain injury, Officer Couret-Rios suffers
from memory loss and attention deficits. Officer Couret-Rios filed for and was granted
LOD disability benefits after a hearing examiner concluded that Officer Couret-Rios was
permanently physically incapacitated. The Circuit Court for Baltimore City affirmed, but
the Court of Special Appeals reversed, holding that Officer Couret-Rios’s incapacities were
mental, rather than physical.
We must now determine if the hearing examiner erred when she awarded LOD
disability benefits based on a finding of fact that Officer Couret-Rios suffered from
memory loss and attention deficits as a result of a mild traumatic brain injury. For the
reasons that follow, we disagree with the Court of Special Appeals and hold that the hearing
examiner did not err in granting LOD retirement benefits.
BACKGROUND
A. The F&P Retirement Compensation Statute.
The F&P Retirement System is a benefit system statutorily established to provide
retirement allowances and death benefits to firefighters and police officers (“Members”)
paid by the Mayor & City Council of Baltimore (the “City”). See Balt. City Code, Art. 22,
§§ 29–49. The F&P statute prescribes contributions from the Members and the City to
fund the Retirement System, which is managed by a Board of Trustees that has a fiduciary
duty to act in the best interests of the Members. Through the rules established by the statute
and the procedures established by the Board of Trustees, the Retirement System pursues
the goals of providing life-long benefits to retired and disabled Members and ensures that
the System remains solvent so that each Member can draw benefits when needed.
The statute establishes two different levels of disability benefits for the Members of
the F&P Retirement System: a less substantial NLOD level of benefits; and a more
substantial LOD level of benefits. See Balt. City Code, Art. 22, § 34. Members are only
eligible for LOD benefits if their disability stems from an injury that occurred in the line
of duty and the injury caused a permanent “physical incapacity.” See id. §§ 33(l)(4)(iii);
33(l)(11)(ii)(A). In contrast, Members are eligible for NLOD benefits if the injury caused
a permanent “mental[] or physical[] incapacit[y]” that prevents the Member from
performing their job duties, whether or not the injury occurred in the line of duty. See id.
§§ 34(c)(1) (emphasis added). In other words, benefits for NLOD disability may be
2
awarded on the basis of a mental or physical incapacity, but benefits for LOD disability
can only be awarded based on a physical incapacity. See Bd. of Trs. of Fire & Police
Emps.’ Ret. Sys. of Balt. v. Kielczewski, 77 Md. App. 581, 591–93 (1989).
The dispute in this case is not whether Officer Couret-Rios should receive disability
retirement benefits but how substantial those benefits are allowed to be under the F&P
retirement compensation statute. To demonstrate the benefit dichotomy, we begin with the
language of the statute. The first pertinent portion of the statute is § 33(l):
(l) Panel of hearing examiners.
(1) There is a panel of hearing examiners, composed of persons with
a demonstrated knowledge and competence in disability claims
evaluation. . . .
***
(4) (i) Any non-line-of-duty disability or line-of-duty disability
claimant must apply to the Board of Trustees.
(ii) The application must include a medical certification of
disability and all supporting medical documentation, on a form
prescribed by the Board of Trustees, in which the member must
state that she or he has suffered a disability and that the
disability prevents her or him from further performance of the
duties of her or his job classification.
(iii) If the claim is for a line-of-duty disability benefit, the
member must also state that the physical incapacity was the
result of an injury arising out of and in the course of the actual
performance of her or his duty, without willful negligence on
her or his part.
(iv) Any member who has joined this system on or after July
1, 1979, and who applies for a line-of-duty disability benefit
must also state that the disability resulted from an injury that
occurred within 5 years of the date of her or his application.
***
(7) A hearing examiner shall conduct hearings on all matters
involving non-line-of-duty disability claims, line-of-duty disability
claims, . . . and any related matters arising out of these claims. . . .
3
***
(10) (i) At the hearing, the member has the burden of proving, by a
preponderance of the evidence:
(A) the nature and extent of his or her disability; and
(B) that the disability prevents him or her from the
further performance of the duties of his or her job
classification.
(ii) If the matter involves a line-of-duty disability claim, the
member has the burden of proving by a preponderance of the
evidence that the disability was the result of an injury arising
out of and in the course of the actual performance of duty,
without willful negligence on the member’s part.
***
(11) The hearing examiner shall determine the following:
(i) whether the member has suffered an injury or illness of such
a nature as to preclude the member from the further
performance of the duties of his or her job classification;
(ii) if the claim is for line-of-duty disability benefits:
(A) whether the physical incapacity is the result of an
injury arising out of and in the course of the actual
performance of duty, without willful negligence on the
member’s part;
(B) whether the disability qualifies under § 34(e) . . . .
(C) for a member who joined this system on or after July
1, 1979, whether the disability resulted from an injury
that occurred within 5 years before the date of the
members’ application . . . .
***
(12) The hearing examiner shall issue written findings of fact that set
forth the reasons for the hearing examiner’s determination. If either
party to the hearing is aggrieved by the hearing examiner’s
determination, that party may seek judicial review of the
determination by the Circuit Court for Baltimore City. The review
shall be sought and heard as provided for in the Maryland Rules, with
the exception that the review shall be heard on the record only, on a
right-of-way basis. The final determination of the hearing examiner is
presumptively correct and may not be disturbed on review except
when arbitrary, illegal, capricious, or discriminatory. A party to the
4
judicial review may appeal the court’s final judgment to the Court of
Special Appeals in accordance with the Maryland Rules of Procedure.
In large part, § 33(l) provides the procedures for administrative hearings. At the
outset, disability claimants must apply to the Board of Trustees. Id. § 33(l)(4)(i). The
application must include: (1) medical certification of disability and all supporting medical
documentation, stating, among other things, that the disability prevents the claimant from
further performance of their duties; and (2) for LOD claims, a statement that (i) “the
physical incapacity was the result of an injury arising out of and in the course of the actual
performance of her or his duty, without willful negligence on her or his part”; and (ii) “the
disability resulted from an injury that occurred within 5 years of the date of her or his
application.” Id. § 33(l)(4)(ii)–(iv) (emphasis added).
On receipt of an application, the claimant must be medically examined by a
physician selected by the Board of Trustees. Id. § 33(l)(5). A panel of hearing examiners
then schedule a hearing during which one of the hearing examiners conducts an informal
hearing (i.e., without strict compliance of the rules of evidence) that includes testimony
and the production of documents. Id. § 33(l)(6)–(8). Despite the informality, the hearings
are adversarial—the City Solicitor’s office represents the Board of Trustees and the
claimant has the right to counsel. Id. § 33(l)(9).
At the hearing, the claimant has the burden of proving, by a preponderance of the
evidence: (1) “the nature and extent of his or her disability”; and (2) “that the disability
prevents him or her from the further performance of the duties of his or her job
classification.” Id. § 33(l)(10)(i). For LOD claims, the claimant must also prove “by a
5
preponderance of the evidence that the disability was the result of an injury arising out of
and in the course of the actual performance of duty, without willful negligence on the
[claimant’s] part.” Id. § 33(l)(10)(ii).
The hearing examiner must then determine “whether the [claimant] has suffered an
injury or illness of such a nature as to preclude the [claimant] from the further performance
of the duties of his or her job classification”; and if the claim is for LOD benefits, whether
(1) “the physical incapacity” is the result of a line-of-duty injury, “without willful
negligence on the [claimant’s] part”; (2) “the disability qualifies under § 34(e)”; and (3)
“the disability resulted from an injury that occurred within 5 years before the date of the
[claimant’s] application.” Id. § 33(l)(11)(i)–(ii). The hearing examiner must then “issue
written findings of fact that set forth the reasons for the hearing examiner’s
determination.”1 Id. § 33(l)(12).
Section 34(c) and (e-1), the more substantive provisions, largely serve to define the
eligibility and benefits of both NLOD and LOD disability retirement:
(c) Non-line-of-duty disability retirement benefit.
(1) Eligibility requirements. A member shall be retired on a non-line-
of-duty disability retirement if:
(i) the member has acquired at least 5 years of service, as
determined by the Board of Trustees; and
1
Section 33(l) also defines the appellate rights of the claimant and the City—namely, either
party may seek judicial review by the Circuit Court for Baltimore City and then may appeal
that judgment to the Court of Special Appeals. Balt. City Code, Art. 22, § 33(l)(12).
However, “[i]f neither party seeks judicial review within 30 days following the mailing of
the hearing examiner’s written findings of fact, the hearing examiner’s determination is
final and binding, subject to the panel of hearing examiners’ right to reexamination.” Id.
§ 33(l)(14).
6
(ii) a hearing examiner determines that:
(A) the member is mentally or physically incapacitated
for the further performance of the duties of the
member’s job classification in the employ of Baltimore
City; and
(B) the incapacity is likely to be permanent.
***
(e-1) Line-of-duty disability benefits.
(1) A member shall be retired on a line-of-duty disability retirement
if:
(i) a hearing examiner determines that the member is totally
and permanently incapacitated for the further performance of
the duties of his or her job classification in the employ of
Baltimore City, as the result of an injury arising out of and in
the course of the actual performance of duty, without willful
negligence on his or her part; and
(ii) for any employee who became a member on or after July
1, 1979, the application for line-of-duty disability benefits is
filed within 5 years of the date of the member’s injury.
Section 34 also provides detailed allowances for each type of disability retirement.
The details are not pertinent, but in sum, LOD allowances are significantly more substantial
than NLOD allowances. Compare id. § 34(e-2), with id. § 34(d). To be eligible for NLOD
disability retirement benefits, a claimant must have acquired at least five years of service
and a hearing examiner must determine that (1) “the [claimant] is mentally or physically
incapacitated for the further performance” of their job; and (2) “the incapacity is likely to
be permanent.” Id. § 34(c)(1) (emphasis added).
Assuming that the application for LOD benefits is filed within five years of the date
of injury, a claimant is eligible for LOD disability retirement benefits if a hearing examiner
determines that the claimant is (1) “totally and permanently incapacitated for the further
7
performance” of his or her job; (2) “as the result of an injury” in the line of duty; (3)
“without willful negligence on his or her part.” Id. § 34(e-1)(1).
Despite some inconsistent and duplicative language across two long provisions, the
statute, on its face, provides for two separate types of disability retirement benefits, as made
clear by the Court of Special Appeals in Board of Trustees of Fire & Police Employees’
Retirement System of the City of Baltimore v. Kielczewski, 77 Md. App. 581 (1989). In
Kielczewski, the intermediate appellate court held that “the disability retirement benefit
scheme contemplates the allegation and proof of a physical incapacitation as a prerequisite
to the award of [LOD] disability retirement benefits.” Id. at 592–93. The court based its
holding on the statutory language of §§ 33 and 34:2
It is evident that the purpose underlying these sections is the
enumeration of the substantive requirements of the two disability retirement
benefits options available to an employee and to set out the procedures
whereby that employee’s entitlement to one or the other is to be determined.
Section 34(c) and (e[-1]) prescribe the requirements of the disability which
qualifies an employee for either [a NLOD] or [LOD] disability retirement.
They do so in terms of the level of disability, i.e., that the employee must be
“incapacitated.” Only § 34(c) additionally prescribes the nature of the
disability, i.e., that it may be mental or physical. . . .
***
Section 33(l), with its requirements that a [LOD] disability retirement
claimant allege a physical incapacity and that the hearing examiner make
determinations concerning that physical incapacity, must be read together
with § 34(e[-1]), which describes only the level of the disability required for
[LOD] disability retirement benefits and § 34(c), which describes, as to
[NLOD] disability retirement benefits, both the nature and the level of the
disability required. So read, it becomes patent that . . . § 33(l) gives content
2
The relevant provisions of the statute remain substantively the same as they were in 1989
except a nomenclature change from “Special” benefits to “Line-of-Duty” benefits and
“Ordinary” benefits to “Non-Line-of-Duty” benefits.
8
to § 34(e) insofar as the nature of the disability required as a prerequisite to
the award of [LOD] disability retirement benefits is concerned. Construing
these provisions any other way would read these requirements out of § 33(l).
Id. at 591–92.
B. The Accident & Subsequent Injuries.
This case stems from an application for LOD disability benefits filed by Officer
Carlos Couret-Rios after he was injured in an automobile accident that occurred during his
afternoon shift with the Baltimore City Police Department. At the time of the accident,
Officer Couret-Rios was 41 years old and had served as a police officer with the
Department for eight years. The facts of the automobile accident are undisputed.
Officer Couret-Rios was on duty on August 12, 2014 when a vehicle rear-ended the
departmental vehicle in which he was sitting. Officer Couret-Rios briefly lost
consciousness when his head snapped forward and back. He was taken to an emergency
room where he complained of neck pain, blurry vision, nausea, and dizziness. He was
discharged with a diagnosis of a concussion and cervical strain. For all relevant times after
the accident, Officer Couret-Rios was removed from full duty and placed on light duty
status.
Over the next several months, Officer Couret-Rios received treatment for neck and
upper-back pain, headaches, and nausea. He also complained of a tremor in his left hand,
an unsteady gait, a reduction in his rate of cognition, and irritability. The treating
physicians diagnosed Officer Couret-Rios with benign positional vertigo3 and post-
3
“Benign positional vertigo,” which is also known as “benign paroxysmal positional
vertigo,” is “a condition marked by short, recurrent episodes of vertigo and nystagmus
9
concussion syndrome. The physicians also prescribed physical therapy to improve Officer
Couret-Rios’s balance and reduce the problems related to dizziness.
By October 23, 2014, two months after the accident, the officer’s back pain was
resolved as evidenced by the medical records at that time. For the next several months, he
continued treatment with a physical therapist. By the time he was discharged from physical
therapy on January 2, 2015, Officer Couret-Rios had no symptoms of vertigo or dizziness
and suffered from only an occasional mild headache. In fact, his physical condition had
improved to allow his return to a full exercise program.
Officer Couret-Rios first complained of short-term memory loss on December 11,
2014, four months after the initial injury. At a doctor’s appointment on that date, Officer
Couret-Rios recounted that sometime within the last month he was suspended from duty
because he misplaced his service firearm—an error that he attributed to his memory issues.
In connection with his memory issues, Officer Couret-Rios was referred for
neuropsychological testing.
brought about by a change in head position.” Benign Paroxysmal Positional Vertigo,
Merriam-Webster, https://www.merriam-
webster.com/dictionary/benign%20paroxysmal%20positional%20vertigo (last visited
April 30, 2020), archived at https://perma.cc/ZF2M-PEV9. “Vertigo” is “a sensation of
motion in which the individual or the individual’s surroundings seem to whirl dizzily.”
Vertigo, Merriam-Webster, https://www.merriam-webster.com/dictionary/vertigo (last
visited April 30, 2020), archived at https://perma.cc/YZZ8-XZ6L. “Nystagmus” is the
“involuntary usually rapid movement of the eyeballs occurring normally with dizziness
during and after bodily rotation or abnormally following head injury or as a symptom of
disease.” Nystagmus, Merriam-Webster, https://www.merriam-
webster.com/dictionary/nystagmus (last visited April 30, 2020), archived at
https://perma.cc/AP6K-JFLB.
10
After testing, Dr. Melissa Blackwell, a licensed psychologist, prepared a
neurological evaluation report (the “Blackwell Report”). At the time of the Blackwell
Report, on February 5, 2015, Officer Couret-Rios denied any remaining physical
symptoms and noted that he had returned to all physical activities including exercising and
weightlifting every day. Dr. Blackwell determined, however, that Officer Couret-Rios had
developed cognitive symptoms:
In my opinion, and to a reasonable degree of neuropsychological
certainty, Mr. Couret[-Rios] sustained a mild traumatic brain
injury/concussion on August 12, 2014 based upon his reports of head jolting,
possible loss of consciousness, brief post-traumatic amnesia or disruption in
mental status at the time of the injury, and subsequent post-concussive
symptoms. His profile indicates a pattern of select cognitive deficits with
multiple aspects of attention and short-term/working memory most adversely
impacted on testing. These cognitive deficits are, more likely than not, a
function of his continued recovery from the concussion sustained on August
12, 2014. His history of premature birth also cannot be ruled out as a
contributing factor to his neurocognitive weaknesses.
Dr. Blackwell concluded that Officer Couret-Rios’s symptoms were “consistent
with . . . a Mild Neurocognitive Disorder secondary to” a concussion but that he “has
already evidenced significant signs of recovery of both physical and cognitive symptoms,
though the likelihood of further recovery is certainly possible.”
By June 4, 2015, a police department physician determined that it was “highly
unlikely” that Officer Couret-Rios would be able to return to full duty service. Two months
later, on August 28, 2015, Officer Couret-Rios was told by the same physician that he had
“permanent” “limitations which prevent[ed] him from performing all of the essential
functions of a police officer in a safe, reliable, and ongoing manner.”
11
Dr. Walter Kozachuk, a neurologist, examined Officer Couret-Rios on November
3, 2015 and concluded in a written report that the officer had “48% whole person
impairment” including memory, back, and physical endurance impairments, and
headaches.
Officer Couret-Rios timely applied for line-of-duty disability retirement on
February 2, 2016 (the “Application”). On the Application, Officer Couret-Rios checked
boxes stating that he had both a “Physical” and “Mental” incapacity and, on another part
of the application, described the “cause of [his] disability” as “pain to head, neck, back,
including post[-]concussion syndrome and psychological problems.” According to the
Application, Officer Couret-Rios was now incapable of performing “Almost All” of his
principal duties as a law enforcement officer, with the exception being “limited report
writing.” The Application also included a statement from Dr. Kozachuk diagnosing
Officer Couret-Rios with concussion, headaches, dizziness, nausea, ataxia,4 absence spells,
memory loss, and dysphasia.5 Dr. Kozachuk’s statement also included Officer Couret-
Rios’s subjective complaints of neck pain, loss of balance, insomnia, and depression.
Absent from the application was any mention of back pain.
4
“Ataxia” is “an inability to coordinate voluntary muscular movements that is symptomatic
of some central nervous system disorders and injuries and not due to muscle weakness.”
Ataxia, Merriam-Webster, https://www.merriam-webster.com/dictionary/ataxia (last
visited April 30, 2020), archived at https://perma.cc/5SVZ-4WD6.
5
“Dysphasia” is “loss of or deficiency in the power to use or understand language as a
result of injury to or disease of the brain.” Dysphasia, Merriam-Webster,
https://www.merriam-webster.com/dictionary/dysphasia (last visited April 30, 2020),
archived at https://perma.cc/VQN7-NR2B.
12
As part of the disability application process, F&P gathered Officer Couret-Rios’s
pre-injury and post-injury medical records. Officer Couret-Rios was also evaluated by
several medical experts in connection with his disability claim, all of whom produced
written reports. The relevant medical evaluations included:
• Dr. Douglas Shepard, Independent Medical Evaluation, October 11, 2016
• Dr. Michael Sellman, Independent Neurological Evaluation, December 29, 2016
• Dr. Stephen Siebert, Psychiatric Independent Medical Evaluation, March 7, 2017
• Dr. Louis Halikman, Independent Orthopedic Consultation, April 27, 2017
C. The Administrative Hearing & Report.
On June 28, 2017, a hearing examiner held a § 33(l) hearing on Officer Couret-
Rios’s Application for LOD benefits. Officer Couret-Rios argued that his “three main”
disabling complaints were (1) headaches; (2) lower back pain; and (3) “cognitive
neurological issues, memory, those kind of things.” Officer Couret-Rios testified at the
hearing and provided examples of how his neurological issues might affect his performance
as a police officer. In connection with his poor memory, Officer Couret-Rios testified that
he might forget that he confiscated drugs or have problems recalling faces and facts while
testifying against a suspect. He further testified that at one point, he forgot that he had a
daughter and, on several occasions, recognized co-workers but could not recall their names.
With regard to the headaches, Officer Couret-Rios testified that even prior to the
accident he suffered from headaches while working full time and that if the headaches were
his only malady, that he would still be able to perform his job. As to the back pain, Officer
Couret-Rios testified that he would not be able to chase suspects or sit or stand for long
13
periods of time, and worried that a suspect could easily overpower him in a physical
altercation. Officer Couret-Rios testified that the back pain alone incapacitated him so
severely that, if he continued as a police officer, he would “get killed.”
After considering the testimony and over 600 pages of medical records, the hearing
examiner issued a written report including her factual findings and legal conclusions. The
report included summaries of the testimony, the written medical records, and the “EXPERT
EVALUATIONS.”
In the “EXPERT EVALUATIONS” section, the hearing examiner summarized the
expert reports provided by both parties. Officer Couret-Rios’s experts included Dr.
Kozachuk, a neurologist, and Dr. Shepard, an orthopedist. Dr. Kozachuk’s report mirrored
his statement in the Application that provided a disability rating of 48% temporary total
disability and ratings of anatomical loss to speech, neck, back, and central nervous system.
Dr. Shepard reported anatomical loss ratings as to orthopedic issues: 12% impairment to
thoracic spine, 22% impairment to lumbar spine, and 15% left hip. Dr. Shepard also
referred to a report by orthopedic spine surgeon Dr. Chad Rutter.6 According to Dr.
Shepard, Dr. Rutter diagnosed Officer Couret-Rios with lumbar disk disorder and
radiculopathy. Dr. Rutter reviewed a magnetic resonance imaging (“MRI”) scan taken on
February 29, 2016 and opined that Officer Couret-Rios had “L4-L5 degenerative disk
disease, small disk bulge and moderate foraminal stenosis.”
6
Dr. Rutter’s report is not present in the record.
14
F&P submitted reports from Dr. Sellman, Dr. Siebert, and Dr. Halikman. Dr.
Sellman, a neurologist, concluded that the original injury to the head was mild. He stated
he could not relate the constellation of symptoms to the motor vehicle accident. Although
he determined that Officer Couret-Rios was permanently and totally disabled, he did not
believe that Officer Couret-Rios sustained an incapacitating neurological injury in the
accident.
Dr. Siebert provided a diagnosis of mild neurocognitive disorder due to concussion
but stated that Officer Couret-Rios’s prognosis was “guarded” due to multiple preexisting
medical problems including diabetes and hypertension. Dr. Siebert concluded that Officer
Couret-Rios’s cognitive difficulties were disabling but that such difficulties were related
to both preexisting medical conditions and the injuries caused by the automobile accident.
Dr. Halikman, an orthopedic surgeon, examined Officer Couret-Rios in relation to
his complaints of lower back pain. In his report, Dr. Halikman concluded,
[i]t is my impression that this patient does not have objective evidence of
disability due to a low back injury. At the time of the accident in 2014 his
primary orthopaedic complaint involved neck pain. Back pain developed
afterwards and there was significant improvement with ordinary physical
therapy and conventional treatment. On an objective basis today, lumbar
spine function appears satisfactory. . . .
It is my opinion, therefore, that from an orthopaedic point of view,
disability retirement is not established.
The hearing examiner next outlined the controlling law whereby she cited
Kielczewski, 77 Md. App. at 581, for the proposition that “[b]enefits for NLOD disability
may be awarded on the basis of a mental or physical incapacity[, but b]enefits for LOD
disability can only be awarded based on a physical incapacity.” The hearing examiner then
15
announced her factual findings and legal conclusions in a section titled “DECISION.” The
hearing examiner was unpersuaded that Officer Couret-Rios had suffered a disabling
orthopedic injury in the automobile accident. Relying especially on Dr. Halikman’s expert
report, the hearing examiner had “trouble finding that [Officer Couret-Rios] is disabled due
to a back condition related to” the accident. The hearing examiner concluded that “[t]he
records indicate any back problem related to the initial injury [are] resolved. The current
back problems come much later and per the [February 29, 2016] MRI, the back problems
are degenerative.”
The hearing examiner, however, found that Officer Couret-Rios was permanently
disabled because of “problems relating to attention and memory.” Placing particular
emphasis on the Blackwell Report, the hearing examiner specifically found that Officer
Couret-Rios was “permanently incapacitated from his regular job duties as the result of an
injury to his brain” that occurred “while he was in the performance of his duties.” Based
on that finding, the hearing examiner concluded that Officer Couret-Rios had met the
criteria for LOD disability benefits—i.e., that he was physically incapacitated.
On judicial review, the Circuit Court for Baltimore City affirmed the hearing
examiner’s decision. F&P appealed to the Court of Special Appeals.
D. The Court of Special Appeals.
The Court of Special Appeals reversed in a rare 1-1-1 fractured decision, Judge
Kevin F. Arthur for the majority, Judge Timothy E. Meredith concurring, and Judge Andrea
M. Leahy dissenting. See Fire & Police Emps.’ Ret. Sys. of Balt. v. Couret-Rios, No.
02493, Sept. Term, 2017, 2019 WL 1934004 (Md. Ct. Spec. App. Apr. 30, 2019). The
16
controlling opinion concluded that Officer Couret-Rios’s “incapacitation is mental, rather
than physical, as those terms are commonly understood” and thus held that the hearing
examiner erred in concluding that Officer Couret-Rios was entitled to LOD benefits. Id.
at *5. According to the Court of Special Appeals, the clear and unambiguous meaning of
“physical incapacity” as used in the statute is “the quality or state of being incapable of
doing something with the body,” as opposed to “with the mind,” that the attention and
memory deficits disabling Officer Couret-Rios were mental incapacity, and that the hearing
examiner’s decision allowing him LOD benefits was legal error. Id. at *4. The majority
opinion began its analysis with the common understanding and dictionary definitions of
the words “incapacity,” “physical,” and “mental,” and then confirmed the plain meaning
by applying those definitions to the statutory scheme. The majority also highlighted the
distinction between physical and mental incapacity, as described in Kielczewski. Further,
the majority rejected the hearing examiner’s attempt to conflate the mental nature of the
incapacity itself (i.e., attention and memory deficits) with the physical nature of the injury
(i.e., concussion/mild traumatic brain injury) that caused the incapacity, by noting that this
Court “declined to equate the terms [in Marsheck v. Board of Trustees of Fire Police
Employees’ Retirement System of the City of Baltimore, 358 Md. 393 (2000)], because its
review of the statutory structure established that the City Council had ‘made distinction in
meaning between the terms “injury” and “disability” or “incapacity.””” Couret-Rios, 2019
WL 1934004, at *5 (quoting Marsheck, 358 Md. at 408). The majority concluded that
“[a]n employee’s entitlement to [LOD] benefits depends on whether the incapacitation is
17
physical or mental in nature, not on whether he or she suffered physical injury.” Id.
(emphasis added).
Judge Meredith concurred with the result but noted that, had there been no
controlling precedent, he would agree with the dissent because “the distinction between
physical incapacity and mental incapacity seems arbitrary in the context of a traumatic line-
of-duty injury to a police officer’s brain.” Id. at *6 (Meredith, J., concurring).
Judge Leahy dissented, reiterating the arbitrary distinction between physical and
mental incapacity and distinguishing Marsheck, the case relied upon by the majority. Id.
at *6–7 (Leahy, J., dissenting). According to the dissent, “the statute was [not] intended to
deny line-of-duty benefits to an officer who is incapacitated by a traumatic brain injury
suffered while performing his job” and Marsheck does not “forbid[] consideration of the
nexus between an injury and a consequent incapacitation.” Id. at *6. The dissent, therefore,
would have affirmed the decision of the hearing examiner because “there is a direct nexus
between the physical injury to the brain and the disabling mental impairment suffered by
Officer Couret-Rios.” Id. at *7.
Officer Couret-Rios filed a petition for writ of certiorari which this Court granted.
Couret-Rios v. Fire & Police Emps.’ Ret. Sys. of Balt., 465 Md. 663 (2019). He presents
one question for our review:
Did the hearing examiner commit an error of law when she awarded line-of-
duty disability benefits based on a finding of fact that [Officer Couret-Rios]
suffered from attention and memory deficits as a result of a traumatic brain
injury sustained while performing his job?
18
For the reasons that follow, we answer in the negative. After finding that memory
and attention deficits were Officer Couret-Rios’s only incapacities, the hearing examiner
did not err by concluding that those incapacities were physical and thus granting LOD
benefits. As such, we reverse the judgment of the Court of Special Appeals.
STANDARD OF REVIEW
Under Article 22, Section 33(l)(1), of the Baltimore City Code, F&P hearing
examiners are selected on the basis of “demonstrated knowledge and competence in
disability claims evaluation.” In addition, under § 33(l)(12), the determination of the
hearing examiner is “presumptively correct” and “may not be disturbed on review except
when arbitrary, illegal, capricious, or discriminatory.”
Due to the expertise of the hearing examiners, in reviewing administrative decisions
this Court “must not itself make independent findings of fact or substitute its judgment for
that of the agency.” Md.-Nat’l Capital Park Planning Comm’n v. Anderson, 395 Md. 172,
180–81 (2006) (quoting Balt. Lutheran High Sch. Ass’n, Inc. v. Emp’t Sec. Admin., 302
Md. 649, 662 (1985)). “Of course, a reviewing court may always determine whether the
administrative agency made an error of law.” Balt. Lutheran High Sch. Ass’n, 302 Md. at
662; see also Hubbel v. Bd. of Trs. of Fire & Police Emps.’ Ret. Sys. of Balt., 192 Md. App.
742, 749 (2010) (noting that appellate courts “can reverse the agency’s legal decisions
‘where the legal conclusions reached by that body are based on an erroneous interpretation
or application’” of the relevant law (quoting Overlook LLLP v. Bd. of Cty. Comm’rs of
Wash. Cty., 183 Md. App. 233, 247–48 (2008))).
19
The issue in this case is governed by the language of Article 22, §§ 33(l), 34(c) and
34(e-1) of the Baltimore City Code. “When we construe a statute, we search for legislative
intent.” Bell v. Chance, 460 Md. 28, 53 (2018) (citing Hughes v. Moyer, 452 Md. 77, 94
(2017)). If the language is “unambiguous and its meaning is plain and definite,” this
Court’s “inquiry as to the legislature’s intent will end and [we] will not venture outside the
words of the statute.” Marsheck, 358 Md. at 402–03. “If the statute’s language is
ambiguous, however, we will look towards other sources, such as relevant case law and
legislative history, to aid us in determining the legislature’s intentions.” Id. at 403.
“Throughout this process, we avoid constructions that are illogical or nonsensical, or that
render a statute meaningless.” Bell, 460 Md. at 53 (citing Fisher v. E. Corr. Inst., 425 Md.
699, 706 (2012); Frost v. State, 336 Md. 125, 137 (1994)).
“Remedial legislation, such as governs the retirement system here, must be
construed liberally in favor of injured employees in order to effectuate the legislation’s
remedial purpose.” Marsheck, 358 Md. at 403; see, e.g, Martin v. Beverage Capital Corp.,
353 Md. 388, 400 (1999) (“[The] statute should be liberally construed so that any
ambiguity, uncertainty or conflict is resolved in favor of the claimant, in order to effect the
statute’s benevolent purposes.” (quoting Linder Crane Serv. Co. v. Hogan, 86 Md. App.
438, 443 (1991))); Montgomery Cty. v. McDonald, 317 Md. 466, 472 (1989)
(“Undoubtedly the [statute] is to be construed liberally in favor of injured employees and
to effectuate its remedial purposes . . . .”).
20
DISCUSSION
The principal issue before the Court is whether a mild traumatic brain injury that
caused attention and memory issues fits the “physical incapacity” classification of the F&P
statute, and therefore whether Officer Couret-Rios will be granted LOD, as opposed to
NLOD, benefits. Advocating for LOD benefits, Officer Couret-Rios puts forth one primary
argument: that memory and attention deficits are “physical incapacities” because they are
manifestations of a physical injury to his brain.7 We agree. The “physical incapacity”
classification is ambiguous and open to multiple interpretations, including the
interpretation that, in certain circumstances, a physical injury to the brain that causes post-
7
Officer Couret-Rios initially argues that we need not reach the legal issue of how to define
“physical incapacity” because the hearing examiner “implied” physical incapacity in her
findings. Officer Couret-Rios makes this argument for the first time before this Court.
Officer Couret-Rios admits that the hearing examiner “only explicitly noted that [Officer
Couret-Rios] suffered from attention and memory deficits,” but argues that the hearing
examiner implicitly found that Officer Couret-Rios had every symptom and incapacity
mentioned in the Blackwell Report simply because the hearing examiner found the
Blackwell Report “especially persuasive” to her final determination. The hearing
examiner’s decision, as it related to the Blackwell Report, stated in full:
I find the Claimant is disabled due to problems relating to attention and
memory. I base this decision on my review of the records, and find the
[Blackwell Report] to be especially persuasive. Despite giving strong effort
during the testing done [by Dr. Blackwell], the Claimant demonstrated
difficulty with working memory, attention, and impulsivity at 6 months post-
accident, when most improvement from mild [traumatic brain
injury]/concussion is expected within 3 to 4 months post injury.
Our reading of the hearing examiner’s report does not support Officer Couret-Rios’s
argument. By finding the Blackwell Report “especially persuasive,” the hearing examiner
was not implicitly adopting the entirety of the Blackwell Report. Rather, she was setting
forth her reasons, as required by § 33(l)(12), for her finding of memory and attention
incapacity.
21
concussion syndrome is a “physical incapacity.” We begin with the plain meaning of the
statute.
A. Plain Meaning Analysis.
To determine plain meaning, F&P and the Court of Special Appeals start with the
dictionary definition of “incapacity” and “physical.”8 According to Merriam-Webster,
“incapacity” means “the quality or state of being incapable.” Incapacity, Merriam-
Webster, https://www.merriam-webster.com/dictionary/incapacity (last visited Apr. 9,
2020), archived at https://perma.cc/J6JX-484J. “Physical incapacity,” the Court of Special
Appeals concluded, is therefore the quality or state of being incapable of doing something
physical, while “mental incapacity” is the quality or state of being incapable of doing
something mental. F&P argues that neither Officer Couret-Rios nor the dissenting judge
below point to any ambiguity in those definitions, therefore the statutory analysis should
end there. See Marsheck, 358 Md. at 402–03 (“[I]f the language of the statute is
unambiguous and its meaning is plain and definite, our inquiry as to the legislature’s intent
will end and we will not venture outside the words of the statute.”). In addition, F&P
8
“To determine the ordinary meaning of those words, we find it helpful to consult their
dictionary definitions.” Neal v. Balt. City Bd. of Sch. Comm’rs, 467 Md. 399, 417 n.10
(2020) (quoting Bd. of Educ. of Prince George’s Cty. v. Marks-Sloan, 428 Md. 1, 28
(2012)); see Marriott Emps. Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 447
(1997) (“Although dictionary definitions do not provide dispositive resolutions of the
meaning of statutory terms, dictionaries do provide a useful starting point for determining
what statutory terms mean, at least in the abstract, by suggesting what the legislature could
have meant by using particular terms.” (internal citations and original omission omitted)).
22
asserts that Officer Couret-Rios is entitled only to NLOD benefits because attention deficit
and memory issues are “mental incapacities.”
To the contrary, the very premise of this appeal points to an ambiguity in the F&P
statute—the language of the statute is ambiguous as to whether a “physical incapacity”
includes post-concussion manifestations. As F&P concedes, “the brain is our most
complex organ and the mind is an endless mystery.” Indeed, the distinction between
“physical capacity” and “mental capacity” appears to invoke the “mind-body problem” that
has dogged philosophers for centuries. But we do not have to solve the mind-body problem
to decide this case.
Instead, the statute requires deference to the expertise of the hearing examiner. In
her decision, the hearing examiner described at length the Blackwell Report that related
Officer Couret-Rios’s cognitive deficits to the mild traumatic brain injury that he suffered
on August 12, 2014. It is safe to say that these deficits have a source in a physical
incapacity in the part of the brain that governs short term memory. This sort of incapacity
is distinguishable from a mental incapacity that is less easy to attribute to a physical
source—for example, if he had developed a debilitating fear of riding in a police car as a
result of the accident.
Judge Leahy, dissenting below, put it this way:
[A] traumatic brain injury impairs the mind, just as injury to the eye impairs
vision, and injury to the ear drum impairs hearing. Each of these capacities
do not have observable physical qualities, yet impairments to one’s sight,
hearing, and cognition can be physically incapacitating. (Of course, not every
brain injury results in a mental incapacity, just as injury to another organ or
limb may not result in an incapacity.)
23
Couret-Rios, 2019 WL 1934004, at *6 (Leahy, J., dissenting).
It is unreasonable to conclude that the City Council enacted the physical-mental
distinction to diminish the retirement benefits of police officers and fire fighters simply
because an incapacity is related to the brain. Indeed, it would seem contrary to the remedial
nature of the statute to de facto punish an officer for such an injury, which can often be
more physically debilitating than other clear-cut “physical” incapacities.
As F&P points out, the mental-physical distinction derives from the nature of
retirement systems. The benefit distinctions do not “absolve employers of liability for
brain injuries,” as the dissent below argues, but rather lessen the payout from the retirement
system. See id. at *7 (Leahy, J., dissenting). Unlike a workers’ compensation statute that
is focused on legal liability, the F&P statute is a retirement benefits system funded by the
very members who are entitled to benefit from it. Like a statute of limitations, the
distinction sets a bright line that, according to F&P, reduces the cost of fraud and increases
confidence in causation within the system. F&P notes that “[m]ental incapacities are just
as real, and sometimes more debilitating, than physical incapacities, but because the brain
is our most complex organ and the mind is an endless mystery, from the perspective of a
retirement benefit system trying to maximize the Members’ collective benefits, mental
incapacities are more challenging to verify in terms of existence and in terms of causation.”
Symptoms of post-concussion syndrome, including memory and attention deficits,
unlike a fear of riding in a police car, are not “challenging to verify in terms of existence
24
and in terms of causation.”9 The record makes clear, and the hearing examiner concluded,
that Officer Couret-Rios is suffering from these maladies as a result of the automobile
accident on August 12, 2014.
We therefore conclude that the term “physical incapacity” is ambiguous in the
context of the F&P statute. To divine legislative intent, then, we next turn to the case law.
B. Applying the Case Law.
In Kielczewski, a firefighter lost vision in one eye while fighting a fire, and as a
result, his “emotional and mental state deteriorated.”10 77 Md. App. at 583. Both parties
agreed that the firefighter was able to physically perform his duties, but that his
psychological problems rendered him mentally incapacitated. The Court of Special
Appeals held that the firefighter was eligible only for NLOD benefits because a physical
incapacity is a “condition precedent” to an award of LOD benefits. Id. at 592.
Here, neither party argues that a physical incapacity is a “condition precedent” to
an award of LOD benefits. But we see a material difference between a physical injury to
the eyeball leading to a mental incapacity, like in Kielczewski, and a physical injury to the
brain leading to post-concussion syndrome and attention and memory deficits. The
incapacity suffered by the claimant in Kielczewski represents the type of incapacity that is
“more challenging” to attribute to a physical source, namely a “mental” incapacity that is
9
Although as indicated infra notes 12–15, there are challenges with proper treatment and
continuing diagnoses.
10
The court did not elaborate on the firefighter’s emotional and mental maladies.
25
not a direct objective manifestation of a physical incapacity. See Couret-Rios, 2019 WL
1934004, at *7 (Leahy, J., dissenting) (“A physical injury to part of the body other than the
brain, as in [Kielczewski], would not carry the same nexus to any resulting mental
incapacity.”).
That being the case, we are careful to distinguish between “incapacity” and “injury”
in the context of the F&P statute. This Court, in Marsheck, addressed that distinction in a
statute of limitations case. 358 Md. at 393. There, a police officer suffered a back injury
that was not immediately disabling, but eventually left her physically incapacitated. The
police officer submitted her application for LOD benefits within five years of becoming
incapacitated but not within five years of the injury that caused the incapacitation, as
required by the F&P statute. She was therefore granted only NLOD benefits. She urged
this Court to conflate the meanings of “injury” and “incapacity” in order to receive the
more substantial LOD benefits. The Court disagreed with the police officer and held that
“injury” and “incapacity” are distinct words for the purposes of the F&P statute. The Court
noted that such a bright line limitation—i.e., running a five-year application deadline from
the date of injury—should not be disturbed by the judiciary where the Baltimore City
Council enacted such a plain rule.
F&P argues, and the Court of Special Appeals held, that because Marsheck
distinguished “injury” from “incapacitation,” the hearing examiner erred in conflating the
“physical” nature of the injury—a concussion—with the “mental” nature of the
incapacity—memory and attention deficits. Officer Couret-Rios argues that Marsheck is
distinguishable. He contends that, although “the Marsheck Court distinguished the terms
26
‘injury’ and ‘incapacitation’ for the purpose of applying the statute’s time limitation,” the
holding in Marsheck does not “forbid[] consideration of the nexus between an injury and
a consequent incapacitation.” Couret-Rios, 2019 WL 1934004, at *6 (Leahy, J.,
dissenting). We agree that both the context—a statute of limitations case—and the
justification for that context, are dissimilar from the case at hand. See Marsheck, 358 Md.
at 401–02 (explaining that the statute’s time limitation served to “1) protect against
frivolous claims; and 2) supply the relatively greater certitude of objectively verifiable
dates and events in lieu of potentially difficult questions of proof and causation that may
be presented otherwise”).
We also agree that Marsheck is distinct from this case. As we reiterated above, if
there is ambiguity or doubt as to how the statute should be interpreted, the canons of
statutory construction prefer a liberal interpretation of remedial legislation such as the F&P
statute. In Marsheck, the Court did not apply that principle because the issue there was a
clear-cut statute of limitations, a procedural question to which the principle of liberal
interpretation (even in this context or the context of a workers’ compensation statute) does
not apply. 358 Md. at 403–05. The case before us now does not involve a limitations
issue, but rather whether a claimant qualifies for LOD benefits based on the ambiguous
definition of “physical incapacity”—the heart of the substance of the statute.
As noted, we do not need to solve the “mind-body” problem to resolve this
ambiguity. A look to brain science from the last five years, however, helps clarify our
understanding of the F&P statute because much has developed in that field since Officer
Couret-Rios was injured in the automobile accident in 2014. By applying modern
27
neuroscience to the F&P statute, attention and memory issues that result from physical
injuries to the brain could be identified as “physical incapacities” or “mental incapacities”
depending upon the facts of the case.
Concussions—termed “mild traumatic brain injuries” (“mild TBI”) in the medical
field11—are extremely complex and brain research is rapidly changing on the subject.
Medical professionals agree that there are various levels of TBI, including a wide spectrum
of mild TBI.12 The severity of TBI is typically defined at the time of the initial injury but
11
Indeed, the terms are used interchangeably in the literature and are often treated as
synonymous. Noah K. Kaufman et al., What Attorneys and Factfinders Need to Know
About Mild Traumatic Brain Injuries, 12 Psychol. Inj. & L. 91, 91 (2019) (citing Ronald
M. Ruff et al., Recommendations for Diagnosing a Mild Traumatic Brain Injury: A
National Academy of Neuropsychology Education Paper, 24 Archives Clinical
Neuropsychol. 3, 3–10 (2009)); see Betsy J. Grey & Gary E. Marchant, Biomarkers,
Concussions, and the Duty of Care, 2015 Mich. St. L. Rev. 1911, 1911 n.1, 1922 n.63
(2015) (citing Kimberly G. Harmon et al., American Medical Society for Sports Medicine
Position Statement: Concussion in Sport, 47 Brit. J. Sports. Med. 15, 16–17 (2013))
(“[M]ost lay people, policymakers, athletes, and coaches use the term ‘concussion’ to refer
to a constellation of neurological symptoms, such as dizziness, clouded thinking, and even
unconsciousness, that can result from a head trauma. However, the term concussion is not
a medically precise or defined term. Rather, specialists refer to mild traumatic brain injury,
with the word ‘mild’ distinguishing concussive injuries from more severe brain injuries
resulting from major traumas, such as a bullet, explosion, or car accident that permanently
disfigures the brain.”).
12
Traumatic Brain Injury Information Page, Nat’l Inst. Neurological Disorders & Stroke,
https://www.ninds.nih.gov/Disorders/All-Disorders/Traumatic-Brain-Injury-Information-
Page (last visited Apr. 13, 2020), archived at https://perma.cc/4TAS-YVB9; see Grey &
Marchant, supra note 11, at 1922–23; Kaufman et al., supra note 11, at 92–93; Shauna
Kashluba et al., Neuropsychologic and Functional Outcome After Complicated Mild
Traumatic Brain Injury, 89 Archives Physical Med. & Rehabilitation 904, 904 (2008)
(discussing the Glasgow Coma Scale, a widely used classification metric); Jorge Humberto
Mena, Effect of the Modified Glasgow Coma Scale Score Criteria for Mild Traumatic
Brain Injury on Mortality Prediction, 71 J. Trauma 1185, 1186 (2011).
28
the severity of the injury defined initially does not necessarily predict the trajectory or
natural history of TBI, as individuals diagnosed with mild TBI can experience ongoing
impairment.13 Here, for example, multiple doctors noted that Officer Couret-Rios suffered
more severe symptoms and suffered longer than a typical mild TBI patient would.
The distinction between mild TBI and more severe TBI
although widely accepted, is inexact; TBI is considered a spectrum, and the precise
distinction between the two levels of brain injury lacks consensus in both medicine and
law. . . . There is no agreed-upon definition of m[ild ]TBI or concussion, because there is
no consensus on objective criteria for defining and diagnosing this type of injury. Rather,
m[ild ]TBI currently remains a subjective clinical diagnosis based primarily on patient
history and observable behavioral symptoms. . . . It is not surprising that this spectrum of
symptoms exists, considering the diverse ways in which a brain injury can happen, as well
as the different brain structures that could be affected by the external trauma. . . .
Furthermore, therapy for brain repair is controversial; the type of care the individual should
receive during recuperation is not agreed upon. Some doctors prescribe brain silence (no
reading, no math, no computers), while others say some brain stimulation is therapeutic.
Some researchers suggest that treatment may depend on what part of the brain received the
13
Evaluation of the Disability Determination Process for Traumatic Brain Injury in
Veterans, National Academies of Sciences, Engineering, and Medicine 26, 27, 98 (2019),
https://www.ncbi.nlm.nih.gov/books/NBK542602/pdf/Bookshelf_NBK542602.pdf,
archived at https://perma.cc/B5T8-BBFA; Grey & Marchant, supra note 11, at 1923;
Douglas H. Smith et al., Therapy Development for Diffuse Axonal Injury, 30 J.
Neurotrauma 307, 313 (2013).
On a related but separate note, diagnosis issues can have negative effects in the
disability determination process “because [disability] labels often engender self-fulfilling
prophecies. Patients may be led to believe that they are incapable of getting better; that
they are permanently disabled, and that they lack control over their present and future
status. Further, by virtue of being inappropriately diagnosed, patients may be referred for
expensive and labor-intensive treatment or management services that they either don’t need
or which is downright detrimental to their post-accident recovery.” Kaufman et al., supra
note 11, at 91. Some medical experts have commented that many disability cases would
have different outcomes if the worker had been diagnosed properly. See id. at 102–04
(discussing White v. Guest Servs., Inc., 814 S.E.2d 626 (N.C. Ct. App. 2018); In re
Williams, 409 P.3d 1219 (Wyo. 2018)).
29
trauma. And even harder is determining whether chronic brain damage has occurred (and
its cause) or whether certain individuals might be more susceptible . . . .[14]
Although a mild TBI does not typically result in any permanent physical
incapacities,15 there are scenarios such as Officer Couret-Rios’s where a mild TBI leads to
physical incapacity. Given the inexact nomenclature, diagnoses, and treatment of mild
TBIs, Maryland courts will have to continue to rely on the medical records and findings of
hearing examiners.16 Due to such medical uncertainty, nothing in this Opinion should be
interpreted to mean that every case involving a brain injury qualifies for LOD benefits
under the F&P statute.
Providing the proper deference to the hearing examiner in this case, however,
demands that Officer Couret-Rios is entitled to LOD benefits. The hearing examiner
clearly understood that “physical incapacity” was a prerequisite for LOD benefits, as she
cited Kielczewski for that proposition in her decision. The hearing examiner then relied on
14
Grey & Marchant, supra note 11, at 1923–25.
15
Traumatic Brain Injury Information Page, supra note 12; Grey & Marchant, supra note
11, at 1922–23; Kaufman et al., supra note 11, at 92–93.
16
Although, at least one court has indicated that memory and attention symptoms resulting
from post-concussion syndrome are “physical” symptoms. In Krepps by Krepps v. Ausen,
479 S.E.2d 290 (S.C. Ct. App. 1996), where a minor incurred a closed head injury in an
automobile accident and relatives of the minor sued the drunk driver who caused the
accident, a neurologist testified that closed head injuries often result in post-concussion
syndrome, which is evidenced by physical symptoms such as personality change, drop in
school performance, headache, fatigue, sleep disturbance, mood alteration, irritability, and
memory loss. Like the child in Krepps, Officer Couret-Rios suffered a head injury during
a car accident, experienced memory loss, and was diagnosed with post-concussion
syndrome.
30
the Blackwell Report—a neurological evaluation performed by a licensed psychologist—
to conclude that Officer Couret-Rios was permanently physically incapacitated. We cannot
say, therefore, that the determination of the hearing examiner was “arbitrary, illegal,
capricious, or discriminatory.” Balt. City Code, Art. 22, § 33(l)(12). Nothing about that
conclusion is unreasonable and we refuse to “make independent findings of fact or
substitute [our] judgment for that of the agency.” Anderson, 395 Md. at 180–81 (quoting
Balt. Lutheran High Sch. Ass’n, 302 Md. at 662).
Just as a court cannot change the meaning of a statute, neither can a legislative body
freeze medical understanding of the mind and body to limit “physical incapacity” to the
meaning it may have had in 1966—or at least it cannot without making it quite clear that
that is what it intends to do. Indeed, the fact that the legislative body here used a general
phrase like “physical incapacity” instead of listing every type of eligible incapacity is
evidence that the legislative body did not intend for the statute to be frozen in that way.
There are likely numerous examples of symptoms once labeled a “mental incapacity” that
are now known to be manifestations of a physical incapacity. Through a remedial lens, the
City Council of Baltimore could not have meant to remove all manifestations of a physical
incapacity caused by a brain injury from the definition of “physical incapacity.” We
therefore conclude that the definition of “physical incapacity” includes, in certain
circumstances, manifestations of a physical incapacity caused by a brain injury. Here,
Officer Couret-Rios’s brain was physically injured and incapacitated which manifested in
post-concussion syndrome and memory and attention deficit.
31
There is no doubt that neurological science has made great strides since the F&P
statute was enacted in 1966. While we make no determination as to the contemporary
merits of the policy behind the benefits distinction,17 in consideration of the modern
understanding of concussions and traumatic brain injuries, it may be advisable for the City
Council to revisit the language of the statute.18 See, e.g., In re S.K., 466 Md. at 57–58
(“[I]n light of these policy concerns, such legislation ought to be considered by the
[legislature] in the future.”).
17
Judges Meredith and Leahy below expressed concern over the arbitrary distinction
between physical and mental incapacities and suggested that the statute be amended. In
that vein, Judge Meredith presents the absurd but feasible scenario where
a police officer who is shot in the head but regains full use of all of the
officer’s body parts is denied line-of-duty disability benefits regardless of the
severity of mental incapacity, whereas an officer who is shot in the head and
does not regain full use of the officer’s body parts is entitled to line-of-duty
benefits even if that officer makes a full recovery of mental faculties.
Couret-Rios, 2019 WL 1934004, at *6 (Meredith, J., concurring); see also id. at *6 (Leahy,
J., dissenting) (“Perhaps the statute requires clarifying amendments . . . .”).
18
Similar retirement systems in Maryland do not rely on a distinction between “physical”
and “mental” incapacities. For example, under the Howard County Police and Fire
Employees’ Retirement Plan, whether the claimant receives the less substantial “ordinary
disability” benefits or the more substantial “line of duty disability” benefits, depends only
on whether the “total and permanent disability” was “incurred as a result of an accident or
injury which has been sustained as an active covered individual and which has been ruled
compensable under the Maryland Workers’ Compensation Act.” If so sustained, the
claimant is entitled to “line of duty” benefits. Howard Cty. Code, § 1.431A(a)–(b).
Otherwise, the claimant is entitled to “ordinary disability” benefits. See id. In either case,
“total and permanent disability” is defined as “a medically determinable physical or mental
impairment which can be expected to be permanent or result in death, and by reason of
which the participant will be prevented from performing the usual duties of his or her
position with the County as required by the County Code.” Id. § 1.431A(e)(3)(i).
32
CONCLUSION
We hold that the hearing examiner did not err when she awarded line-of-duty
disability benefits based on a finding of fact that Officer Couret-Rios suffered from
attention and memory deficits as a result of a mild traumatic brain injury. Officer Couret-
Rios is entitled to line-of-duty retirement benefits.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED.
COSTS TO BE PAID BY
RESPONDENT.
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