Dennis v. Md. State Ret. & Pension Sys.

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MICHAEL J. DENNIS v. MARYLAND STATE RETIREMENT AND PENSION SYSTEM

No. 1346-2022

Court of Special Appeals of Maryland

November 7, 2023

UNREPORTED ^[*]

Circuit Court for Garrett County Case No. C-11-CV-22-000002

Wells C.J., Nazarian, Storm, (Specially Assigned), JJ.

OPINION

Wells C.J. Appellant Michael Dennis reported suffering injuries from two workplace accidents while working at the Garrett County Department of Social Services (GCDSS). After GCDSS determined it could not accommodate Dennis's related request for a reasonable accommodation, Dennis was excused from work and placed on Family Medical Leave Act (FMLA) leave for six months. At the exhaustion of available FMLA leave, GCDSS notified Dennis that because the Insured Workers' Insurance Fund informed the agency that Dennis could not perform his job duties, and it could offer no similar positions to accommodate his physical restrictions, Dennis needed to resign or he would be terminated. When Dennis did not respond to GCDSS by the deadline provided, GCDSS terminated him. Dennis then applied for ordinary and accidental disability with appellee, the Maryland State Retirement and Pension System (MSRPS), and was denied. Dennis appealed and his application was resubmitted for reconsideration. A physician contracted by MSRPS found that Dennis was not permanently disabled from performing his job duties, and that he did not suffer any disability as a result of the accident alleged on his application. Based on this finding, MSRPS affirmed its denial. Dennis appealed to the Circuit Court for Garrett County, Maryland. Dennis timely appealed to this Court and submitted three issues for our review, which we have consolidated and rephrased into the following:^[1]

1. Did the ALJ err in finding that Dennis did not suffer from a condition rendering him permanently incapable of fulfilling his job duties at GCDSS?

2. Did the ALJ legally err in finding that Dennis was not entitled to disability retirement because such a finding conflicts with his termination by GCDSS?

For the reasons that follow, we answer 'no' to the first issue, do not reach the merits of the second issue, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Dennis began working for GCDSS on January 17, 2007. From 2007 to 2012, Dennis was a foster care supervisor. From 2012 to November 2016, Dennis was a family preservation services supervisor. On November 1, 2016, Dennis voluntarily demoted to the Social Worker II position. At least as early as 2015 Dennis was evaluated by a doctor after complaining of lower back pain. Apparently, though, no medical condition prevented him from performing his essential job functions at that time, up until October 11, 2016.

The Two Workplace Injuries &Early Doctors' Visits

On October 11, 2016, Dennis filed an injury report with the GCDSS Department of Human Resources stating that, while at work, he bent over to throw some paper away and hit his head on a metal cabinet above the trash can and injured the front left side of his head. Two days later, Dennis visited Dr. Crowell, an orthopedic doctor, complaining of neck pain. Dennis reported that the onset of the pain was two days prior, after he hit his head at work.

On November 14, 2016, Dennis filed another injury report, explaining that on November 11 he injured his back when lifting three children into car seats. On November 15, Dennis relayed the incident at his physical therapy appointment, stating it had increased his pain.

On November 17, Dennis visited Dr. Mesbah Dowla, a gastroenterology specialist. Two visit reports were made. The first notes Dennis's neck and back pain and the incident when he hit head on the cabinet at work. A second report mentions the incident lifting the children and says Dennis will be out of work until his next visit.^[2] On December 1, Dr. Dowla stated that Dennis could return to work and resume his full regular work duties the following day, December 2. After each of his subsequent visits with Dr. Dowla on December 8, December 15, and January 5, 2017, Dr. Dowla noted that Dennis could continue working, with no mention of any physical restrictions. But Dennis's primary care physician, Dr. Buckingham, advised to the contrary. Dr. Buckingham wrote a note on January 9, 2017, stating Dennis could not lift over twenty-five pounds, and another note on January 30, 2017, stating it was problematic for Dennis to endure car rides longer than forty-five minutes due to a separate ailment, Dennis's inflammatory colitis.

Dennis's Request for a Reasonable Accommodation

Following the two workplace injuries, and in the midst of these doctors' visits, on December 30, 2016, Dennis submitted a Reasonable Accommodation Request Form to GCDSS, citing colitis and inflammatory colitis and muscle spasms in his back. He noted that these conditions prevent him from "lifting or transporting children" and wrote that a "lifting restriction is directly related to a work-related injury case currently open with workman's comp." He requested an accommodation limiting his duties so that he could refrain from lifting or transporting children, or to be transferred to a unit that does not require either task.

On January 31, 2017, Dr. Robert Toney, the State Medical Director (SMD) to whom Dennis was referred by the Department of Human Services, performed a workability evaluation of Dennis. In his February 2 report, Dr. Toney opined:

[I]t is my impression that Mr. Dennis is able to perform his job duties if he is given certain accommodations. Given Mr. Dennis' history of inflammatory colitis, he will likely need the accommodation of not having to transport children because of potential need for him to exit the car emergently to use the restroom. It is my impression that this accommodation will likely need to be permanent.

It is also my impression that Mr. Dennis may need a temporary restriction of no lifting more than 25 pounds. He is in the process of being referred to a chiropractor. It is my impression that this restriction should be lifted in the next six to eight weeks, if not, Mr. Dennis can be referred back to our office to reassess his long-term prognosis.

If Mr. Dennis cannot be accommodated on a permanent basis by not transporting children because of his inflammatory colitis, then it is my recommendation that the appropriate administrative actions be taken.

On February 9, GCDSS Department of Human Resources sent Dennis a letter in response to his request for reasonable accommodation. It explained that after its review of the SMD's Report, because transporting children is an essential function of the Social Worker II position, GCDSS was unable to accommodate Dennis's request. Because of this, GCDSS was placing Dennis on FMLA leave effective immediately through March 16, 2017, and then on March 17, 2017, Dennis would be granted a new FMLA entitlement of 480 hours.

Dennis's Doctors' Visits while on FMLA

After an April 3, 2017, visit with Dennis, Dr. Buckingham wrote in a note "to whom it may concern" that Dennis had been "under FMLA provisions due to a severe course with colitis," but it was now in remission and accordingly, Dennis "is ready to go back to full duties as it relates to his colitis limitations." However, in Dr. Buckingham's own report notes, he followed the good news about Dennis's colitis with the caution that "[t]he back is still a limiting issue as the twisting and reach/bending causes severe pain." On May 12, however, Dr. Buckingham wrote a letter stating that Dennis could not return to work until June 9, 2017. The letter also said:

I'm happy to report that his weight lifting limitations are no longer needed. He continues to struggle with on going back issues from the work-related injury sustained on 11/10/2016. From my point of view he has no current work restrictions. However, it is my understanding that he is currently awaiting a ruling on his workman's comp case that is related to the above date. Seeing as this case is still open and pending a judgement, I feel it is inappropriate for me to somehow dictate what that ruling/limitation should be. He is obviously still struggling from the injury on 11/10/2016, so further limitations to his work function should be guided by the pending ruling in early June.

On June 14, 2017, Dr. Buckingham wrote a letter saying that he had reviewed Dennis's work duties and because those duties

have not materially changed from the duties and requirements that caused his work injury on 10/11/2016 . . . I simply don't see how it is possible for [Dennis] to return. The restrictions that would allow him to work would be as follows:

1. He can't twist or bend.

2. He can't sit for longer than 15 without being able to move and change positions.

3. The above precludes driving for any extended period.

4. He would have a 10 pound lift/carry restriction.

These restrictions are related specifically and solely to the closed fracture of the ninth vertebra.

(Emphasis in original). Dr. Buckingham noted that the next step was for Dennis to consult with a Physical Medicine and Rehabilitation specialist, and that "we are trying to get this cleared through Workman's Comp."

On July 25, 2017, Dr. William Russell, a board-certified doctor of Physical Medicine &Rehabilitation, performed an Independent Medical Evaluation (IME) of Dennis on the referral of the Insured Workers' Insurance Fund (IWIF).^[3] Dr. Russell reported there was no causal relationship between Dennis's current complaints and the two workplace injuries. Dr. Russell found "no anatomical confirmation of a compression fracture," said Dennis should be "encouraged to return to work," and that he "does not have any 'permanent' impairment to the head, neck, or back, i.e., 0%, in consideration of the AMA Guides to...