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Judge rules in favor of S. Kingstown officer who says violent arrest triggered PTSD
Providence Journal - 9/7/2018
Sept. 07--PROVIDENCE, R.I. -- A Superior Court judge has overturned the state Retirement Board's denial of an accidental-disability pension for a South Kingstown police officer and Operation Desert Storm veteran who has argued that his confrontation with a drunken-driving suspect in 2010 triggered post-traumatic stress disorder and left him unable to safely perform his duties.
In the state's longest-running accidental disability pension dispute, Judge Jeffrey Lanphear vacated the Retirement Board's decision not to grant the tax-free benefit to Damon Borrelli, who joined the South Kingstown force in 2002 and remains on injured-on-duty status. The board based its decision on a subcommittee's determination that Borrelli's PTSD existed before he was hired and was the result of prior traumatic experiences in his life, not the 2010 confrontation.
Lanphear faulted the board for failing to make findings of fact substantiating its position and for failing to consider commendations Borrelli had received as an officer, as well as psychological screening that cleared him for the position.
Lanphear noted "widely" conflicting medical opinions about the genesis of Borrelli's condition, but cited state Supreme Court precedent that a person is entitled to an accidental-disability pension if an on-the-job injury is the proximate cause of the purported disability.
The judge referenced one doctor's determination that Borrelli's PTSD was not specifically caused by the incident involving the drunken-driving suspect. The same doctor later concluded in that report that Borrelli was "showing the result of cumulative factors of which the [assault] was the final blow."
"The doctor's report, viewed in its entirety for its precision, clearly concludes that the March 2010 assault was the proximate cause of Borrelli's disability," Lanphear wrote. "Accordingly, the court finds that the board has committed legal error with regards to its finding that Borrelli was not disabled 'but for' the assault."
Further, the judge continued, "It is well-established that an agency may not simply 'rubberstamp' a fact finder's conclusions and adopt it as its own; nor should the board grant deference to insufficient findings of fact or legal errors of the subcommittee."
The judge sent the matter back to the board for reconsideration.
Michael Lepizzera, who represented Borrelli, said the Retirement Board didn't have Borrelli evaluated by doctors who specialize in PTSD, a recurring complaint of the police union lawyer, Gary Gentile.
"I think the board should look at the disability the person is claiming and send in a specialist," Lepizzera said.
Evan England, spokesman for the general treasurer, said the board will probably refer the case to its disability subcommittee.
"The Retirement Board takes seriously its responsibility to award accidental-disability pensions to those who are disabled in the course of their duties, and to deny accidental-disability pensions to those who are not disabled in the course of their duties. We respectfully disagree with the court's ruling in this case," England said in an emailed statement.
In the eight years since Borrelli first claimed his disability, he has remained on injured-on-duty status and received $550,219 in salary, benefits and unused vacation time -- tax-free -- as of March 31, South Kingstown records show.
"This will extend the duration of our being down a man, which is frustrating, but we want justice done for all our employees and justice done for the community. Those two things are not always perfectly aligned," Town Manager Robert C. Zarnetske said of the ruling.
Until the matter is resolved, Borrelli will continue to receive his full salary, plus benefits. If the board opts to grant him an accidental disability pension, he would then be entitled to two-thirds of the average of his three highest years' salaries -- also tax-free. The town could, however, seek to get that sum adjusted based on any earnings.
Borrelli, who was dishonorably discharged from the Marines in 1992, graduated from Roger Williams University School of Law in 2011. He was admitted to the Rhode Island Bar in November 2016 and practices with the firm Lepizzera & Laprocina.
According to the account detailed in Lanphear's ruling and a police report, Borrelli was on duty as a plainclothes officer around 1:30 a.m.March 20, 2010, when a dispatcher alerted him to a suspected drunken driver. Borrelli passed a car in a no-passing zone. In response, the driver sped up, flashed his high beams and screamed "You [expletive]. I'm gonna kill you!" to Borrelli.
Borrelli pulled his unmarked car over and went to call the license plate in, when the other car "smashed" into back of his vehicle. Borrelli identified himself as a police officer, but the driver continued to scream threats and curse at him and then took a fighting stance and swung at him, striking Borrelli on the side of his face with a closed fist. The two men engaged in a rapidly escalating altercation, according to police reports. Borrelli reported being particularly anxious during the encounter because his gun was not secure in its holster.
The driver -- identified as Justin C. Raymond, then 24, of South Kingstown -- continued to struggle as Borrelli and two other officers attempted to handcuff him and place him under arrest. Raymond and his passengers told police that they didn't know he was an officer and that he didn't show a badge. Borrelli and another officer told investigators he had.
The police charged Raymond with simple assault, resisting arrest and disorderly conduct. Court records indicate that he later admitted to disorderly conduct and simple assault and received six months' probation. The third charge was dismissed.
Ten days after the incident, Borrelli submitted an injured-on-duty claim, reporting bruising and pain in his back, right elbow and right knee. An orthopedist diagnosed with acute sprains and muscle spasms, the ruling said.
The doctor cleared Borrelli for duty and he was assigned to report to work April 4, 2011. Borrelli -- who the ruling says had previously sought treatment for substance abuse and difficulties with his girlfriend -- called in sick on what was supposed to be his first day back. A doctor soon sent through a fax recommending that he not return for another month because the doctor believed he was experiencing PTSD.
Seven months later, Borrelli reapplied for the accidental-disability pension, citing back pain and PTSD. Over the ensuing years, the disability subcommittee fielded dueling doctors' diagnoses and repeatedly rejected Borrelli's claims, most recently in 2016.
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