[00:00:30] Speaker 04:
Mr. Worthland, whenever you're ready.

[00:00:34] Speaker 02:
Good morning.

[00:00:34] Speaker 02:
To please support counsel, my name is Steve Worthland, and I represent Corrections Officer Michael Van Arnstalen in reference to his Public Safety Officer benefit application.

[00:00:47] Speaker 02:
It is our position that the director erred in denying his application, and that in doing so, the decision was arbitrary and capricious.

[00:00:58] Speaker 02:
in that it was not based upon substantial evidence.

[00:01:02] Speaker 04:
Did you have something more in your introduction?

[00:01:06] Speaker 04:
No, ma'am.

[00:01:07] Speaker 04:
How can there not be substantial evidence if at least a number of the evaluations in the record supported what the board said, which is that he was not completely disabled?

[00:01:23] Speaker 02:
The problem arises when the

[00:01:26] Speaker 02:
Public safety officer benefits own experts don't agree.

[00:01:33] Speaker 02:
The first expert that they used, the first medical expert, was early on in the process.

[00:01:40] Speaker 02:
And that doctor indicated that the Klamath's condition would not improve.

[00:01:45] Speaker 02:
It would only deteriorate.

[00:01:49] Speaker 02:
After the hearing with the hearing officer, then and only then did the PSOB

[00:01:55] Speaker 02:
call in an expert witness to actually examine Sergeant Van Arnstalen.

[00:02:02] Speaker 02:
He examined him.

[00:02:03] Speaker 03:
It's still in my memory on this, but I seem to recall that the records show that your client's expert, that his doctors also referred to stress and depression as part of his injury.

[00:02:22] Speaker 02:
Yes, sir, they did.

[00:02:23] Speaker 02:
And as we all know, stress and depression and any type of psychological component is not the basis for the awarding of benefits under the PSOB Act.

[00:02:37] Speaker 03:
Unfortunately... But if those opinions are based on criteria that are not available under the regulation, in other words, an injury that's based in part on depression or these type of mental

[00:02:54] Speaker 03:
capabilities, doesn't that reduce the credibility of the opinion as a whole?

[00:03:01] Speaker 03:
Doesn't that go contrary to the regulations?

[00:03:05] Speaker 02:
I don't believe it does if you can bifurcate, if you will, the psychological component from the physical component and only rely upon the physical aspects

[00:03:21] Speaker 02:
then I think it is not a credibility issue.

[00:03:25] Speaker 03:
Let's say we bifurcate and let's say we're able to do that and we decide, okay, 10% goes to the psychological infirmities and 90% are physical.

[00:03:37] Speaker 03:
Don't you lose right there under the regulation?

[00:03:42] Speaker 02:
If that was all that Sergeant Van Arnstalen had, I can see that point.

[00:03:50] Speaker 02:
But that's not all he had.

[00:03:52] Speaker 02:
He had his orthopedic surgeon saying, these are the conditions, these are the physical conditions that he has.

[00:04:01] Speaker 02:
And those physical conditions only render him permanently fully disabled from all forms of sustained, re-numerative employment, and he has reached maximum medical improvement.

[00:04:14] Speaker 01:
Yeah, but he also said that

[00:04:16] Speaker 01:
The standard that he was applying there was in light of his education and experience, correct?

[00:04:22] Speaker 02:
No, sir.

[00:04:22] Speaker 01:
That was Mr. Cody, the only vocational expert in this case.

[00:04:27] Speaker 01:
Show us the one that you're just referring to where he says his physical infirmities.

[00:04:33] Speaker 02:
It is found in the supplemental appendix at page 3334.

[00:04:48] Speaker 02:
And you will see where his attending orthopedic surgeon, in response to the first question, lists the physical conditions.

[00:04:57] Speaker 01:
Where's the supplemental appendix?

[00:05:01] Speaker 01:
We have an appendix here, all right?

[00:05:03] Speaker 02:
Supplemental appendix is attached to the respondent's brief.

[00:05:09] Speaker 01:
The respondent's brief, okay.

[00:05:12] Speaker 01:
What page?

[00:05:13] Speaker 02:
Page 33 and 33 and going through 34.

[00:05:21] Speaker 04:
Is this SA?

[00:05:23] Speaker 02:
Do you have it?

[00:05:25] Speaker 02:
SA 3334.

[00:05:27] Speaker 02:
Now that document is what we have.

[00:05:28] Speaker 02:
Yes, ma'am.

[00:05:30] Speaker 04:
That document is important for two reasons.

[00:05:33] Speaker 04:
One... Well, if it's very important, that's a problem because I can't read it.

[00:05:37] Speaker 04:
Right?

[00:05:38] Speaker 04:
I mean, this is the copy we have.

[00:05:42] Speaker ?:
Yeah.

[00:05:43] Speaker 04:
Right.

[00:05:43] Speaker 04:
So you might want to tell me what it says.

[00:05:45] Speaker 02:
Okay.

[00:05:46] Speaker 02:
What it says is the doctor is asked what physical conditions

[00:05:51] Speaker 02:
Are we dealing with, and the doctor indicates, we're dealing with right knee, surgery, chronic pain, degenerative joint disease, left shoulder, labral tear, period.

[00:06:04] Speaker 02:
No depression, no psychological conditions whatsoever.

[00:06:08] Speaker 02:
The doctor has asked his opinion as to whether or not those conditions have reached maximum medical improvement.

[00:06:13] Speaker 02:
He says, yes, they have.

[00:06:15] Speaker 02:
He has asked whether or not those conditions have rendered.

[00:06:19] Speaker 01:
Could you read to us the last question?

[00:06:21] Speaker 01:
The very last question yeah, this is the one you're starting on right?

[00:06:32] Speaker 02:
Question number one asked for what physical conditions question number two and who feels in that who wrote in the those different conditions The doctor did the doctor yes, sir And then he has asked specific questions

[00:06:50] Speaker 02:
And those are the questions at the PSOB.

[00:06:53] Speaker 01:
What are the specific questions?

[00:06:55] Speaker 01:
Which specific question supports the notion that he was not capable of gainful employment?

[00:07:04] Speaker 02:
Number two, is it your medical opinion that the medical conditions identified above are traumatic physical conditions of the body

[00:07:14] Speaker 01:
Okay, but that doesn't establish... Caused by external force.

[00:07:17] Speaker 02:
That's important because that's what the POB requires you to show.

[00:07:21] Speaker 01:
Right, but what question and answer shows that he's not capable of gainful employment?

[00:07:28] Speaker 02:
Number five, is it your medical opinion that he has reached a level of maximum medical improvement as the physical injury is identified above?

[00:07:35] Speaker 02:
Yes.

[00:07:36] Speaker 02:
Is it your medical opinion as a direct approximate result of the injuries identified above?

[00:07:42] Speaker 02:
that he is permanently and totally disabled from all forms of full or part-time gainful employment activities that actually is compensated or commonly is compensated.

[00:07:54] Speaker 02:
That is PSOB language that he has asked there.

[00:07:59] Speaker 02:
Number seven, is it your medical opinion the injuries identified were a substantial factor in bringing about his disability?

[00:08:07] Speaker 02:
Answer, yes.

[00:08:09] Speaker 02:
or all the medical opinions that you have provided above to a reasonable degree of medical probability, yes.

[00:08:16] Speaker 03:
So while you're at it, read number one, because I'm unable to read that particular question.

[00:08:21] Speaker 03:
And I say this to all the parties involved.

[00:08:24] Speaker 03:
I mean, it's unacceptable to submit a record that looks like this.

[00:08:30] Speaker 03:
I mean, someone has got to go through and check the documents that you're submitting and make sure that they're going to copy one or not.

[00:08:39] Speaker 03:
I mean, it does us no good to not be able to read this.

[00:08:42] Speaker 03:
I couldn't agree with you more.

[00:08:43] Speaker 03:
Could you read, then, this first part here, the first part?

[00:08:46] Speaker 02:
Question number one.

[00:08:47] Speaker 02:
Please list the physical conditions that you have diagnosed as line-of-duty injuries sustained by Corrections Officer Michael Van Arnsdalen.

[00:08:57] Speaker 02:
The doctor wrote right knee surgery, chronic pain, DJD, degenerative joint disease, left shoulder labral tear.

[00:09:08] Speaker 02:
Those are all of the line of duty injuries.

[00:09:11] Speaker 04:
Can I just clarify what doctor?

[00:09:13] Speaker 04:
I thought we were talking about Dr. Dunn, who's the orthopedic surgeon.

[00:09:16] Speaker 02:
No, ma'am.

[00:09:16] Speaker 04:
We're dealing with- No, we're talking about Dr. Fleishley or whatever.

[00:09:20] Speaker 04:
OK.

[00:09:21] Speaker 04:
Yeah.

[00:09:21] Speaker 04:
OK.

[00:09:21] Speaker 04:
Well, I have that listed as one that said that.

[00:09:24] Speaker 04:
Yes.

[00:09:25] Speaker 04:
And there's obviously conflicting opinions and other opinions that said otherwise.

[00:09:29] Speaker 04:
So I guess to we're back to where we started is why those conflicting opinions don't at least give us substantial evidence.

[00:09:37] Speaker 02:
Because I have found in representing our public safety officers, predominantly what you have in non-fatal line of duty injuries, is there some psychological component involved.

[00:09:55] Speaker 02:
And it is difficult to get the doctors to separate that which can be the basis for compensability from that which is not.

[00:10:07] Speaker 02:
These people do not suffer these line of duty injuries like most people do in workers' compensation claims, where they hurt their back lifting something.

[00:10:18] Speaker 02:
They get hurt going into a burning building when the rats are running out.

[00:10:23] Speaker 02:
They get hurt, as does Corrections Officer Van Arnstalen, when he wades into the middle of a gang fight between two rival gangs in a prison.

[00:10:34] Speaker 02:
Probably knowing full well, he's about to have both gangs turn on him and pummel him.

[00:10:38] Speaker 02:
And that's exactly what happened here.

[00:10:42] Speaker 01:
But you make a good point.

[00:10:43] Speaker 01:
But it seems to be a point that the criteria ought to be revised.

[00:10:49] Speaker 02:
Do I think it should be?

[00:10:50] Speaker 02:
Absolutely, Your Honor.

[00:10:52] Speaker 02:
Do I have a right to ask you to do that?

[00:10:54] Speaker 02:
No, I do not.

[00:10:57] Speaker 02:
And so what we end up then with, I submit to you,

[00:11:00] Speaker 02:
is did the director have substantial evidence?

[00:11:03] Speaker 02:
I submit to you she did not.

[00:11:05] Speaker 01:
Why not?

[00:11:06] Speaker 01:
I mean, there are all sorts of medical opinions saying that he's capable of gainful employment.

[00:11:12] Speaker 02:
To what degree?

[00:11:14] Speaker 02:
The reports she relied upon are two.

[00:11:17] Speaker 02:
She relied upon the second independent medical evaluator that the PSOB employed in this claim.

[00:11:24] Speaker 02:
The first one, Dr. Elkin said, he's reached maximum medical improvement

[00:11:30] Speaker 02:
and he can do sedentary work.

[00:11:33] Speaker 02:
Set the bar, if you will.

[00:11:35] Speaker 02:
Before that, a file review had been done by the PSOB doctor, Dr. Ogden, I think his name is, who said his condition's not going to improve and he is capable of employment.

[00:11:49] Speaker 02:
After we have the hearing and after Dr. Elkins says he can do no more than sedentary work, we obtain the vocational report

[00:12:01] Speaker 02:
that you alluded to from Mr. Cody, in which he said that based upon Octon and based upon Elkins, the two PSOB doctors in the can, if you will, at that time, he is permanently totally disabled.

[00:12:18] Speaker 02:
As you pointed out, he also said, I'm taking into consideration his education, his work experience.

[00:12:28] Speaker 02:
He held, he held corrections officer.

[00:12:31] Speaker 02:
Van Artsdalen to a higher standard.

[00:12:34] Speaker 02:
He wasn't evaluating this individual in a vacuum.

[00:12:37] Speaker 02:
He says, you have to take into consideration that which the applicant brings to the table.

[00:12:43] Speaker 02:
And what he brings to the table is his work experience, his education.

[00:12:48] Speaker 02:
And even with that, he is still permanently, totally disabled.

[00:12:52] Speaker 01:
And I would point out to you, that is the only- Yeah, but the problem is that once you apply those criteria, you narrow the kind of jobs that he could have.

[00:13:00] Speaker 01:
that would make him able to have gainful employment.

[00:13:07] Speaker 02:
I don't believe you do, Your Honor.

[00:13:08] Speaker 02:
He is saying that if you have a situation where you have come to the point where this is all this man can do, using the PSOB doctors, he can't do anything, even with what he knows how to do.

[00:13:29] Speaker 03:
What do you have to say about the functional capacity evaluation performed by Ms.

[00:13:35] Speaker 03:
Abhinila?

[00:13:39] Speaker 02:
One, she comes back and she says he's able to do light duty work.

[00:13:46] Speaker 02:
That's totally inconsistent with what the PSOB's other doctors said.

[00:13:50] Speaker 02:
It's inconsistent, but it's evidence as well, correct?

[00:13:54] Speaker 02:
It's some evidence.

[00:13:56] Speaker 02:
Is it credible evidence?

[00:13:58] Speaker 02:
Well, the question is it's substantial evidence.

[00:14:00] Speaker 02:
I don't believe it is substantial evidence, your honor.

[00:14:02] Speaker 02:
To be substantial evidence, it has to be credible evidence.

[00:14:08] Speaker 02:
Evidence, you can have any kind of evidence, but it has to be credible evidence.

[00:14:12] Speaker 03:
She conducted a functional capacity evaluation.

[00:14:15] Speaker 03:
The report that you referred to is just solely based on an injured knee and shoulder.

[00:14:22] Speaker 03:
But here we have a report from an expert

[00:14:26] Speaker 03:
That's, that goes to the precise question, whether there's any functional capacity in your client.

[00:14:33] Speaker 03:
And she said, yes, there is.

[00:14:34] Speaker 03:
He can do light work.

[00:14:36] Speaker 02:
Which is totally contrary to what Dr. Elkins, the PSOB's first IMD doctor said.

[00:14:41] Speaker 01:
But that doesn't make it incredible.

[00:14:43] Speaker 01:
I mean, that doesn't make it incredible.

[00:14:46] Speaker 01:
The problem is where we're reviewing a decision of a fact finder, if there's substantial evidence to support what the person found, we have to sustain it.

[00:14:56] Speaker 01:
And here, as Judge Rainey is pointing out to you, there is evidence from Abinella and others that supports the decision of the director here.

[00:15:09] Speaker 01:
And so it's not our job to weigh the evidence or to decide that the evidence should be discarded that supports the director's decision.

[00:15:21] Speaker 02:
And if that's the court's decision?

[00:15:23] Speaker 02:
then Sergeant Van Orangedale is going to go down fighting just like he did in that prison.

[00:15:28] Speaker 03:
I think Congress considered this when they changed the regulation.

[00:15:34] Speaker 03:
Had the regulation not changed and taken away the notion that if the question is in balance that we find in favor of your client, then I think you'd have a better argument.

[00:15:49] Speaker 03:
But that's no longer

[00:15:51] Speaker 03:
in the equation here.

[00:15:52] Speaker 03:
I mean Congress decided that.

[00:15:55] Speaker 03:
I couldn't agree with you more.

[00:15:57] Speaker 04:
Good morning and may it please the court.

[00:16:15] Speaker 01:
I just want to reiterate Judge Raina's point that you should not be submitting something as an appendix, which is illegible.

[00:16:22] Speaker 01:
You have an obligation to review it and make sure that it can be read.

[00:16:26] Speaker 00:
I apologize, Your Honor.

[00:16:27] Speaker 00:
I did talk with the agency, and that was the best.

[00:16:30] Speaker 00:
We actually did try to clean it up before we submitted it, but that was the best version.

[00:16:33] Speaker 01:
Well, it would be the best version.

[00:16:35] Speaker 01:
You can have it retyped and try to get opposing counsel to agree that that's what it said.

[00:16:40] Speaker 01:
I mean, you know, that's not an excuse for submitting something that's illegible.

[00:16:44] Speaker 00:
You're absolutely correct, Your Honor.

[00:16:45] Speaker 01:
But what did the director say about this checklist?

[00:16:51] Speaker 01:
I can't even read the name.

[00:16:52] Speaker 01:
What is the name?

[00:16:53] Speaker 00:
It's Dr. James Fleishley.

[00:16:55] Speaker 00:
And actually, if you turn to one more page, page 35, which also is not a very good copy, that's from the same doctor, Dr. James Fleishley.

[00:17:08] Speaker 00:
And under history of present illness, it actually says,

[00:17:13] Speaker 00:
He suffers from post-traumatic stress syndrome as well and is disabled because of it.

[00:17:18] Speaker 00:
And so Dr. Fleishley was not actually a doctor that purely found based on orthopedic condition that Mr. Vandert-Stalin was totally disabled.

[00:17:26] Speaker 00:
And in fact, in the reply brief on pages two and three, Mr. Vandert-Stalin actually specifically stated that he was not relying on Dr. Fleishley's report.

[00:17:37] Speaker 03:
What were you reading from?

[00:17:39] Speaker 00:
Case 35 is just another... Yes, I apologize, Your Honor.

[00:17:43] Speaker 00:
It was underneath history of present illness.

[00:17:47] Speaker 00:
And it's the third sentence down.

[00:17:49] Speaker 00:
He suffers from post-traumatic stress syndrome as well and is disabled because of it.

[00:17:55] Speaker 00:
And so this was another doctor who, although from the claimant stated that he was totally disabled, it also was based on a psychological condition.

[00:18:06] Speaker 00:
And again, in their reply brief on pages two and three, Mr. Van Arsalan actually stated that he wasn't relying on Dr. Fleishle's report because he had mentioned psychological conditions.

[00:18:16] Speaker 03:
It strikes me odd that you have the individuals that this act is supposed to assist.

[00:18:30] Speaker 03:
If they're killed in action, that's one thing.

[00:18:33] Speaker 03:
But if they're not killed in action and they're injured,

[00:18:36] Speaker 03:
as a result of a gang fight in a prison.

[00:18:38] Speaker 03:
Now they're injured.

[00:18:40] Speaker 03:
There's got to be a stress factor in there somewhere.

[00:18:44] Speaker 03:
How do we discount that?

[00:18:50] Speaker 03:
Or how is one of these individuals ever going to be able to obtain assistance post the amendment of the act?

[00:19:01] Speaker 03:
If there's any showing whatsoever of post-traumatic

[00:19:06] Speaker 03:
stress or any type of psychological adverse results that come from the incident, how do we deal with this?

[00:19:18] Speaker 03:
I mean, it just seems to me that you'll be able to get up here almost in every case and win.

[00:19:26] Speaker 03:
And it strikes me as odd that that's not what the act was designed to do.

[00:19:31] Speaker 00:
You're right, Your Honor.

[00:19:32] Speaker 00:
It is something, though, where it has to be based on the physical evidence component of it.

[00:19:37] Speaker 00:
And Mr. Worthland's argument was that perhaps you could bifurcate some of these medical opinions, except here in this record, there was no evidence that 80% was based on the left shoulder, 20% on the right knee, and vice versa.

[00:19:52] Speaker 00:
And so in this evidence, based on... No, but there's evidence.

[00:19:55] Speaker 03:
The evidence he pointed to showed that 100% of his physical infirmities were preventing him from working.

[00:20:02] Speaker 03:
from any type of employment?

[00:20:04] Speaker 00:
I believe that the doctor's report he was referring to is Dr. Dunn, and that was back in 2005.

[00:20:10] Speaker 00:
And so there is a matter of recency here, too, where, for instance, the Bureau's doctor's, Dr. Elkin's report was in 2011.

[00:20:18] Speaker 00:
Dr. Paul actually opined twice in 2014.

[00:20:20] Speaker 03:
Wouldn't you want to apply the report that's closest to the incident?

[00:20:28] Speaker 00:
Not necessarily, because here, under 28 CFR 32.5, the Bureau had the authority to go out and get other medical opinions to ascertain the condition of Mr. Vanard Stalin.

[00:20:41] Speaker 00:
And so here, I would argue that recency to the opinion of the director's determination in 2015 is actually more helpful to Mr. Vanard Stalin than in 2005.

[00:20:50] Speaker 03:
And you do have here... Well, maybe between that period of time is when all of the psychological dilemmas

[00:20:59] Speaker 00:
Well, but you also have, with Dr. Elkins and Dr. Paul, you know, purely looking at the orthopedic standpoint where they determined that he was not totally disabled and that he was capable of sedentary and light employment.

[00:21:13] Speaker 00:
And so you do have two instances where those doctors were not looking at the psychological standpoint and determined that Mr. Vanert-Stalin could work.

[00:21:21] Speaker 00:
Along with Ms.

[00:21:21] Speaker 00:
Avenilla with her functional capacity assessment, she determined that Mr. Vanert-Stalin was capable of employment.

[00:21:28] Speaker 00:
And the director weighed all of that evidence.

[00:21:31] Speaker 00:
And in fact, Mr. Vannard-Stellin had argued that she had not considered Mr. Rushmore's functional capacity assessment or the second opinion of Dr. Nunnery.

[00:21:40] Speaker 00:
And in our supplemental appendix on page 11, those are listed in the evidence log for the different evidence that the director considered.

[00:21:49] Speaker 01:
Where does the ruling out of depression and PTSD come from?

[00:21:55] Speaker 01:
Is that the statute or the regulation?

[00:21:57] Speaker 00:
That comes from the regulation, and that's specifically at 32.6.

[00:22:03] Speaker 01:
Is that cited in your brief or quoted in your brief?

[00:22:07] Speaker 00:
It is, and also the director.

[00:22:09] Speaker 01:
Where is it in your brief?

[00:22:11] Speaker 00:
I think we had mentioned that

[00:22:18] Speaker 00:
stress and psychological conditions were excluded.

[00:22:22] Speaker 00:
I believe that we referred to the director's determination.

[00:22:28] Speaker 00:
Where is the director's quota?

[00:22:30] Speaker 00:
In the director's decision, she explains it at supplemental appendix three, and so that's at page three of her determination.

[00:22:40] Speaker 00:
And she went through the regulations at 28 CFR 32.3,

[00:22:47] Speaker 00:
where it's explained that injury means a traumatic physical wound directly, approximately caused by external force, but does not include, and I'm reading directly from the regulation, but does not include any condition of the body caused or occasioned by stress or strain.

[00:23:06] Speaker 00:
And then further within regulation 32.3, it states that stress or strain includes physical stress or strain

[00:23:14] Speaker 00:
mental stress or strain, post-traumatic stress disorder, and depression.

[00:23:18] Speaker 00:
And so the director, when she was examining the evidence, properly excluded any claim for disability based on either post-traumatic stress disorder, or strain, or anxiety.

[00:23:30] Speaker 01:
Has it been argued that the regulation is inconsistent with the statute?

[00:23:34] Speaker 00:
No.

[00:23:35] Speaker 00:
That's my knowledge, Your Honor.

[00:23:37] Speaker 00:
All right, here?

[00:23:38] Speaker 01:
Well, no.

[00:23:39] Speaker 00:
I don't believe so.

[00:23:42] Speaker 00:
I think in Harrison that this court saw last term, I believe that a question came up about post-traumatic stress disorder, but the court upheld the board's determination.

[00:23:53] Speaker 01:
I don't know if I'm answering your question.

[00:23:56] Speaker 01:
Well, did we address the regulation, the validity of the regulation in that case?

[00:24:00] Speaker 01:
No.

[00:24:04] Speaker 00:
And here the director did apply the regulations in effect at the time of her determination, which was in 2015, and determined again, based on all the evidence before her, that three doctors, Dr. Uchtin, I believe is how you say his name, Elkins and Dr. Paul, as well as Ms.

[00:24:21] Speaker 00:
Abinola, determined that he was not totally disabled.

[00:24:23] Speaker 01:
So there might be a question of whether the regulation is consistent with the statute, but it wasn't raised here.

[00:24:29] Speaker 00:
It was not raised here, and then in addition,

[00:24:33] Speaker 00:
The statute has a few definitions, but for instance, it refers to under 42 USC 3796B.

[00:24:43] Speaker 00:
It defines catastrophic injury as that meaning an injury at the direct and proximate consequences of which permanently prevent an individual from performing any gainful work.

[00:24:57] Speaker 00:
And within the actual definitions within that sub-chapter, it does

[00:25:01] Speaker 00:
The regulations flesh out the rest of the definitions.

[00:25:06] Speaker 01:
So there might be a question as to why the regulation goes too far.

[00:25:10] Speaker 00:
I don't believe there is, but I also don't think this would be the case for it because that was not argued in the briefs.

[00:25:18] Speaker 00:
And then in addition, Congress had amended these regulations in 2013.

[00:25:24] Speaker 00:
And I believe as far back as 2006, I could be wrong, stress restraint had been removed from being a compensable injury.

[00:25:35] Speaker 03:
So when I read that, when I read on the change to the act that caused the change to the regulation,

[00:25:48] Speaker 03:
It seemed to me that you could look at this two ways, that what Congress is saying is you can't look at PTSD as the sole cause of the disability.

[00:26:01] Speaker 03:
But I wasn't too sure that it said that any time you find a stress-related disorder as part of this overall physical disability or in connection with or part of that

[00:26:17] Speaker 03:
the individuals to be denied benefits.

[00:26:26] Speaker 03:
I know we can't bifurcate the evidence, but if maybe Congress is trying to separate this out and say if you have a disability that's based solely on PTSD, then that does not qualify.

[00:26:43] Speaker 03:
But somehow it appears to have been interpreted

[00:26:46] Speaker 03:
to mean that if you have any type, you know, a minutiae of stress, and it just seems to me that if you're a fireman or a policeman or responding to a terrorist attack, you're going to come out of there with a bit of stress.

[00:27:02] Speaker 03:
And somebody's going to say, you have some stress, and I can relate that to your inability to work.

[00:27:11] Speaker 03:
I'm not too sure that that's a question.

[00:27:15] Speaker 03:
Well, let me phrase it as a question.

[00:27:21] Speaker 03:
Does a regulation create a per se rule that if there's any type of stress related in these cases, if there's any type of stress factor related, then that the officer is not eligible for benefits under the Act?

[00:27:40] Speaker 00:
I don't quite know how to answer your question, Your Honor.

[00:27:46] Speaker 00:
For instance, with the regulations when they were amended, it now includes heart attacks and things that could also possibly come from the stress or strain.

[00:27:57] Speaker 00:
At least in this instance, we do have a record where there was nothing clear that a certain percentage could be, at least from the evidence Mr. Vandertsdalen presented, that a certain amount of the evidence could be attributed just to stress or strain or even to the physical disability.

[00:28:14] Speaker 00:
And so, at least on the record before us, we have an instance where there's substantial evidence supporting the director's determination.

[00:28:21] Speaker 01:
I think what Judge Rain is suggesting is that, as in the veterans context, that does the regulation cover a situation where there is physical injury and the PTSD is secondary to the physical injury?

[00:28:36] Speaker 01:
In other words, that it results from the physical injury.

[00:28:40] Speaker 00:
And here, I do believe the regulations are consistent with saying it has to be a catastrophic injury that is directly or proximately caught.

[00:28:49] Speaker 00:
The injury, whatever it is, is directly or proximately caused by whatever, in this case, the correctional officer suffered.

[00:28:56] Speaker 00:
And here, the catastrophic injury that Mr. Vanner and Stalin suffered, which is not in dispute.

[00:29:01] Speaker 00:
And the director, it's never been in dispute as to whether he was injured in the line of duty.

[00:29:06] Speaker 00:
or that he's permanently disabled, the question is just total disability.

[00:29:11] Speaker 00:
But here, the catastrophic injury was the two or three juvenile inmates roughing him up in the hallway and hurting his left shoulder and right knee.

[00:29:21] Speaker 00:
And we don't have evidence in this record, at least, that the catastrophic injury was PTSD from that encounter.

[00:29:30] Speaker 03:
I think the statute uses the phrase personal injury, and the statute doesn't

[00:29:36] Speaker 03:
go further than that.

[00:29:37] Speaker 03:
Say, personal injury, A, physical injury, B, not no stress-related injury.

[00:29:46] Speaker 00:
Yes, the statute does at 3796 say direct approximate results of a personal injury sustained in the line of duty.

[00:29:56] Speaker 03:
It doesn't say that personal injury does not include any type of stress factors.

[00:30:03] Speaker 00:
That's right.

[00:30:04] Speaker 00:
But here again, we

[00:30:05] Speaker 00:
do not have anything in this record to indicate that necessarily from that encounter on, I believe it was December 10, 2004, that the injury was that he didn't go to the hospital for stress or strain.

[00:30:19] Speaker 00:
He went to the hospital because he hurt his left shoulder and right knee.

[00:30:22] Speaker 00:
And at least on the evidence before this court, there are three doctors, as I mentioned, and one functional capacity assessment report from Ms.

[00:30:30] Speaker 00:
Abunela that support the director's determination of the finding that he was not totally disabled.

[00:30:36] Speaker 00:
And again, it's not disputed that he's permanently disabled from these injuries.

[00:30:39] Speaker 00:
But the question is total disability.

[00:30:41] Speaker 00:
And there isn't anything in the record to support that.

[00:30:46] Speaker 01:
What is the language, again, that rules out depression and PTSD?

[00:30:51] Speaker 00:
Yes, Your Honor.

[00:30:53] Speaker 01:
Is that page three of the opinion?

[00:30:56] Speaker 00:
Yes.

[00:30:57] Speaker 00:
So it's in the regulations.

[00:31:00] Speaker 00:
It's in the definitions section of the regulations.

[00:31:03] Speaker 00:
And that's 28 CFR.

[00:31:03] Speaker 01:
It's not on the page here?

[00:31:06] Speaker 00:
No, and I believe the director in her decision had, so in footnotes six, seven, and eight, she cited to the regulations where the definitions are.

[00:31:21] Speaker 00:
So those sites are actually 28 CFR 32.3.

[00:31:25] Speaker 00:
And when you go through the regulation.

[00:31:27] Speaker 01:
And what does the regulation say?

[00:31:29] Speaker 00:
So the regulation says under, and these aren't numbered,

[00:31:35] Speaker 00:
because they're just definitions.

[00:31:36] Speaker 00:
But injury means a traumatic physical wound or a traumatized physical condition of the body directly and proximately caused by external force.

[00:31:46] Speaker 00:
And I can read through the rest of it.

[00:31:48] Speaker 00:
So how does it exclude?

[00:31:49] Speaker 00:
And then it goes to, but does not include, the first one is any occupational disease.

[00:31:56] Speaker 00:
And the second is any condition of the body caused or occasioned by stress or strain.

[00:32:02] Speaker 00:
And then further in the definitional section,

[00:32:05] Speaker 00:
stress or strain is defined as stress or strain includes physical stress or strain, mental stress or strain, post-traumatic stress disorder and depression.

[00:32:16] Speaker 00:
And I believe I'm out of time.

[00:32:18] Speaker 03:
Doesn't that refer to if you have a situation where the entire disability is alleged to be based on stress or strain?

[00:32:32] Speaker 01:
Tends to be talking about a physical condition that's caused by stress or strain rather than stress or strain which is the result of a physical condition.

[00:32:42] Speaker 00:
I think I would agree with you, Your Honor.

[00:32:43] Speaker 01:
You do agree?

[00:32:44] Speaker 00:
Yes.

[00:32:45] Speaker 01:
Well, but so that's a problem here, isn't it?

[00:32:47] Speaker 01:
Because his physical condition led to the PTSD and the depression.

[00:32:55] Speaker 00:
But here, the injury that occurred

[00:32:59] Speaker 00:
was the physical condition, and that was, and he, and we also have something here where in the reply brief, at least on pages two through four, Mr. Gennard Stalin was abandoning any reference even to doctors that had referred to the psychological conditions in recognition that it has to be based on the physical injury, and moreover,

[00:33:23] Speaker 00:
uh... in some of the doctor's opinions that mister gunnard stalin submitted.

[00:33:27] Speaker 01:
I don't read the regulations the way you quoted it.

[00:33:29] Speaker 01:
I'm not sure the regulation says that.

[00:33:31] Speaker 01:
It says stress or strain that causes physical injuries not included.

[00:33:35] Speaker 01:
So if he had PTSD and that caused a physical problem that would not be included.

[00:33:40] Speaker 01:
Clear enough.

[00:33:42] Speaker 01:
But I'm not sure that it's clear that stress or strain resulting from a physical injury isn't to be taken into account.

[00:33:51] Speaker 00:
I think, again,

[00:33:54] Speaker 00:
at least with what we have here, and I want to answer your question, and I think I'm just not working myself out of trying to answer it, but my reading of the regulations, so the injury, does not include any occupational disease.

[00:34:12] Speaker 00:
I imagine that might be something like carpal tunnel syndrome.

[00:34:15] Speaker 01:
Well, let's do a hypothetical.

[00:34:21] Speaker 01:
as a result of an injury in the line of duty, and that that causes PTSD.

[00:34:28] Speaker 01:
Is that a compensable injury?

[00:34:32] Speaker 00:
I don't believe so, Your Honor.

[00:34:34] Speaker 01:
Because?

[00:34:35] Speaker 00:
Because, so if it was just purely the claim of PTSD, then that would be excluded under the regulations.

[00:34:45] Speaker 01:
What language of the regulation excludes it?

[00:34:48] Speaker 00:
With the definition of injury, where it excludes any condition of the body caused or occasioned by stress or strain?

[00:34:55] Speaker 01:
The stress or strain didn't cause the loss of the leg.

[00:34:58] Speaker 01:
The loss of the leg caused the stress or strain.

[00:35:02] Speaker 00:
Right.

[00:35:03] Speaker 00:
And under the regulations, it would be compensable if he was permanently and totally disabled because of the loss of his leg.

[00:35:12] Speaker 01:
Including the PTSD that flowed from him.

[00:35:15] Speaker 00:
that would not be a consideration that the board would consider in whether he was permanently and totally disabled.

[00:35:23] Speaker 00:
Under these regulations, the director had to apply them as written and, again, did weigh the evidence, did look at the various doctor's reports that Mr. Vanner and Stalin submitted.

[00:35:33] Speaker 00:
Some of the reports that he'd submitted said he is disabled from being his former occupation as a correctional officer,

[00:35:42] Speaker 00:
And that's not a standard that the director can necessarily use, because just if you can no longer be a correctional officer, it's impossible that you could do other work.

[00:35:50] Speaker 00:
But here, this record does show that there is substantial evidence from the three doctors and the functional capacity assessment that he was not totally disabled.

[00:36:00] Speaker 00:
And the question is not permanent disability, but total disability.

[00:36:03] Speaker 00:
And those four individuals found that he could work.

[00:36:09] Speaker 04:
Thank you.

[00:36:10] Speaker 00:
Thank you very much.

[00:36:17] Speaker ?:
Mr. Woodland, do you have a final comment?

[00:36:19] Speaker ?:
Two minutes.

[00:36:21] Speaker 02:
Very briefly, to come back to you, Your Honor.

[00:36:25] Speaker 02:
A couple years ago, I represented a first responder who was on the roof of the Pentagon on 9-11.

[00:36:32] Speaker 02:
What he saw floating past him from the water being thrown onto that building, the curtain came down.

[00:36:39] Speaker 02:
Nothing but psychological, not a scratch on his body.

[00:36:44] Speaker 02:
Was he entitled to a

[00:36:48] Speaker 02:
PSOB benefits under the law?

[00:36:50] Speaker 02:
No, he's not, because he had no contemporaneous physical injury.

[00:36:55] Speaker 02:
It's a crying shame, but that's what it is.

[00:37:00] Speaker 02:
But when we come back to a situation where the attending orthopedic surgeon for Sergeant Van Orrenstalen, contemporaneous with the second IME report from the PSOB, contemporaneous with the

[00:37:16] Speaker 02:
functional capacity evaluation of the physical therapist says that solely as to the physical conditions he is permanently totally disabled.

[00:37:26] Speaker 02:
I submit to you it's a matter of quantity versus quality.

[00:37:34] Speaker 02:
Substantial evidence needs to be quality evidence and here the quality evidence comes from the attending orthopedic surgeon who says

[00:37:45] Speaker 02:
purely for the physical conditions, he is permanently totally disabled.

[00:37:49] Speaker 02:
Meanwhile, you've got the PSOB, doctor number two, saying he can do light duty work.

[00:37:56] Speaker 02:
Well, apparently, Mr. Van Arnstalen went to Lourdes and got the cure because the PSOB's first doctor says he can do nothing more than sedentary work.

[00:38:06] Speaker 02:
And so now the quality, if you will, of the PSOB's evidence contradicts itself.

[00:38:16] Speaker 01:
Depression and PTSD.

[00:38:19] Speaker 02:
It is secondary to the physical injuries in the claim.

[00:38:24] Speaker 01:
Who addressed the source of the depression and PTSD?

[00:38:30] Speaker 02:
The doctors make reference to it in passing, basically.

[00:38:35] Speaker 01:
But they don't tie it to the physical injury directly.

[00:38:40] Speaker 02:
As an officer of the court, I can't stand before you and say, no, they didn't.

[00:38:46] Speaker 02:
Um, it's, it's there, it's, it's running on a parallel track, if you will, to the physical conditions.

[00:38:55] Speaker 02:
Um, and we've had a discussion about this at length here and it's inconceivable to me that public safety officers who suffer a catastrophic injury don't have, I'd be amazed if they didn't have some sort of psychological impact.

[00:39:15] Speaker 02:
upon their life.

[00:39:19] Speaker 02:
That's what I've got.