Ex-county worker files lawsuit over disability loss
Retirement board, system targeted
A former longtime Allegheny County employee with severe back problems who was denied disability retirement benefits has filed a lawsuit claiming the process for determining who receives such benefits “is inherently irrational, arbitrary and capricious.”
According to the lawsuit filed Wednesday afternoon in Allegheny County Common Pleas Court, the county’s retirement board and retirement system are violating the U.S. Constitution by not establishing clear and equally applied criteria for awarding disability retirement benefits.
The result is that some applicants receive benefits while others with similar health issues do not, claims the suit filed on behalf of Susan Donohue by attorneys with the law firm of Feinstein Doyle Payne & Kravec, LLC, and the Law Offices of Timothy P. O'Brien, Esq.
Ms. Donohue and her lawyers are seeking to have the suit certified as a class action on behalf of others who they believe might be affected in a similar way.
In an email response to questions, Brian Gabriel, the retirement board’s solicitor, said, “The Retirement System of Allegheny County is reviewing and will respond to the Court filings in that forum. We will not have comments on the merits of Ms. Donohue’s disability application.”
“In this case and all other disability matters, the Board has ensured that the applicant receives all process due under our laws,” he added.
Mr. Gabriel said he was surprised that Ms. Donohue and her lawyers were seeking classaction status.
“That characterization is surprising in view of the finite and limited number of disability applications that result in a local agency hearing, let alone a statutory appeal, as well as the fact-specific nature of medical information for a particular application,” Mr. Gabriel said.
Ms. Donohue, 55, of West Deer worked for Allegheny County beginning in 1982 doing clerical tasks for magisterial district judges. The job involved lots of sitting and standing for tasks such as answering phones, filing, scheduling hearings and answering the window.
“I tried my best to do the full job, and by 2014 I could no longer do it,” Ms. Donohue said in an interview Wednesday afternoon. The county terminated her July 6, 2015, because she was “unable to return to work and there does not appear to be any alternative accommodation that would enable you to return to work and perform the essential functions of the position,” according to the suit.
Ms. Donohue said she uses a cane and walker and cannot sit or stand for prolonged periods. “I go on bed rest a lot,” she said.
In 2012, Ms. Donohue took medical leave because of back problems, including severe back degeneration, spondylosis, stenosis, and tears and herniated disks in the lumbar and thoracic regions. She returned to work in 2013 with temporary accommodations but took leave again as her symptoms worsened, the suit said. Her last full day as a county employee was Aug. 27, 2014.
In February 2015, Ms. Donohue applied to the Retirement Board of Allegheny County for a disability pension, which essentially gives a worker a full pension at an earlier age. It differs from a pension taken in early retirement prior to age 60, which provides a lesser amount than if retirement occurred at 60.
According to the code under which the county operates, the suit said, county employees with at least 12 years of service are eligible for retirement benefits in the event of a total and permanent disability, even if they are younger than 60.
Ms. Donohue was examined by four physicians chosen by Frank J. Costa, a medical consultant who has a contract to make selections for the retirement board.
Under state law, three practicing physicians must decide unanimously that an applicant is “totally and permanentlydisabled physically” for that person to receive a retirement allowance, according to the suit.
But Dr. Costa and the four physicians were not given “any written guidelines for a determination of mental incapacity or total and permanent physical disability,” the suit said.
All four physicians submitted paperwork to Dr. Costa that said Ms. Donohue was not totally and permanently physically disabled, the suit said. One of the physicians, though, said Ms. Donohue could return to work only if accommodations were made.
That same physician, identified only as Dr. Valeriano, sent a letter to the Social Security Administration based on the same examination that said “within a reasonable degree of medical certainty, I would find that [Ms. Donohue] is totally disabled due to back pain,” according to the suit.
Ms. Donohue’s treating physician ordered her to have a functional capacity evaluation, which concluded that she could not perform her job duties because of her health issues, the suit said. She sent the result of that exam and reports from three independent Allegheny County physicians who concluded that she was totally and permanently disabled, but she was once again denied benefits, the suit said.
The lawsuit said that if the retirement board takes into account only the decision made by its selected physicians, it deprives people of the right to present evidence in support of their application in violation of the due process clause of the 14th Amendment.
And by failing to have written criteria for what it means to be totally and permanently disabled physically, the board deprives people of equal protection and leads to different outcomes for people in similar situations, the suit said.
There are at least 100 members who could be part of a class action, the lawsuit estimates.
“She's doing this for herself because she needs it, it but hopefully to clarify things for the other many county employees who need this, now or in the future,” said Tybe Brett, one of Ms. Donohue’s lawyers.
Ms. Donohue is currently receiving Social Security disability benefits.
Ms. Donohue and the class members are seeking disability pensions, compensatory damages and a court-mandated change of the retirement board’s practices, requiring it to adopt uniform eligibility standards for disability pensions.