This assertion is absolutely false and the misrepresentation of this fact is done knowingly and willingly by the City Solicitor. I was determined to be medically disqualified using the physical standards for firefighters, as prescribed in NFPA 1582 Section 9.9.8.1 Spine Structural Abnormality, Fracture, or Dislocation. These policies and standards were accepted by the Baltimore City Fire Department and utilized by the City of Baltimore to deny me from continuing the further performance of my duties. If the entire medical record would have been introduced, and the probative evidence given the weight required by law, it would demonstrate that I was ready to return to duty, as I had felt as though I recovered sufficiently to return to my duties in the abbreviated time allowed due to the incorrect classification of this injury being a Non-Line of Duty occurrence by the City of Baltimore. I reported this to my doctor who noted that “Brian is anxious to return to work, so I think it is appropriate to do so.” I then reported to the medical clinic for the City of Baltimore and informed Dr. Lyons that Dr. Rybock was preparing to release me to duty. Dr. Lyons then consulted with the medical director for the City, Dr. James Levy, who determined that I was to be medically disqualified from returning to the further performance of my duties as a firefighter. I reported this to my doctor who noted in his next report the fact that I was being retired.
The hearing examiner, upon the occurrence of the hearing, asked if a Functional Capacity Examination, or an FCE, was performed in association with the determination of the City to medically disqualify me from the further performance of my duties. An FCE was not submitted because the City of Baltimore never scheduled me to be examined prior to my "Cut Off" date of December 28, 2002. An FCE was conducted in March of 2003, as part of the Vocational Rehabilitation process. I offered that an FCE was conducted but well after the Cut Off date and was inappropriate to utilize at the hearing, as evidence shows that I was awaiting to have a further surgery for the injury at the time the FCE was conducted and the City failed to submit any evidence related to it to the hearing examiner.
The City Solicitor goes on to assert:
As I was awaiting the extensive spinal reconstructive surgery which took place in October of 2003, it is inconceivable that anyone could demonstrate anything other than self-limiting behavior, in an examination to test his capacity to perform work, just prior to surgery. As is reflected in the letter, “the FCE occurred 3/11/03,” well after my “Cut-Off” date of 12/28/02. As this FCE was conducted for the purpose of the Vocational Rehabilitation plan, to assess my physical ability to do work, the representatives who performed this examination were not aware of the fact that I was awaiting to have surgery at the time of that examination because this information was willfully withheld from them.
I was still subjected to the administrative hearing process, despite being under the care of my doctor, as I was recovering from extensive spinal surgery that included the fusing of the vertebral discs that were affected. This evidence was not only withheld from the administrative hearing examiner, but other professionals involved his case, despite the fact that the City of Baltimore was paying the costs of the Vocational Rehabilitation program. This permits the Baltimore City Solicitor to fabricate the record as they need to in order to obtain a ruling that is favorable to them. This information was withheld from the hearing examiner for that exact purpose.
The City Solicitor continues: