RI Supreme Court rules against firefighter in disability pension case

The court found that John Sauro is not entitled to his $3,902-a-month pension because his shoulder injury from 1998 is healed

By Jacqueline Tempera
The Providence Journal 

PROVIDENCE, R.I. — The Rhode Island Supreme Court ruled against Providence firefighter John Sauro on Tuesday in his decades-long disability pension case.

Sauro — who, in court testimony was called "the poster boy for pension fraud" — is not entitled to his $3,902-a-month, tax-free accidental-disability pension because his 1998 shoulder injury is healed, the justices ruled.

He is, according to the analysis of a Boston doctor, unable to return to the job because of psychological and colorectal maladies that bar him from being placed on a list of firefighters able to return to duty.

The argument made by Sauro's lawyer, Joseph Penza, that Sauro be placed on that list is "patently absurd," the justices said. Penza's defense rested on a city ordinance that deals with disability pensions. If placed on the list, Sauro, who turns 55 in March, could retire while waiting to be called back with full benefits, credited for 20 years on the force.

"Allowing plaintiff perpetual accidental disability pension benefits under these circumstances runs contrary to the ordinance's objectives ...," the justices wrote in the decision. "It would also be patently absurd, in light of the board's finding that plaintiff is disabled, to place a disabled firefighter on a list for a position that he is unqualified to perform."

In his dissent, Associate Justice Francis Flaherty wrote that he agreed with Penza, that the city ordinance should be applied literally and Sauro should be added to the firefighters list.

The Journal could not reach Penza for comment Tuesday night, but he told WPRI he was "disappointed" with the high court's decision. Penza told WPRI it was "a classic case of bad facts making bad law."

"As Judge Flaherty said in the dissent, an unattractive fact pattern is not enough to expand the powers of the board, and I think that's what the majority did in this case," Penza told WPRI. "But that's something we have to live with because that's what the Supreme Court decided."

Sauro, who hasn't worked for the city since 1998, sought a full pension, credited for 20 years on the force. Tuesday's ruling is perhaps the last in a long string of court battles, marked by contradictory testimony from Sauro.

Sauro's right shoulder was injured on July 17, 1998, while he was carrying an obese man down a flight of stairs. At that time, three physicians agreed he was permanently and totally disabled from working as a firefighter. They agreed the injury was job-related.

Sauro began collecting an accidental-disability pension in 2000, which provided $3,902-a-month, tax-free accidental-disability pension. This is a higher figure than firefighters received under other types of pensions.

In April 2011 WPRI-TV filmed Sauro lifting weights and doing pull-ups at the gym, despite the shoulder injury that doctors agreed should permanently end his work as a firefighter. This began a fight between Sauro and the city.

The Retirement Board, using a process to recertify pensions, asked that Sauro be reexamined by Dr. Brian McKeon in Massachusetts in December 2013. Sauro did not show up, telling the board that he was unable to leave his bed because of both "physical and psychological illness," according to the ruling.

The city hired a private investigator to surveil Sauro, who was seen driving and shopping at various retail stores. The board suspended Sauro's accidental-disability-pension on Dec. 18, 2013.

Sauro sought to overturn that decision in July 2014, requesting a preliminary injunction to restore the benefits, but was denied. Then Sauro went to the doctor, and his pension was reinstated immediately.

When Sauro visited McKeon, the doctor found he could, theoretically, fight fires. But McKeon said Sauro convinced him he was not fit to return to work because of "unrelated psychological and colorectal illnesses." Sauro brought volumes of medical documents, stacks of MRIs, handwritten notes and other records to that meeting, according to the ruling.

Based on that information, the board discontinued Sauro's accidental-disability-pension again. He filed an appeal in August 2015, which was referred to the Superior Court.

"Before the trial justice — in a remarkable turn of events — plaintiff argued that he had fully recovered from his shoulder injury and all other maladies, was no longer disabled, and was ready to return to work," the Supreme Court wrote in its ruling.

The city objected, saying the court "could not ignore" that Sauro had testified under oath many times that he had twelve colorectal surgeries, he could not stand for long periods of time during trial, and he claimed to be bedridden.

"It is just convenient that ... we hear for the first time that those disabilities are no longer present. Miraculous," the city's lawyer argued.

The trial justice ruled in Sauro's favor, but the city appealed, and the case landed at the Supreme Court.

The issue, justices wrote in the decision, lies in the city ordinance that, in part, states: "If the examination indicates that the disability of the pensioner has been removed and said pensioner is under the age of service retirement, his or her name shall be placed on such appropriate lists of candidates as are prepared for appointment to a position in his department ..."

While the trial justice interpreted the rule in Sauro's favor, the Supreme Court does not.

"According to the clear and unambiguous language of the city ordinance, a candidate must be 'prepared for appointment' and be 'stated to be qualified' for a position in the department," according to the ruling. "... Here, based on his clearly established disability plaintiff was neither prepared for appointment nor was he qualified to resume service in the fire department."

The opinion of the trial justice was "erroneous, overlooked material evidence, and was clearly wrong," justices concluded.

Sauro, though, is not without an option.

The Supreme Court justices suggest he return to the board and demonstrate he is fit to return to duty, or that he should qualify for an ordinary disability pension.

Copyright 2018 The Providence Journal 

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