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Petitioner,
Respondent.
Code Ann. §§ 27-8-101 et seq. and 27-9-101 et seq., and pursuant to common law, moves
this Court to reverse the decision of the Chattanooga Fire and Police Pension Fund
rendered on February 26, 2019, denying Mr. Joel's application for disability pension
benefits. Pursuant to Tenn. Code Ann. § 29-14-101 et seq, Petitioner asks the Court to
determine Petitioner's rights to benefits pursuant to the Fund and his right to continuing
health insurance coverage in light of his medical retirement due to his disability and to
declare the rights and obligations of the parties relative to Petitioner's application for
I. JURISDICTION
entity established by the State of Tennessee in a series of Private Acts starting in 1949,
thereby making it part of the Charter of the City of Chattanooga. The Act was
subsequently removed from the City Charter and was incorporated in to the Chattanooga
City Code. The purpose of the Fund is to benefit firefighters and police officers who
19 APR 24 Ail 11: 56
FILED
HAMILTON CO CLERK & MASTER
work for the City of Chattanooga. The City of Chattanooga is situated in Hamilton
County, Tennessee.
consisting of three active members of the Chattanooga Police Department, three active
Tennessee.
5. This Court has jurisdiction pursuant to Tenn. Code Ann. §§ 27-8-104 and
27-9-102 and also pursuant to common law to issue a Writ of Certiorari to review the
Chattanooga Police Department and the Chattanooga Fire Department with certain
unable to perform their sworn duties due to a disability. These benefits include coverage
for a Job Related Disability (JRD) for a Member who is "unable to perform his/her duties
as a Firefighter or Police Officer due to an injury or illness that is the result of the
performance of sworn duties." The JRD benefit is 60% of the disabled Member's Final
Average Salary.
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10. As set forth in the Chattanooga City Code,
11. The Fund and the City Code specifically recognize the possibility of a
Member becoming disabled and unable to perform his sworn duties as a result of a
mental health based disability, such as post-traumatic stress disorder ("PTSD"). The
Member can suffer a job-related disability and qualify for benefits as a result of a "mental
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i. that the Applicant [is] permanently mentally or
physically incapacitated from performing his/her
usual duties or any other duty in their respective
department?
13. Petitioner was a sworn officer with the Chattanooga Police Department
from May 22, 1998, until his medical retirement as a Lieutenant on November 7, 2018.
15. Petitioner's Final Average Salary as that term is defined for purposes of
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The Events of July 16, 2015
16. On July 16, 2015, Petitioner was a sworn officer of the Chattanooga Police
Department and was a first responder to an active shooter terrorist attack and mass
citizen who was born in Kuwait, conducted an active shooter terrorist attack on two
17. The Reserve Center Shooting Attack began shortly after 10:30 a.m. at the
Armed Forces Career Center on Lee Highway. There, Abdulazeez fired 30 to 45 shots
from inside his vehicle into the center, wounding a Marine. He then led police on a six
mile pursuit.
where he rammed his vehicle through a security gate. He drove to one of the center's
buildings, fired at it, then charged inside and continued firing, fatally wounding a Navy
sailor.
19. Abdulazeez then exited the building and entered a fenced motor pool area,
where he shot several Marines. Three to five minutes after the second shooting began, he
reentered the building, where he fired upon and was fatally shot by responding police
officers.
20. The Reserve Center Shooting Attack spanned a thirty-minute period. Four
Marines were killed on the scene. A Navy sailor was mortally wounded and died two
days later. A Marine recruiter and a police officer who was a first responder were
wounded.
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21. Around 100 rounds were fired by Abdulazeez, who was carrying an AK-
47-style semi-automatic rifle and a 9mm handgun, and was wearing a vest that could hold
"self-radicalized" terrorist, and that his actions were "motivated by foreign terrorist
organization propaganda."
23. Petitioner was in uniform and subject to call on the morning of July 16,
2015. At the time of the emergency calls for the Reserve Center Shooting Attack,
Petitioner had completed a 10 hour shift of service as a CPD Lieutenant, and had then
participated in a board meeting of the Fund. As a result, Petitioner had been awake for 27
hours. He nonetheless responded to the scene, and served as an Acting Captain on the
scene.
Police Officer who had been shot. This officer was a personal friend and former
the Navy sailor who had been grievously wounded. As a part of this evacuation,
Petitioner laid on top of the sailor to shield him as they drove backward through offset
barricades, and he became covered in the sailor's blood. He also spoke with the sailor,
who asked Petitioner whether he would survive his wounds. After the sailor was
evacuated away from the scene and into an ambulance, Petitioner then participated in the
search for a suspected second shooter and the systematic clearing of the building. This
occurred while the wounded were being evacuated and while the fire alarms were
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sounding. After it was determined that there was only one shooter, who had been
neutralized, Petitioner organized the scene, briefed the Mayor, and interacted with
officials from the FBI and NTSB, as well as local, regional, and national media. By the
time his service ended after the Reserve Center Shooting Attack, Lt. Joel had been awake
Center Shooting Attack were appropriate and were in conformity with his sworn duties as
Chattanooga Police Department (a Leadership Award and a Lifesaving Award) for his
26. On the day after the Reserve Center Shooting Attack, Petitioner learned
that the sailor, Petty Officer Second Class Randall Smith, had died of his wounds.
Petitioner also met with P02 Smith's widow and father and described to them his
interactions with P02 Smith and conveyed to them what turned out to be P02 Smith's
last words.
27. The Reserve Center Shooting Attack was unlike anything Petitioner had
previously experienced in his career as a police officer. The Reserve Center Shooting
Attack was extraordinary, unusual, and outside the normal human experience, both for
Police Officer.
28. The Reserve Center Shooting Attack was a Critical Incident/High Trauma
Event, as that term is defined by the Chattanooga Police Department's Policy Manual.
(PER - 15 — EMPLOYEE MENTAL HEALTH SERVICES), in that it was "an event that
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has a stressful, negative impact sufficient to possibly overwhelm the usually effective
29. The Reserve Center Shooting Attack was the first and, to date, the only
occasion that the Chattanooga Police Department has responded to an active shooter call
Attack, Petitioner began to suffer insomnia (being unable to sleep more than 2 hours per
night), to experience recurrent nightmares involving the shooting event and P02 Smith,
and to suffer a loss of appetite (losing almost 40 pounds.) He also began to suffer panic
attacks triggered by sounds (such as fire alarms) and smells (such as sheet rock dust).
During these panic attacks, which sometimes last as long as 30 minutes, Petitioner
and the fear "that he would die or go crazy." The fatigue and panic attacks are exhausting
and debilitating, have severely disrupted Petitioner's mood and his ability to concentrate,
31. As a result of his response to, exposure to, and actions during and in the
aftermath of The Reserve Center Shooting Attack, Petitioner suffered a mental injury or
illness that has rendered him unable to perform his sworn duties as a police officer.
disciplinary event arising from his intoxication which led to an Internal Affairs
investigation. Petitioner was not arrested or charged with the commission of any crime,
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Craig Joel's Permanent Chronic PTSD, his Permanent Disability,
and his Application for Disability Benefits
Chattanooga's Employee Assistance Program, and met with social worker Freda Cook
LCSW.
medical examination performed by Dr. Keith Caruso, MD., a medical doctor licensed to
practice medicine in Tennessee and a duly qualified expert selected by the City of
Chattanooga. Dr. Caruso diagnosed Petitioner with Chronic Post Traumatic Stress
Disorder, concluded that the PTSD was caused by "traumatic exposures in the line of
duty," and explained that "recognition of the injury was delayed by the non-physical
nature of the trauma." Dr. Caruso opined that the disability caused by PTSD was
permanent and rendered Petitioner permanently unable to perform the duties of a police
officer, and advised Petitioner to take medical retirement from the Chattanooga Police
Department. In his report, Dr. Caruso discusses multiple traumatic exposures, but places
significant focus on the Reserve Center Shooting Attack. Dr. Caruso also opined that
disability— PTSD. This diagnosis was rendered by Dr. Caruso within a reasonable degree
of medical certainty, and Dr. Caruso's opinions were expressed within a reasonable
the City of Chattanooga, for worker's compensation benefits. Petitioner's claim for
worker's compensation benefits was based upon Petitioner's suffering a mental injury by
accident caused by the workplace events of July 16, 2015 — the Reserve Center Shooting
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Attack. The City of Chattanooga has accepted this claim for worker's compensation
benefits, has assigned him to a treating physician (Dr. Glynn Newman, MD), and has
36. On April 19, 2018, Petitioner submitted an application to the Fund for
JRD benefits based upon his diagnosis of Permanent Chronic PTSD. As a part of his
application, Petitioner referenced and attached a copy of the City of Chattanooga's First
Report of Occupational Incident/Injury/Ha7ard form, which identifies July 16, 2015 (the
Reserve Center Shooting Attack) as the date of the injury and the event causing
Petitioner's disability.
37. In connection with his application for JRD benefits, Petitioner has
cooperated with the Fund, has provided the Fund with access to his medical records, and
has honored the Fund's request to submit to multiple independent medical examinations.
38. On December 19, 2018, the Fund sent Petitioner for another independent
medical examination by neuropsychologist Dr. Pamela Auble. Dr. Auble confirmed Dr.
Caruso's diagnosis of Chronic PTSD, and opined "The causes of the PTSD were the
"There were some symptoms prior to 2015, but the incidents in the summer of 2015
caused a significant worsening." Dr. Auble opined that Petitioner's PTSD condition was
earlier that day with another CPD officer who was also a first responder to the Reserve
Center Shooting Attack. Dr. Auble further opined that Petitioner's disability was
permanent and prevented him from performing his duties as a police officer, and that
"more likely than not that most of the cause of 2/2 incident was PTSD." This diagnosis
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was rendered by Dr. Auble within a reasonable degree of medical certainty, and Dr.
39. On January 30, 2019, Dr. Glynn Newman, MD., a medical doctor licensed
to practice medicine in Tennessee agreed with Drs. Caruso and Auble regarding
Petitioner's permanent disability and stated his opinion that, due to Chronic PTSD,
Petitioner was "unable to return to work as 'street officer' due to permanent condition."
This opinion by Dr. Newman was expressed within a reasonable degree of medical
certainty.
40. On February 26, 2019, the Fund held a hearing regarding Petitioner's
evidence that Petitioner was suffering from a job-related permanent disability as a result
of the Reserve Center Shooting Attack, it announced its decision to deny the application
for benefits. The Fund issued its written denial of Petitioner's application for JRD
benefits that same day. No basis for the denial is stated in that document.
41. Upon information and belief, in connection with its decision to deny
Petitioner's application for benefits, the Fund improperly received evidence and
and the subsequent Internal Affairs investigation. This improper evidence tainted the
Fund's decision. This was improper, because no determination had been reached in the
investigation, and the investigation had been administratively closed with no finding.
condition that prevents him from performing his sworn duties as a police officer.
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42. Two members of the Fund's five member panel that heard evidence
regarding and made the Fund's decision to deny Petitioner's application for disability
benefits — CPD Captain Nathan Vaughan and CPD Sergeant Joe Shaw — serve in the
Petitioner's off duty conduct on February 2, 2018. At the time of the events of February
2, 2018 and also at the time of the Fund hearing, Captain Vaughn was in charge of the
Professional Standards Division of CPD, which oversees CPD's Internal Affairs Unit. At
the time of the Fund hearing, Sergeant Shaw was an investigator with the Internal Affairs
Unit, and was under the command of Captain Vaughn. Upon information and belief,
Captain Vaughan and Sergeant Shaw were impermissibly biased against Petitioner, had a
conflict of interest, and should have recused themselves from the panel. Upon further
information and belief, Captain Vaughan and Sergeant Shaw shared information
regarding the investigation with other members of the panel, expressed their opinions
about Petitioner's conduct, and improperly influenced the panel's deliberations. The
presence and participation of these two members on the panel was improper, was
contrary to the Fund's own rules and procedures, and tainted the Fund's decision.
43. Police officers and firefighters who retire or who become unable to work
due to a disability receive continuing health insurance coverage through the City of
Chattanooga's group health plan by virtue of their status as members of the Fund.
44. Because Petitioner was forced to retire early due to his disability, his
health insurance coverage through the City of Chattanooga's group health insurance plan
ended.
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45. Because Petitioner's application for disability benefits was denied, he did
not receive and has not received those continued health insurance benefits, and he has
been deprived of health insurance coverage, which he should have continued to receive as
Writ of Certiorari
46. Petitioner now petitions this Court to overturn the decision of the Fund
Such party shall, within sixty (60) days from the entry of
the order or judgment, file a petition of certiorari in the
chancery court of any county in which any one (1) or more
of the petitioners, or any one (1) or more of the material
defendants reside, or have their principal office, stating
briefly the issues involved in the cause, the substance of the
order or judgment complained of, the respects in which the
petitioner claims the order or judgment is erroneous, and
praying for an accordant review.
48. Tennessee law provides a judicial review of the Pension Fund's denial of
benefits in Tenn. Code Ann. § 27-8-101, et. seq. and/or Tenn. Code Ann. §27-9-101, et
seq. The standard for such review is established at Tenn. Code Ann. § 4-5-322 (IV, which
provides as follows:
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3) Made upon unlawful procedure;
49. It is the contention of the Petitioner that the denial of his disability benefits
was:
50. Petitioner further contends that the Fund did not follow its own procedures
51. Additionally, Petitioner would show that the denial of his application for
disability benefits was unsupported by evidence which is both substantial and material in
Declaratory Relief
52. Petitioner asserts that he had and has a vested interest in his Benefits
pursuant to the Fund, and that his disability and retirement benefits and his continuing
eligibility for health insurance coverage upon disability or retirement were a part of his
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contract of employment as a police officer with the Chattanooga Police Department and
53. Petitioner asserts that he holds a vested interest in this property right under
the Due Process Clause of the United States Constitution and under the Tennessee
Constitution.
Act, Tenn. Code Ann. § 29-14-101 et. seq., this Court should determine Petitioner's rights
to benefits pursuant to the Fund and his right to continuing health insurance coverage in
light of his medical retirement due to his disability and should declare the rights and
Court will:
1. Issue a Fiat directing the Clerk & Master to issue a Writ of Certiorari to
Respondent, requiring Respondent to certify, make, and forward to the
Clerk and Master a record of the hearing and its specific Order at the end
of the hearing via transcript and technical record.
2. Review the entire record, taking such additional proof as may be necessary
and proper and excluding from consideration testimony and exhibits that
are part of the record but should not properly have been considered.
3. Find that the administrative decisions of the Fund and its Board members
were prejudicial to the rights of Petitioner.
4. Find the action of the Fund was in violation of the policies, codes and
statutes cited in this Petition.
6. Order Respondent to reimburse Petitioner for his attorney's fees and the
costs of this action;
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7. Award Petitioner prejudgment interest; and
8. Award Petitioner any such other, further, and general relief as the Court
deems appropriate in this case.
By
illiam R. Hannah, BPR #0167
One Central Plaza, Suite 800
835 Georgia Avenue
Chattanooga, TN 37402
Phone: (423) 639-2204
Fax: (423) 648-7897
Email: whannah@ehhlaw.com
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IN THE CHANCERY COURT OF HAMILTON COUNTY, TENNESSEE
Petitioner,
v. Docket No.
Respondent.
VERIFICATION
STATE OF TENNESSEE )
)
COUNTY OF HAMILTON )
I, Craig William Joel, after being duly sworn in accordance with law, make oath
that the statements appearing in the foregoing First Petition for Writ of Certiorari andfor
Declaratory Relief are true to the best of my knowledge, information and belief.
otary Public
My commission expires: 572----2-°?-0