MR. THERIAULT

v.

BOARD OF TRUSTEES OF THE CITY OF TAMPA PENSION FUND FOR POLICE OFFICERS AND FIREFIGHTERS

the petition, appendix,¹ response, reply, and being otherwise fully informed, the court finds that Respondent Board of Trustees of the City of Tampa Pension Fund for Police Officers and Firefighters did not rely on competent, substantial evidence when it denied Petitioner’s line of duty disability application because its decision was based on medical evaluations from an incomplete Disability Medical Board, as defined in Pension Board Policy No. 401, and testimony that does not support the Board’s conclusion. Moreover, in relying on evaluations from an incomplete Disability Medical Board, the Board did not follow its own policies, adopted pursuant to local ordinance and state law, and, thus,

Accordingly, the petition is granted and the decision below is quashed. Procedural History Mr. Theriault (Theriault) served as a firefighter with the City of Tampa Fire Rescue Department beginning February 1, 2016. While lifting a patient onto a stretcher on January 9, 2022, he suffered a back injury, which he reported to his supervisor, and for which he received medical attention, the same day. (Doc. 7, pp. 225-28). Theriault applied for a disability retirement to the Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Tampa (the Board) on May 30, 2023. After Theriault submitted his application, the Board’s Medical Director, Dr.

P. Mark Glencross, reviewed Theriault’s application, and, based on his review, recommended that Theriault undergo three independent medical examinations (IMEs). Dr. Glencross directed the Board to select three providers for the IMEs: “one specialist in advanced pain procedures such as a Physiatrist, and two spinal surgeons (orthopedic or neurosurgery)[.]” Although the Board properly directed Theriault to two orthopedic spine specialists, Dr. Dinenberg and Dr. Samad, the Pension Fund erroneously directed Theriault to see a psychiatrist, Dr. Wagoner, rather than a physiatrist or other specialist in advanced interventional pain procedures.

On July 26, 2024, Dr. Dinenberg found that Theriault was not able to perform his duties as a firefighter but could not say with certainty whether the disability would be temporary or permanent. (Doc. 6 at 232).

4. Does the applicant have a disability? If so, do you expect his/her disability to be permanent or temporary in duration? The examinee does have a disability. It is too soon in the postoperative period from this examinee’s L5-S1 decompression and instrumented fusion, to determine if he has a permanent disability. At this point, it is felt that he has a temporary disability.

5. Will the applicant be permanently precluded from performing the “regular and continuous” duties of a Firefighter? If you feel the applicant can no longer perform the “regular and continuous” duties of a Firefighter, please provide a statement outlining your reasons for arriving at this conclusion. As noted above, it is too early in this examinee’s postoperative period to determine if he is permanently precluded from performing the regular and continuous duties of a firefighter. He has had a decompression and instrumented fusion surgery on May 20, 2024. It is not felt that he is able to perform the regular and continuous duties of a firefighter at this time, though this is a temporary restriction. . . .

7. A statement by you indicating whether you feel the present physical condition of the applicant is due to an on-the-job injury or some other circumstance not related to his/her occupation. Please review and consider certain Florida Statutes regarding presumptions when preparing your statement. Any applicable Florida Statutes will be provided with this application and are listed below. The present physical condition is due to the onthe-job injury and is solely related to the examinee’s occupation. (Doc. 6 at 232-233).

Six weeks later, on September 10, 2024, Dr. Samad found that “Mr. Theriault is permanently precluded from performing the ‘regular and continuous’ duties of a firefighter. He can no longer perform the ‘regular and continuous' duty of a firefighter,” and that he “believe[s] with a reasonable degree of medical certainty that there is no additional treatment that will restore or allow Mr. Theriault to perform ‘regular and continuous’ duty of a firefighter.” (Doc. 6 at 250).

Theriault also underwent a psychiatric evaluation from Dr. Wagoner, as directed by the Board, on August 13, 2024. In his report, Dr. Wagoner stated that Theriault’s “primary reasoning for his disability focuses on his physical symptoms, which are best evaluated by an expert in that particular field,” and that “it is beyond [Dr. Wagoner’s] area of expertise to opine on if [Theriault’s] physical symptoms will improve.” (Doc. 6 at 246).

Accordingly, Dr. Wagoner did not provide any relevant insight or findings about Theriault’s back injury. As Medical Director, Dr. Glencross compiled a review of the IMEs on September 20, 2024. Dr. Glencross’s review stated “[t]he opinion of the two orthopedic IMEs differed in opinion on permanency, the later IME felt the disability was permanent. The third IME claimed no mental health disability. These IME reports are sufficiently complete to provide to the Board.” (Doc. 6 at 255).

Legal Standard Under Florida law, the scope of issues that are reviewable under first-tier certiorari review of quasi-judicial decisions is limited as to whether: (1) the local government afforded Petitioner due process; (2) the local government observed the essential requirements of law; and (3) the decision is supported by competent and substantial evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).

That Petitioner received adequate due process is not an issue in this case. Competent, Substantial Evidence In its order denying line of duty disability retirement, the Board relied on Pompano Beach Police & Firemen's Pension Fund v. Franza, 405 So. 2d 446 (Fla. 4th DCA 1981).

In that case, “[a]t a hearing before the Board of Trustees of the Pension Fund three doctors testified and the Board had the benefit of a report of a fourth doctor.” Id. at 447.

The Board stated that it “agreed with Dr. Dinenberg, who opined that [Theriault] is not totally or permanently disabled.” The Board went on to find: [T]he testimony or opinion of one medical expert, even if in conflict with other medical testimony, is sufficient for the Board of Trustees to rely upon. The Board found the medical opinions of Dr. Dinenberg and Dr. Wagoner to be most convincing. (Doc. 6 at 2).

Franza is distinguishable from the present case. The testifying medical experts in Franza gave directly conflicting opinions as to Mr. Franza’s level and permanency of disability. In this case, there is no directly conflicting expert testimony in the record. Dr. Dinenberg and Dr. Samad agreed that Theriault was unable to perform his duties as a firefighter. At the time of his evaluation, Dr. Dinenberg could not say with certainty whether Theriault’s disability was permanent. Six weeks later, Dr. Samad stated with a reasonable degree of medical certainty that Theriault’s disability was permanent. Dr. Wagoner declined to opine as to Theriault’s physical disability due to lack of expertise. Unlike Franza, where the board heard expert testimony from four independent physicians, in this case the Board received expert testimony from two independent physicians and lay testimony from a third physician, as summarized by a physician in the Board’s employ.

Assuming for the sake of argument that the Board in this case had relied on IMEs from three qualified experts who reached different conclusions, the Board would be correct in saying that it may rely on the testimony of one expert despite there being directly conflicting testimony from two other experts. The Court may not substitute its judgment for that of the Board where competent, substantial evidence supports the Board’s decision. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (court … is not entitled to reweigh the evidence or substitute its judgment for that of the agency.”) The Court is tasked, however, with determining whether any competent, substantial evidence supports the Board’s decision. In other words, the Court must determine whether the evidence supporting the Board’s decision is competent and substantial. This is not the same as reweighing, where the Court considers multiple pieces of competent, substantial evidence and finds one more credible than another. “[W]eight and sufficiency of evidence are two separate concepts. Specifically, sufficiency tests the adequacy and credibility of the evidence, whereas weight refers to the balance of the evidence.” Wiggins v. Fla. Dep't of Highway Safety & Motor Vehicles, 209 So. 3d 1165, 1173 (Fla. 2017).

Whether the evidence is sufficient is reviewed de novo. Wiggins, 209 So. 3d at 1166, and Rosa v. Heredia, 419 So. 3d 331, 332 (Fla. 5th DCA 2025) citing Robinson v. Robinson, 257 So. 3d 1187, 1190 (Fla. 5th DCA 2019) (additional citations omitted).

The Court finds that Dr. Wagoner’s testimony is not competent, substantial evidence for the purpose of determining whether Theriault’s back injury constitutes a permanent disability. By his own admission, Dr. Wagoner is a psychiatrist and not an expert in physical injuries or disabilities. Even if the Board were to consider Dr. Wagoner an expert, he specifically declined to give an opinion as to the state of Theriault’s physical condition. In addition, the Board failed to follow its own policy and its medical director’s recommendation that Petitioner be evaluated by three competent experts.

The Board’s enumerated reason for denying the pension was the belief that Theriault’s disability is either not complete or not permanent. In its Response, the Board now appears to be arguing that it denied or would have denied the pension on the belief that Theriault was not injured in the line of duty. The Board is not permitted to present a new reason for denying the application that was not included in its original decision. After reviewing the record in its entirety, the Court finds that no competent, substantial evidence supports the Board’s conclusion that “[Theriault] is not totally or permanently disabled.” (Doc. 6 at 2). Essential Requirements of the Law

Section 175.021, Florida Statutes, establishes the right to minimum benefits for firefighters. Section 175.191, sets forth the criteria for total disability.² The Tampa City Code provisions establishing its

Petitioner argues that “Respondent failed to refer [Theriault] to the three physicians required not only by the code, but as confirmed with specificity by Dr. Glencross’ June 28, 2024 directive . . . Further, Respondent relied upon the opinion of a psychologist to whom [Theriault] was improperly referred, in violation of the code,³ and even disregarded all evidence regarding the cause of [Theriault’s] injury in order to reach its own self-serving conclusion that [Theriault] is not entitled to disability retirement benefits.” (Doc. 21 at 18).

On May 2, 2025, the Board filed a motion to supplement the record, asking that the Court take judicial notice of the Board’s Medical Director Dr. Glencross’ resume, “which provides that he is a physiatrist,” and “contradicts Petitioner’s position that Theriault was not examined by a physiatrist.” (Doc. 24 at 1). The Board explained that “[t]he job of the Board’s Medical Director, in part, is to review the applicant’s post-offer examination, medical and personnel records, disability application and the Independent Medical Examinations (“IME”) and provide a summary to the Board of Trustees.” (Doc. 24 at 1). The Board’s motion was granted. (Doc. 25). As the Board’s Medical Director, Dr. Glencross is not an independent expert. Per the Board’s policy number 401, “[t]he Disability

useful and efficient service as a firefighter; and a firefighter will be considered permanently disabled if, in the opinion of the board…he…is likely to remain so disabled continuously and permanently from a cause other than is specified in subsection (3).”

Notably, “[t]he Director of the Medical Board shall not be an examining member of the Disability Medical Board (Initial or Reevaluation) but shall present the results of initial disability evaluations by the Disability Medical Board in person to the Board of Trustees.” (Doc. 16 at 26).

In other words, Dr. Glencross was tasked with selecting the physicians to perform IMEs and to summarize those IMEs but was expressly prohibited from presenting his own examination as evidence. Although it is strictly true that Theriault was examined by a physiatrist, a physiatrist did not perform the required IME in this case.

The Board argues that “nothing close to a ‘miscarriage of justice’ occurred below” because “pension boards, as triers of fact, confronted with differing medical opinions and inconsistent evidence of the claimed disabling injury, are best situated to determine which evidence is most convincing.” (Doc. 15 at 29).

This argument fails to address Theriault’s assertion that the utter failure to abide by the Code’s requirements, as set forth in more detail by Dr. Glencross’s initial recommendation made in accordance with the Board’s policies, in and of itself amounts to a departure from the essential requirements of the law. As outlined above, Dr. Glencross ordered that Theriault be examined by two surgeons and a physiatrist. Dr. Glencross was aware that the code required him to send Theriault to three independent physicians in the relevant specialties. Dr. Glencross provided the summary of the IMEs to the Board, and in doing so must have become aware that Theriault was sent to a psychiatrist whose IME would be virtually useless. Rather than call attention to this obvious error and lack of a third opinion from a qualified specialist, Dr. Glencross included Dr. Wagoner’s evaluation in his summary as if no mistake had occurred. Although the Court cannot read Dr. Glencross’ mind, based on the entirety of the record, what likely began as an honest mistake appears to have shifted into something more deliberate when Dr. Glencross wrote and presented his summary of the IMEs, including Dr. Wagoner’s report without commenting on its complete lack of relevance. To the contrary, Dr. Wagoner stated that the “IME reports [were] sufficiently complete to provide to the Board.” Conclusion

Pension Board Policy Nos. 401 and 402 clearly require that disability evaluations be performed by a board made up of three “licensed specialists in the related field of an individual’s disability,” and that “[i]n reviewing applications for disability retirement, the Board of Trustees shall place greater weight on objective medical evidence than on subjective complaints.” (Doc. 16 at 26, 29). The Board cannot knowingly and deliberately flout the law and then turn around and argue, in essence, that its actions were excusable or permissible.

The Court retains jurisdiction to rule on Petitioner’s motion for attorney’s fees filed April 23, 2025.

Based on the foregoing, the Board’s Administrative Order Denying Line of Duty Disability Retirement is QUASHED. ORDERED in Tampa, Hillsborough County, Florida, on January 20, 2026.

____________________________________________ EMILY A. PEACOCK, Circuit Court Judge

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