UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2111

September Term, 2012

EMPLOYEES' RETIREMENT SYSTEM OF BALTIMORE COUNTY

v.

CHARLES DAWSON

Kehoe, Hotten, Nazarian,

JJ.

Opinion by Nazarian, J.

Filed: June 18,2014

Charles Dawson's epilepsy forced him to leave his job with the Baltimore County

Bureau of Highways. The Board of Trustees for the Employees' Retirement System of

Baltimore County ("ERS Board") denied Mr. Dawson's request for disability retirement,

classifying Mr. Dawson's failure to disclose his seizure disorder history as a failure to render

honorable and faithful service to the County. The Board of Appeals for Baltimore County

("County Board") affirmed. Mr. Dawson sought judicial review in the Circuit Court for

Baltimore County, which reversed after holding that "the decisions of the ERS Board of

Trustees and the Baltimore County Board of Appeals were based entirely upon the erroneous

conclusion of law that Mr. Dawson's medical history could be released and investigated for

its truthfulness in order for him to obtain retirement benefits." The ERS Board appeals the

circuit court's decision, but has not briefed or argued the fundamental premise of the circuit

court's decision, i.e., that the County Board violated the Americans with Disabilities Act of

1990,42 U.S.C. § 12112 (1990) ("ADA"), when it obtained and relied upon Mr. Dawson's

medical records. For the reasons we explain below, we affirm.

I. BACKGROUND

Mr. Dawson obtained a commercial driver's license in 1990 and worked various

construction jobs that required him to drive and operate trucks. Beginning in 1992, Mr.

Dawson underwent periodic Department of Transportation ("DOT") physical examinations

to maintain his license. At these physical examinations, Mr. Dawson filled out medical

history forms and had a checkup by an administering doctor. Mr. Dawson never listed

seizures on the history forms in so many words, although, as we discuss next, he did reveal

that he experienced occasional "auras" that he described as a "butterfly feeling."

In 1994, Mr. Dawson had an "incident" that required a trip to the emergency room and

a brief hospital stay. The doctors treating Mr. Dawson did not tell him that he had a seizure

disorder, but prescribed him anti-seizure medicine, instructed him to maintain regular contact

with doctors to monitor his condition, and restricted him from driving for three months. The

driving restriction was later modified to allow him to drive so long as he pulled over if he

experienced an "aura feeling." Between 1994 and 2009, Mr. Dawson followed these

instructions and experienced occasional episodes, but nothing as severe as his 1994 event.

In October 2000, Mr. Dawson applied for and obtained a job with the Baltimore

County Department of Public Works (the "County"). During his work with the County, Mr.

Dawson performed an array of construction work, such as digging trenches, cutting grass,

paving roads, and operating trucks and other heavy equipment. These duties required Mr.

Dawson to have and maintain a commercial driver's license. During subsequent physical

examinations to evaluate his fitness as a driver, Mr. Dawson denied having experienced any

seizures, but revealed and characterized his earlier episodes as "auras."

In 2009, Mr. Dawson experienced a seizure while at work. His supervisor directed

him to take a drug test and obtain approval from a doctor before returning to work. After an

examination, a doctor informed Mr. Dawson that he had epilepsy and could no longer operate

heavy equipment.

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After receiving this restriction, Mr. Dawson also received two letters from his

employer acknowledging his inability to perform the essential functions of his job. The

letters identified different courses of action that Mr. Dawson could take regarding his

employment with the County, one of which was to apply for disability retirement status. Mr.

Dawson applied for disability retirement on July 8,2009, and resigned from his job with the

County on August 18, 2009.

On April 12, 2011, the ERS Board considered Mr. Dawson's disability claim and

denied it on the ground that Mr. Dawson had concealed his seizure disorder and, therefore,

had failed to provide honorable and faithful service to Baltimore County. The ERS Board

relied on Mr. Dawson's medical records, including the records of his DOT physicals, and

concluded that his failure to disclose a seizure disorder during his recertification physicals

was a deceptive practice that endangered Mr. Dawson, his co-workers, and the public.

Mr. Dawson appealed the decision of the ERS Board to the County Board. After a

hearing on November 30, 2011, the County Board affirmed the ERS Board's decision on

February 22, 2012, citing Mr. Dawson's failure to disclose his medications as effectively

misleading the County about his physical ability to perform his job duties safely.

Mr. Dawson appealed the decision of the County Board to the Circuit Court for

Baltimore County. On appeal, Mr. Dawson argued that the County Board had no right to

inquire about his medications or to review his medical records in search of undisclosed

medical conditions. The circuit court agreed:

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The release of Mr. Dawson's medical history, including his DOT physicals, workers' compensation claims and Dr. Oroszlan's lengthy report, to the ERS Board of Trustees does not fall within any of the permissible uses of this confidential information under the ADA. That Mr. Dawson signed a release permitting access to his medical records did not relieve the county of its obligation to comply with the ADA. A release of information does not give the County permission to violate an employee's rights under the ADA. Moreover, the release was signed as part of a process required by the County for employees to obtain retirement benefits. The county cannot now use the release it required Mr. Dawson to sign to justify its own violation of federal law. Accordingly, the decisions of the ERS Board of Trustees and the Baltimore County Board of Appeals were based entirely upon the erroneous conclusion of law that Mr. Dawson's medical history could be released and investigated for truthfulness in order for him to obtain retirement benefits.

From there, and apparently putting aside the ADA violation, the circuit court concluded that

the County Board's "assertion that Mr. Dawson falsified medical records is unsupported by

the evidence." The court disagreed that references to a seizure condition in the medical

records proved that Mr. Dawson knew that he previously had seizures:

It may be that at some point prior to 2009 Mr. Dawson should have known that his auras were mild seizures but should have known is not an appropriate standard to apply in determining whether someone committed an intentional deception by deliberately withholding relevant information from his employer or, as the [County] Board put it, "falsifying] records." There is no direct evidence that Mr. Dawson purposely misled examining physicians or falsified records. On the contrary, his description of his symptoms has been consistent throughout time. Mr. Dawson's testimony before the [County Board] describing his symptoms was nearly identical to the description recorded by Dr. Samuels in 2007. What has not been shown is what information was given to Mr. Dawson during those

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examinations regarding the diagnostic ramifications of the symptoms he described. The [County Board] did not cite any evidence that Mr. Dawson purposely misled Concentra or anyone else about his medical history.

* * *

After carefully reviewing the medical history cited by the [County Board] and the alleged falsifications, the Court finds the CBA's findings were not supported by substantial evidence. No reasoning mind could have reached the factual conclusion that the agency reached in Mr. Dawson's case.

And finally, the court held that "even if Mr. Dawson had falsified his medical forms, these

isolated lapses of judgment do not amount to substantial evidence that he failed to render

'honorable and faithful' service." The ERS Board filed a timely notice of appeal.

II. DISCUSSION

The ERS Board presents one broadly worded question that, on this record, raises two

issues.1 We examine, first, the circuit court's conclusion that the ADA barred the County

Board's use of Mr. Dawson's medical information, a decision that the ERS Board has not

challenged on appeal. This sets the evidentiary backdrop, against which we examine, second,

whether the decision of the County Board was based on substantial evidence, and hold that

it was not.

1 The ERS Board's brief lists one Question Presented:

1. Whether the 2/22/2012 decision by the County Board of Appeals is based upon a correct interpretation of the law and supported by substantial evidence in the record below?

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Although the ERS Board appeals from the judgment of the circuit court, we perform

precisely the same role as the circuit court in reviewing that Board's decision. Emps. ' Ret.

Sys. v. Brown, 186 Md. App. 293, 310 (2009) (quoting Dep 't of Health & Mental Hygiene

v.Shrieves, 100 Md. App. 283,303-04 (1994)); see also Halici v. CityofGaithersburg, 180

Md. App. 238,248 (2008) ("On appellate review of the decision of an administrative agency,

this Court reviews the agency's decision, not the circuit court's decision." (citing Anderson

v. Gen. Cas. Ins. Co., 402 Md. 236, 244 (2007))). Put another way, "we look not AT the

circuit court decision but THROUGH it." Emps. ' Ret. Sys., 186 Md. App. at 310 (emphases

in original) (citing People 's Counsel for Bait. Cnty. v. Country Ridge Shopping Ctr., Inc.,

144 Md. App. 580, 591 (2002)). We generally defer to the findings of fact and factual

inferences the agency drew, and limit our review to determining (1) whether "there is

substantial evidence in the record as a whole to support the agency's findings and

conclusions" and (2) whether "the administrative decision is premised upon an erroneous

conclusion of law." United Parcel Serv., Inc. v. People's Counsel for Bait. Cnty., 336 Md.

569, 577 (1994) (citations omitted). We will not "'make independent findings of fact or

substitute [our] judgment for that of the agency'"; we defer to any agency fact-finding or

inferences that have support on the record. Halici, 180 Md. App. at 248 (quoting Md.-Nat 'l

Capital Park & Planning Comm 'n v. Anderson, 395 Md. 172, 180-81 (2006)). We also give

'"considerable weight'" to the expertise of an agency in interpreting the statute that it

administers. Id. at 261 (quoting Miller v. Comptroller of Md., 398 Md. 272, 281 (2007)).

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But we review agency conclusions of law de novo, as '"it is always within our prerogative

to determine whether an agency's conclusions of law are correct, and to remedy them if

wrong.'" Miller, 398 Md. at 282 (quoting Schwartz v. Md. Dep 't of Natural Res., 385 Md.

534, 554 (2005)).

In this case, the circuit court's decision turned in large measure on a significant legal

error it found in the County Board's analysis. While acknowledging an employer's authority

to "conduct voluntary medical examinations [as] part of an employee health program" and

"make inquiries into the ability of an employee to perform job-related functions," 42 U.S.C.

§ 12112(d)(4), the circuit court held that employers can obtain and use employee medical

information under limited circumstances and only for purposes consistent with the ADA, and

that the ERS Board strayed beyond these permissible uses when it mined Mr. Dawson's

medical history to find "untruthfulness" with his physicians and the Board. Importantly, the

circuit court found that the decisions of the ERS Board and County Board "were based

entirely upon the erroneous conclusion of law that Mr. Dawson's medical history could be

released and investigated for his truthfulness in order for him to obtain retirement benefits."

On appeal, the ERS Board has left this critical premise unchallenged. Its brief

includes only one passing mention of the ADA, when it described Mr. Dawson's assertion

that the Board's medical inquiry violated the ADA as "inexplicable." The fact that we look

through the circuit court's decision to review the ERS Board's does not, however, mean that

we or the Board can ignore the legal error the circuit court identified in the County Board's

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decision. Maryland Rule 8-504(a) requires an appellant's brief to include the "legal

propositions involved" and present "[a]rgument in support of the party's position on each

issue." Md. Rule 8-504(a)(3) & (6); see also State v. Jones, 138 Md. App. 178, 230 (2001),

a ff d, 379 Md. 704 (2004) (*"[I]t is necessary forthc appellantto present and argue all points

of appeal in his initial brief.'" (quoting Fed. Land Bank of Bait., Inc. v. Esham, 43 Md. App.

446, 457 (1979))). Failing to raise or argue an issue in the brief can result in waiver of the

issue on appeal. See Health Servs. Cost Review Comm 'n v. Lutheran Hosp. of Md., Inc., 298

Md. 651,664 (1984) ("[A] question not presented or argued inan appellant's brief is waived

or abandoned and is, therefore, not properly preserved for review."); Green v. N. Arundel

Hosp. Ass'n, Inc., 126 Md. App. 394, 426 (1999), ajfd, 366 Md. 597 (2001) (declining to

address any of the issues that were raised in appellants' brief but not mentioned in the brief's

questions presented). And it surely is not enough, in the face of the circuit court's express

decision that the County Board relied on evidence obtained in violation of the ADA, simply

to state that the Board decided the case correctly and that the circuit court's decision is

"inexplicable" without arguing why or even attempting to rebut the circuit court's analysis.

Moreover, and without opining more broadly on the interplay between the ADA and local

disability benefits determinations, the Boards' reliance on long-past medical records was

misplaced in this case, where the fact of Mr. Dawson's present disability was never in

question. Under these circumstances, we will not disturb the circuit court's conclusion that

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the ADA barred the ERS and County Boards from using Mr. Dawson's medical history to

draw conclusions about his truthfulness.

This means that Mr. Dawson's medical records are not available to support the County

Board's conclusion that Mr. Dawson failed to serve the County honorably and faithfully.

And because that leaves no other evidence in the administrative record to support the County

Board's decision that Mr. Dawson failed to deliver honorable and faithful service, we agree

that the Board's decision denying disability retirement benefits to Mr. Dawson is not, and

cannot be, supported by substantial evidence.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

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