IN THE CHANCERY COURT OF HAMILTON COUNTY, TENNESSEE

CRAIG WILLIAM JOEL,

Petitioner,

v. Docket No. ick- 0173

CHATTANOOGA FIRE AND
POLICE PENSION FUND,

Respondent.

FIRST PETITION FOR WRIT OF CERTIORARI

AND FOR DECLARATORY RELIEF

Petitioner Craig William Joel ("Petitioner"), by counsel and pursuant to Tenn.

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

JRD benefits. In support his Petition, Petitioner shows:

I. JURISDICTION

1. Petitioner is a citizen and resident of Hamilton County, Tennessee.

2. Respondent Chattanooga Fire and Police Pension Fund (the "Fund") is an

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.

3. The Fund is administered and governed by a Board of Directors,

consisting of three active members of the Chattanooga Police Department, three active

members of the Chattanooga Fire Department, a member appointed by the Mayor of

Chattanooga, and a member appointed by the Chattanooga City Council.

4. The acts complained of in this Petition occurred in Hamilton County,

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

actions of the Fund relative to Petitioner.

6. Respondent is properly named pursuant to Tenn. Code Ann. § 27-9-104.

7. Jurisdiction and venue are proper in this Court.

II. BACKGROUND AND FACTUAL BASIS

8. The Fund is a defined benefit plan and provides members of the

Chattanooga Police Department and the Chattanooga Fire Department with certain

retirement, disability, and death benefits.

9. The Fund provides benefits to a firefighter or police officer who becomes

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,

Any member of the Fire Department and Police

Department who, while engaged in the discharge of his or
her duties, becomes disabled, he or she shall be placed on a
pension and paid sixty percent (60%) of the member's Base
Salary as computed over the highest three (3) years of Base
Salary during the member's years of active service,
regardless of the length of time served.

Chattanooga, TN Code of Ordinances, DIVISION 5 - FIRE AND POLICE PENSION

FUND, Sec. 2-410. - Disability or death benefits,(c)(1).

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

Code defines a job-related disability as:

...a medically determinable impairment proven by

satisfactory, objective proof, which in the sole opinion of
the Board prevents such member from performing duties in
the Fire or Police Department. Notwithstanding the
foregoing, if a member is granted a disability for a mental
health disorder, including but not limited to Post-Traumatic
Stress Disorder, such member shall be removed from the
pension rolls if such member goes to work, either on a paid
or volunteer basis, as a paramedic, emergency medical
technician, rescuer or in any other position referred to as a
"first responder".

Chattanooga, TN Code of Ordinances, DIVISION 5 - FIRE AND POLICE PENSION

FUND, Sec. 2-410. - Disability or death benefits,(f)(5).

12. The Fund's Disability Benefits Policy specifically recognizes that a

Member can suffer a job-related disability and qualify for benefits as a result of a "mental

health disorder" such as PTSD and provides:

To qualify for a job-related disability based on a mental

health disorder, such as Post Traumatic Stress Disorder
("PTSD"), Applicants must provide evidence satisfactory to
the Board which shows:

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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?

ii. that the disability a direct result of a traumatic event

that is:

a. identifiable as to time and place?

b. undesigned [sic] and unexpected?

c. caused by a circumstance external to the member

(not result of pre-existing disease that is
aggravated by or accelerated by the work)?

iii. that [a] traumatic event occurred during and as a

result of Applicant's regular or assigned duties?

iv. symptoms that have arisen in response to that

traumatic event are aggravated by performing a
Participant's regular or assigned duties?

v. that the disability was not the result of the Applicant's

willful negligence

If the Applicant is seeking a disability retirement based on

mental health disability caused by a mental stressor without
any physical impact or injury, the Applicant must establish
that the disability result(s) from direct personal experience
of a terrifying or horror-inducing event that involves actual
or threatened death or serious injury, or a similarly serious
threat to the physical integrity of the Applicant or another
person.

"General Framework for PTSD Legal Review" (Transcript, P. 2).

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.

14. Petitioner is an Active Member of the Fund.

15. Petitioner's Final Average Salary as that term is defined for purposes of

setting his benefits under the Fund is $63,026.83.

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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

casualty event. On that day, Muhammad Youssef Abdulazeez, a naturalized American

citizen who was born in Kuwait, conducted an active shooter terrorist attack on two

military installations in Chattanooga (the "Reserve Center Shooting Attack.")

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.

18. Abdulazeez drove to a U.S. Navy Reserve center on Amnicola Highway,

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

extra ammunition. A Saiga-12 shotgun was recovered from his car.

22. An FBI investigation subsequently determined that Abdulazeez was a

"self-radicalized" terrorist, and that his actions were "motivated by foreign terrorist

organization propaganda."

Craig Joel's Service on July 16, 2015

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.

24. Upon arrival, Petitioner helped evacuate into an ambulance a Chattanooga

Police Officer who had been shot. This officer was a personal friend and former

roommate of Petitioner. He then participated in the evacuation in an armored vehicle of

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

6
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

for almost 40 consecutive hours.

25. Petitioner's actions in response to and in the aftermath of the Reserve

Center Shooting Attack were appropriate and were in conformity with his sworn duties as

a police officer. Petitioner subsequently received two commendations from the

Chattanooga Police Department (a Leadership Award and a Lifesaving Award) for his

actions in connection with the Reserve Center Shooting Attack.

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

Petitioner and in comparison to the typical experiences and duties of a Chattanooga

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

7
has a stressful, negative impact sufficient to possibly overwhelm the usually effective

coping skills of either an individual or a group."

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

with multiple fatalities and mass casualties.

30. As a result of the traumatic experience of the Reserve Center Shooting

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

experiences intense anxiety, chest tightness, shortness of breath, palpitations, sweating,

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,

and have caused him to be depressed.

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.

32. On February 2, 2018, while off duty, Petitioner was involved in a

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,

and this investigation was ultimately administratively closed with no finding.

8
 Craig Joel's Permanent Chronic PTSD, his Permanent Disability,
and his Application for Disability Benefits

33. On February 6, 2018, Petitioner sought assistance through the City of

Chattanooga's Employee Assistance Program, and met with social worker Freda Cook

LCSW.

34. On April 13, 2018, Petitioner underwent a psychiatric independent

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

Petitioner's intoxication on February 2, 2018 was directly related to his medical

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

degree of medical certainty.

35. On or about April 2, 2018, Petitioner submitted a claim to his employer,

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

9
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

provided certain medical payments benefits to Petitioner.

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

incidents involving exposure to violence" during Petitioner's service as a police officer.

"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

"activated" on February 2, 2018 as a result of a disturbing encounter Petitioner had

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

10
was rendered by Dr. Auble within a reasonable degree of medical certainty, and Dr.

Auble's opinions were expressed within a reasonable degree of medical certainty.

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

application for JRD benefits. Despite overwhelming and uncontroverted medical

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

information regarding and considered Petitioner's off-duty conduct on February 2, 2018,

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.

Further, Petitioner's off-duty conduct has no relevance in connection with the

determination of whether he is entitled to JRD disability benefits due to medical

condition that prevents him from performing his sworn duties as a police officer.

11
 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

Internal Affairs Unit of the Chattanooga Police Department, which investigated

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.

Craig Joel's loss of Health Insurance Coverage

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

a medically disabled retiree of the Chattanooga Police Department.

III. CAUSES OF ACTION

Writ of Certiorari

46. Petitioner now petitions this Court to overturn the decision of the Fund

denying Mr. Joel's application for JRD benefits.

47. T.C.A. § 27-9-102 "Contents and Filing of Petition" states as follows:

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.

Tenn. Code Ann. § 27-9-102.

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:

The court may affirm the decision of the agency or remand

the case for further proceeding. The court may reverse or
modify the decision if the rights of the petitioner have been
prejudiced because of the administrative findings,
inferences, conclusion, or decisions are:

1) In violation of constitutional statutory provisions;

2) In excess of the statutory authority of the agency;

13
 3) Made upon unlawful procedure;

4) Arbitrary or capricious or characterized by abusive

discretion or clearly unwarranted exercise of
discretion; or

(a) Unsupported by evidence which is both

substantial and material in light of the entire
record.

(b) In determining the sustainability of the

evidence, the court shall take into account
whatever the record fairly detracts from its
weight, but the court shall not substitute its
judgment for that of the agency as to the weight
of the evidence on questions of fact.

49. It is the contention of the Petitioner that the denial of his disability benefits

was:

a) Arbitrary and capricious

b) Characterized by an abuse of discretion; and

c) Clearly unwarranted exercise of discretion.

50. Petitioner further contends that the Fund did not follow its own procedures

and policy guidelines and therefore the procedure was unlawful.

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

light of the entire record.

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

14
contract of employment as a police officer with the Chattanooga Police Department and

as an active member of the Fund.

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.

54. Petitioner asserts that, pursuant to the Tennessee Declaratory Judgment

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

obligations of the parties relative to Petitioner's application for JRD benefits.

WHEREFORE, PREMISES CONSIDERED, the Petitioner prays that the

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.

5. Reverse Respondent's decision to deny Petitioner's application for

disability pension benefits, and declare that Petitioner has qualified for and
is entitled to receive JRD benefits from the Fund, retroactive to the date of
his medical retirement.

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.

EVA HARRIS ..1%__IUACKE

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

Counsel for Petitioner Craig William Joel

16
 IN THE CHANCERY COURT OF HAMILTON COUNTY, TENNESSEE

CRAIG WILLIAM JOEL,

Petitioner,

v. Docket No.

CHATTANOOGA FIRE AND

POLICE PENSION FUND,

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.

C aig William Joel

Sworq to and subscribed before me this

Z3rd day of Apra , 019.

otary Public
My commission expires: 572----2-°?-0