On petition for review of a decision of the Bureau of Justice Assistance in PSOB Claim No. 2004-13.
The opinion of the court was delivered by: Gajarsa, Circuit Judge.
Before MAYER, FRIEDMAN, and GAJARSA, Circuit Judges.
Petitioners Cindy Woodward and her children, Ashley Martin, Brandon Martin and minor Molly Woodward ("Petitioners"), are the family of Daniel Neil Woodward, a volunteer firefighter with the Blackman Florida Volunteer Fire Department. Mr. Woodward died in 2001 shortly after fighting a fire. Petitioners submitted a claim to the Bureau of Justice Assistance ("BJA") seeking death benefits under the Public Safety Officers' Benefits Act ("PSOBA"), 42 U.S.C. § 3796. The BJA Director ("Director") denied Petitioners' claim based on the conclusion that smoke inhalation was not a "substantial factor" in Mr. Woodward's death. For the reasons stated below, we reverse and remand.
On the evening of September 6, 2001, Mr. Woodward reported a fire occurring in the bathroom of his own home. The fire department responded with two fire engines within ten minutes. Mr. Woodward did not have his protective gear with him, but pulled the fire hose from the engine and assisted another firefighter for about fifteen to thirty minutes. After the fire was extinguished, Mr. Woodward walked around the lawn, leaned against his vehicle, and talked on his cell phone with his wife. About half an hour later, Mr. Woodward reported minor chest pain to the emergency medical technician on the scene. Initially, his pain responded to oxygen treatment, but returned several minutes later. Subsequently, Mr. Woodward had a seizure and stopped breathing. He was taken by ambulance to the hospital, but after significant efforts to revive him, he was pronounced dead.
The Florida State Medical Examiner's Office conducted an autopsy. Dr. Michael Berkland, the medical examiner who performed the autopsy, determined that Mr. Woodward died of natural causes. Shortly thereafter, the State of Florida completed an investigation of Dr. Berkland and found he had falsified several autopsy reports, including that of Mr. Woodward. The investigation revealed that the toxicology evidence cited by Dr. Berkland, allegedly showing no smoke inhalation, was entirely fabricated. The toxicology tests were never requested or performed. The State of Florida disciplined Dr. Berkland and amended Mr. Woodward's autopsy report to find that he died of probable smoke inhalation.
Before Dr. Berkland's falsification was discovered, the National Institute for Occupational Safety & Health ("NIOSH") had issued a report regarding Mr. Woodward's death. The report relied on medical conclusions consistent with the falsified findings of Dr. Berkland. The report also contained discussion of interviews of eyewitnesses by an independent investigator. It did not state whether any firefighters reported that Mr. Woodward inhaled smoke during the incident. After discovering Dr. Berkland's falsification of the autopsy report, NIOSH retracted the 2002 report and issued a revised report. The revised report advises that Mr. Woodward's cause of death cannot be determined with certainty, and speculates that one possible cause was smoke inhalation "either by itself or as a triggering agent for a heart attack or a cardiac arrhythmia." It also states that at least one firefighter reported that Mr. Woodward inhaled smoke during the fire, and notes that Mr. Woodward's electrocardiogram was not consistent with a heart attack.Due to the fact that Mr. Woodward's remains were cremated upon his death, it is impossible to perform a new autopsy to determine his cause of death with certainty.
On October 31, 2003, Petitioners filed a claim for death benefits with the Public Safety Officers' Benefit Office ("Office"). On February 9, 2004, the Office denied the claim concluding that Mr. Woodward's death was not a result of a personal injury covered by the PSOBA, but was the result of pre-existing coronary artery disease. Petitioners then requested a hearing officer review of their claim. Petitioners waived their right to a hearing before an independent hearing officer, but submitted affidavits in support of their claim.
Petitioners submitted affidavits from Kenneth Finkel, the Fire Chief, Stephen Marcotte, a member of the fire department, and Larry Matthews, the emergency medical technician who treated Mr. Woodward on the night of his death. Petitioners also submitted declarations from two physicians, Dr. DeSimone and Dr. Picketing, who provided medical opinions regarding the cause of Mr. Woodward's death. The two physicians opined that, considering the evidence other than the autopsy report, it was "impossible" to determine the cause of Mr. Woodward's death. Nonetheless, both physicians concluded that smoke inhalation was a "substantial factor" in Mr. Woodward's death. After reviewing Petitioners' evidence, the hearing officer determined that Mr. Woodward's death was not covered by the PSOBA. The hearing officer found that "the weight of the evidence shows that VFF Woodward had only been exposed to smoke for a short time, and for the next half-hour he did not show any respiratory effects of carbon monoxide inhalation as he engaged in salvage and overhaul activities."
On October 20, 2006, Petitioners appealed the hearing officer's determination to the Director and sought to introduce new evidence. Petitioners submitted the amended autopsy report, death certificate, and related documents. Given the unusual circumstance of an amended autopsy report and death certificate, the Director suggested remanding the case to a hearing officer for consideration of additional evidence. Petitioners waived their right to a new hearing, explaining that "additional factual discovery could not affect the result of the Final Agency Determination." Accordingly, the Director considered the claim for a final determination based on the existing evidence in the record.
On October 28, 2008, the Director issued a final determination denying benefits. The Director found it more likely than not that Mr. Woodward died as a result of atherosclerotic cardiovascular disease. Although the Director acknowledged that the original autopsy was no longer credible, he found the Woodward family did not sufficiently prove that Mr. Woodward died of smoke inhalation. The Director relied almost entirely on the NIOSH report, despite the fact that the report relied on Dr. Berkland's falsified autopsy. Moreover, the Director applied 28 C.F.R. § 32.4 (2007), a regulation implemented in 2006 which provides a more burdensome standard of proof for certain aspects of claims made under the amended version of the PSOBA. Thus, Petitioners were denied the death benefits due to their inability to produce certain medical evidence, which is unavailable as a result of Dr. Berkland's misconduct.
Petitioners timely appealed the Director's determination. We have jurisdiction over the appeal pursuant to ...