
    No. 118-76.
    August 10, 1979
    Sheldon A. Fiedler, M.D.
   Military pay; separation for physical disability; preexisting injury not aggravated in service; DoD Dir. 1332.18. — Plaintiff contests his separation for physical disability from the United States Public Health Service (USPHS). Plaintiff is a medical doctor who was appointed to the Reserve Corps of the USPHS to be Chief of Anesthesiology at the USPHS New Orleans hospital. Prior to his appointment plaintiff underwent a preentry physical examination that failed to detect a loss of hearing. Soon after plaintiff assumed his duties at the hospital fellow physicians and staff complained about plaintiffs professional conduct and technical competence. The director of the hospital undertook a personal investigation of the allegations and concluded that plaintiff was suffering from a hearing disability. This suspicion, coupled with the complaints, prompted the director to suspend plaintiff and relieve him of his duties. A subsequent audiometric examination revealed that plaintiff had suffered a bilateral hearing loss, sensori-neural in nature, for frequencies above 1000 Hertz. This condition made it difficult for plaintiff to understand conversational speech in the presence of background noise. Moreover, it produced a hypersensitivity to sound that made plaintiff unable to withstand the amplification needed to utilize a hearing aid. A Medical Evaluation Board comprised of doctors from the hospital staff reviewed the extensive medical examinations conducted on plaintiff. The Board’s report was in turn reviewed by the Surgeon General’s Medical Review Board. It found plaintiff medically unfit to perform the duties of his grade and office by reason of a physical disability which was neither incurred nor aggravated by service in the USPHS. The Full and Fair Hearing Board affirmed the decision and made its report to the Surgeon General. Thereafter plaintiff was separated from the service. In his suit for back pay and other relief, plaintiff contends that the hearing disability was incurred or aggravated in service, that the defendant wrongfully failed to relocate him in a position consistent with his rank and grade, and that he was not afforded fair treatment due to bias and prejudice. On June 8, 1979, Trial Judge Kenneth R. Harkins filed a recommended opinion upholding plaintiffs separation from the USPHS, finding that plaintiffs loss of hearing was disabling for duties required of the Office of Chief of Anesthesiology. The trial judge concluded, inasmuch as none of the possible causes of plaintiffs condition were shown to have been operative during plaintiffs period of service, that the loss resulted from an acoustic trauma prior to plaintiffs appointment. Moreover, the aggravation of plaintiffs injury, manifested by an increased and painful sensitivity to sound, was found to be the natural progress of a preexisting injury, not the result of plaintiffs service. Secondly, defendant was under no obligation to relocate plaintiff. He was unable, due to his hearing loss, to perform all the duties of the office to which he was appointed to a degree that would reasonably fulfill the purposes of employment. Therefore the decision to separate plaintiff rather than relocate him was not wrongful. Finally, any bias or prejudice towards plaintiff held by members of the Medical Review Board or others, if such existed, was negated by the subsequent administrative and judicial reviews. Moreover, the acts of public officials are presumed to have been taken in good faith. Plaintiff was unable to show that the actions of the administrative boards were arbitrary or capricious or that their findings were unsupported by substantial evidence. On August 10, 1979 the court, by order, adopted the recommended decision as the basis for its judgment in this case and dismissed the petition.  