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Behan v. Firemen's Ret. Sys. of St. Louis

Court of Appeals of Missouri, Eastern District, Fourth Division

December 23, 2014

MARK BEHAN, Respondent,
v.
FIREMEN'S RETIREMENT SYSTEM OF ST. LOUIS, Appellant

Appeal from the Circuit Court of the City of St. Louis. Honorable David L. Dowd.

Nancy E. Emmel, Assistant City Counselor, St. Louis, MO, for appellant.

Mark R. Bahn Fenton, MO, for respondent.

Patricia L. Cohen, Presiding Judge. Roy L. Richter, J., and Robert M. Clayton III, J., concur.

OPINION

Page 219

Patricia L. Cohen, Presiding Judge

Introduction

The Firemen's Retirement System of St. Louis (FRS) appeals the trial court's judgment reversing the decision of the Board of Trustees of the Firemen's Retirement System (Board) to deny Mark Behan's application for accidental disability retirement benefits. On appeal, Mr. Behan claims that the trial court did not err in reversing the Board's decision because he filed his application for accidental disability retirement benefits within the five-year statute of limitations.[1] We affirm.

Factual and Procedural Background

Mr. Behan began working as a firefighter for the Fire Department of the City of St. Louis (Fire Department) in 1992, and he transferred to the fire marshal's investigative unit in 1995. During his nineteen-year tenure with the Fire Department, Mr. Behan investigated as many as 2,000 fires and 50 fatalities. Mr. Behan suffered no psychological disabilities prior to joining the Fire Department.

On May 3, 2002, Mr. Behan responded to a second alarm for a fire at the Gravois Refrigeration Company. In their efforts to extinguish the fire, two of Mr. Behan's co-workers and friends, Firefighters Rob Morrison and Derek Martin, died. Mr. Behan's investigation of this fire involved photographing the scene, interviewing witnesses, and seizing Mr. Morrison's and Mr. Martin's gear. Mr. Behan did not note any changes in his behavior immediately following the May 2002 fire.

In late 2007, Mr. Behan received a subpoena to testify in a deposition for a wrongful death action arising from the May 2002 fire. In preparation for his deposition, Mr. Behan studied photographs, reviewed the autopsy reports, and listened to the audio recordings " over a hundred times . . . in order to create a timeline and put everything in place." The audio recordings included " everything that transpired on radio, from the first calls concerning the fire, the dispatches, every company striking on the scene, communication between the companies, . . . any radio calls for distress, and everything clear through till [sic] the end of the incident," including Mr. Morrison's and Mr. Martin's " dying pleas."

In early 2008, after providing the deposition testimony, Mr. Behan began to suffer phobias, nightmares, difficulty sleeping, and suicidal ideation, and his " drinking increased significantly." In March 2008, Mr. Behan experienced his first " major panic attack" while riding an escalator at Busch Stadium.

Mr. Behan first visited Mary Carol Strauss-Barrett, a licensed clinical social worker, on April 28, 2008. On that date, Ms. Strauss-Barrett, diagnosed Mr. Behan with symptoms of post-traumatic stress disorder (PTSD), and she began counseling

Page 220

him two to three times per week.[2] On May 18, 2008, Ms. Strauss-Barrett concluded that Mr. Behan suffered " Single PTSD," a substance abuse disorder, and a co-morbid mood disorder.

In June 2008, Mr. Behan took a medical leave, and Ms. Strauss-Barrett referred Mr. Behan to Dr. Monica Franks, whom Mr. Behan visited approximately three times per week from June 2008 to August 2008. Mr. Behan returned to work when Dr. Franks determined he was fit for duty.

In Spring 2009, Mr. Behan sought care through the Fire Deparment's employee assistance program (EAP) because he " was getting offtrack [sic]." In March 2010, at the recommendation of his marriage counselor, Mr. Behan went to Hyland Behavioral Health Center at St. Anthony's Medical Center, ...


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