Arroyo denied reinstatement bid

Bodybuilder's tests called subjective

Neil Osborne (left), lawyer for Albert Arroyo (right), spoke out after yesterday's hearing. Osborne said Arroyo's back injury is so severe that he can no longer work as a fire inspector. (JIM DAVIS/GLOBE STAFF)

Bodybuilder Albert Arroyo lost his bid to return to the Boston Fire Department yesterday after Boston fire officials determined that new test results Arroyo submitted to prove he has a disabling back injury were not certified by a doctor and were too subjective to be reliable, according to two senior public officials briefed on the decision.

Arroyo submitted the results of an exam administered by a Worcester physical therapist that Arroyo's lawyer said proved he could not work an eight-hour workday.

But fire officials said the exam relied too heavily on the patient's statements to be objective, using factors such as how much or how high he could lift certain weights before saying he felt pain, the officials said.

Fire Department spokesman Steve MacDonald declined to comment on the reasons for the decision but said that, whatever the case, Arroyo will not be returning. "They reviewed the documentation he submitted, and we are not going to reinstate him," MacDonald said.

Arroyo's lawyer, Neil Osborne, would not say last night what Arroyo plans to do next.

"We haven't taken that step yet," he said.

Arroyo went out on injured leave and applied for a disability pension in April, but he participated in a bodybuilding contest in May. After viewing a video of the contest last month, Fire Commissioner Roderick Fraser ordered Arroyo back to work. When he did not show up, the commissioner ordered him removed from the payroll. Arroyo appealed that decision at a hearing Tuesday, and Fraser gave him until yesterday to turn in medical documentation to bolster his injury claim.

Osborne said the medical documentation consisted of results from a "functional capacity test" administered to Arroyo on July 30 at Fallon Clinic's Back to Work Center in Worcester. He said it proved that Arroyo's back injury is so severe that he can no longer work as a fire inspector and deserves a disability pension.

"The conclusion of the exam is he couldn't tolerate an eight-hour workday," Osborne said.

Employment law specialists said yesterday that Arroyo's best recourse after yesterday's decision is to appeal to the state Civil Service Commission, although they said it could be an uphill battle.

"He's in a tough spot," said Nicholas Anastasopoulos, a Worcester-based lawyer and member of the Massachusetts Bar Association's Labor and Employment Council. "Particularly given his physique, it is almost inconceivable that he could have a body like that and not bend and lift weights."

As a fire inspector, Arroyo does not have to carry heavy hoses and equipment or fight fires, but does have to get in and out of his vehicle, climb ladders, and sometimes crawl in tight spaces, fire officials said.

The Civil Service Commission often defers to what is called the "appointing authority," in this case, the City of Boston, Anastasopoulos said.

"The board isn't there to substitute its judgment for that of the appointing authority," he said. "If you've got an appointing authority saying if you can bodybuild you can be a fire inspector, that's where the fight's going to be."

Arroyo, 46, joined the Fire Department in 1986 and was on track to receive a disability pension before the video of the bodybuilding contest was published last month on Boston.com. He reported slipping on a staircase March 21 at a Jamaica Plain firehouse and injuring his back so severely that Dr. John Mahoney, a Dorchester neurologist and Arroyo's physician, wrote two weeks later that he was totally and permanently incapacitated and should be granted the pension.

The Boston Retirement Board rejected his application Aug. 4.

Arroyo's claim is one of dozens of questionable disability claims under investigation by federal authorities, said the officials, who spoke on condition of anonymity. The federal probe was prompted by a Globe report in January that found that 74 percent of Boston firefighter retirements between 2005 and 2007 were due to accidental disability, more than twice the rate of similarly sized cities. Firefighters granted disability pensions receive 72 percent of their salary tax free for life, regardless of their age.

Osborne, Arroyo's lawyer, said he had not decided whether his client will reapply for a disability pension or focus first on another bid to be reinstated.

Donovan Slack can be reached at dslack@globe.com.